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[2025] QCA 129
respondent. The application for leave to appeal against sentence was refused; the sentence was not disturbed.
The Court of Appeal refused OAE's application for leave to appeal his sentence. It held that pointing to different sentences in other torture cases did not prove that his sentence was excessive. The sentencing judge had considered his mental health, drug use, guilty plea, remorse and the complainant's supportive views, alongside the seriousness of the violence, his history and risks to the community. The Court was not satisfied that the sentencing judge had made an error or that the sentence was unreasonable or plainly unjust.
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2,225 words · generated 07/10/2026
OAE applied for leave to appeal against sentence. He had pleaded guilty to two offences arising from one episode on 2 November 2023: torture, identified in the judgment as a domestic violence offence, and contravention of a domestic violence order with a circumstance of aggravation ([3]-[6]). The Court of Appeal's judgment was delivered on 22 July 2025 by Mullins P, Bradley JA and Morrison AJA. Mullins P and Bradley JA agreed with Morrison AJA's reasons ([1]-[2]).
No linked legislation citations have been extracted yet.
The complainant and OAE had been in a relationship for about two years and were living together. A temporary protection order made in August 2023 prohibited OAE from contacting her or coming within 100 metres of her. Despite the order, they continued to live together at her home ([4], [8]). The judgment records that OAE was 33 at the time of the offending and the complainant was 38 ([7]).
The agreed facts described a prolonged assault in the complainant's home. The complainant tried to retreat from OAE, but he pursued her. He repeatedly struck and whipped her with objects including a phone charger, an electric cord, a whipper snipper, a broom handle and a dog leash. He punched and stomped on her, strangled her with the leash, dragged her around the unit, and poured a mixture containing bleach over her ([11]-[21]). She was in and out of consciousness, in severe pain, and sustained multiple injuries, including a fractured wrist, facial bruising and swelling, and voice problems after the strangulation ([9], [22]-[23]).
The District Court imposed a head sentence of five-and-a-half years' imprisonment for torture. It set no parole eligibility date, meaning, as the sentencing remarks stated, that parole eligibility would arise automatically at the halfway point. The court declared 278 days of presentence custody as time served. On the protection-order count, OAE was convicted but not further punished ([5], [36]).
The sole appeal ground was manifest excess. OAE argued that the sentencing judge should have given greater recognition to his mental health circumstances and the complainant's views, including by setting an earlier release or eligibility date. He also argued that the complainant's views had not received enough weight ([37]-[38]). The Court of Appeal refused leave ([53]).
The Court applied the established test for manifest excess. As stated at [39], relying on R v Abdullah [2023] QCA 189, an applicant cannot succeed merely by showing that their sentence differed, even markedly, from sentences in other cases. The difference must demonstrate a misapplication of principle or show that the sentence is unreasonable or plainly unjust.
The applicant relied on R v Ellis, R v GBI and R v Galleghan as comparative cases. The Court considered each, but emphasised that the circumstances and sentencing features differed. In Ellis, the torture count attracted six-and-a-half years, but there was also a separate count involving more than 15 burns inflicted with a heated trowel, and the sentence reflected totality as well as a serious violent offence declaration ([42]). In GBI, the Court identified the nature and volume of the assaults, the controlling and denigrating behaviour, and the overall sentence for two offences as relevant features ([43]). Galleghan involved an eight-year sentence and a serious violent offence declaration, as well as features including threats to kill an intervenor and an attempted plan involving a shipping container ([44]). The Court concluded that these cases did not compel a finding of error in OAE's case ([41]-[45]).
The reasons do not treat comparable sentences as irrelevant. Rather, the point is that factual comparisons are not a substitute for identifying appellate error. As the Court put it, the fact that a sentence is different, or markedly different, does not itself establish manifest excess ([45]).
The Court also rejected the argument based on mental health. The sentencing judge had considered the psychologist's report and the possible relationship between OAE's complex PTSD, drug use and offending. The Court described that causal connection as indirect: the difficult events in OAE's life were linked to PTSD, and drug use was one maladaptive way of coping with it. The direct connection to the offending was his drug-induced state on the night ([47]). The Court was satisfied that the sentencing judge had taken the material into account when fixing the head sentence ([48]).
The complainant's supportive views were also considered. The sentencing judge had described them as benevolent and noted her wish that OAE have an opportunity to rehabilitate, but said that those views could not overwhelm an appropriate sentence ([30]). The Court considered that approach proper: the complainant's views were relevant in the sentencing process, but could not displace an otherwise just sentence ([49]).
The Court further identified countervailing matters relevant to the sentence. These included OAE's criminal history, his defiance of the protection order, and the admitted intention to inflict severe pain through prolonged, unprovoked violence ([50]). It also referred to the psychologist's assessment that risk could change quickly with circumstances, with substance use and maladaptive coping skills being significant risk factors ([51]).
Finally, the Court addressed the submission that the complainant's views had been given insufficient weight. At [52], it relied on Gronow v Gronow for the principle that a finding of inadequate or excessive weight given to a factor is not, on its own, enough to justify an appellate court substituting its discretion. The Court therefore found no basis to conclude that the sentence was manifestly excessive ([53]).
This judgment applies existing principles rather than announcing a new sentencing rule. The central test is set out at [39], through the Court's reference to Abdullah: comparison with other sentences is insufficient unless the difference demonstrates a misapplication of principle or makes the sentence unreasonable or plainly unjust.
The judgment also applies the general appellate-discretion principle drawn from Gronow. At [52], the Court cautions against treating a complaint about the weight assigned to an individual factor as a sufficient ground for appellate intervention. That principle is relevant here because the applicant's argument included the contention that the complainant's views should have received more weight.
On the role of comparable cases, the judgment reinforces a distinction between using other decisions as context and treating them as a sentencing range or answer. The sentencing judge had explained that other decisions were not determinative and did not set a range of permissible sentences, although they could assist in understanding relevant factors ([36]). The Court of Appeal's analysis is consistent with that approach: it examined the cited cases, identified their distinct features, and asked whether they demonstrated error in this sentence ([41]-[45]).
The judgment also illustrates how individual mitigation is considered alongside the seriousness of offending, public protection and other sentencing purposes. The sentencing judge considered the plea, remorse, mental health, substance use, prospects of rehabilitation and the complainant's views. Those matters were assessed alongside the prolonged violence, the breach of the protection order and the sentencing purposes described at [28]-[29], [33]-[36]. The appellate decision does not establish a specific weighting rule for mental health or victim views; it holds that, on the facts recorded, their consideration did not establish manifest excess.
The judgment does not set out a later change in the law, nor does it purport to alter the principles in Abdullah or Gronow. It is best read as an application of those principles to a particular leave application.
At [39], the Court states that the sentence must be shown to involve a misapplication of principle or to be unreasonable or plainly unjust. In plain English, a different sentence in another case is not enough. An appeal requires a demonstrated problem with the sentencing decision, not simply disagreement about the result.
At [36], the sentencing judge observed that other cases do not determine the sentence or create a range of permissible sentences, but may help explain how factors should be treated. In plain English, comparable decisions can provide context, but they are not a tariff that mechanically fixes the sentence.
At [45], the Court says that a sentence being different, even markedly different, from sentences in other matters does not establish manifest excess. This is the judgment's clearest statement about the limits of case comparison. The relevant question remains whether the difference reveals an error or an unjust or unreasonable outcome.
At [47]-[48], the Court explains its view of the mental health evidence. The relationship between OAE's PTSD and the offending was indirect, through substance use, but the sentencing judge had considered the material. In plain English, the Court did not treat the diagnosis as irrelevant; it concluded that the sentencing judge had taken it into account and that it did not establish appealable excess.
At [49], the Court says the complainant's views were considered, but could not displace an otherwise proper sentence. In plain English, the victim's views formed part of the sentencing material, but the Court did not treat them as controlling the sentencing outcome.
At [52], the Court applies Gronow to the submission about insufficient weight. In plain English, saying that a judge should have given more weight to one factor does not, without more, establish that an appellate court should replace the sentencing judge's decision.
At [53], the Court gives its conclusion: it was unable to find that manifest excess had been demonstrated, and leave was refused. This resolves the application without changing the sentence.
The judgment is relevant to sentence applications where the asserted error is that the sentence is manifestly excessive because it differs from sentences imposed in other cases. It indicates that a party relying on comparators needs to address their factual and sentencing differences and explain how the challenged sentence demonstrates a misapplication of principle or is unreasonable or plainly unjust ([39], [41]-[45]).
It is also relevant where an appeal relies on the claim that the sentencing judge gave insufficient weight to a mitigating or contextual factor. The judgment applies Gronow to make clear that such a complaint alone does not establish a basis for appellate substitution ([52]). The decision does not mean that the weight assigned to a factor can never contribute to an appeal; its stated point is that the complaint is not sufficient by itself.
The case provides an example involving mental health evidence, substance use, a guilty plea, remorse and a victim's supportive views, considered against serious and prolonged domestic violence, a breach of a protection order, criminal history and risk evidence ([24]-[35], [47]-[51]). It may therefore be useful when analysing how a sentencing judge's treatment of mitigation is described in the reasons. It does not establish that the same sentence, parole setting or weighting would apply in another case with different facts.
The judgment concerns leave to appeal on a sole ground of manifest excess. It should not be read as deciding a different ground, such as a specific error in the sentencing judge's fact-finding or application of a statutory provision. The reasons focus on whether the matters advanced by this applicant met the manifest excess test.
The supplied judgment contains no information about later judicial treatment of R v OAE. It records its own treatment of earlier authorities, not decisions delivered after 22 July 2025. On the material provided, it is therefore not possible to say whether later courts have followed, distinguished or otherwise treated this judgment.
The authorities that R v OAE itself cites are identifiable from its reasons. Abdullah is cited for the manifest excess test at [39]. Ellis, GBI and Galleghan are considered as comparators at [42]-[44]. Gronow is cited at [52] for the proposition about inadequate or excessive weight in the appellate review of discretion. These are relationships within the present judgment and do not establish how later courts have treated R v OAE.
The judgment does not attempt to specify how much weight a victim's views should receive in sentencing generally. It decides only that, in this case, the sentencing judge had considered the complainant's views and that they could not displace an otherwise proper sentence ([30], [49]). Questions about how such views interact with other sentencing purposes in different circumstances remain outside the reasons.
Nor does the judgment set a general rule for the effect of a mental health condition on sentence. It describes the evidence before the sentencing judge, including the indirect link between PTSD and offending through drug use, and concludes that the material was taken into account ([33], [47]-[48]). It does not state that a particular diagnosis or causal pathway must produce a particular reduction.
The case also does not define a general sentencing range for torture offences. The sentencing judge expressly said that comparable decisions did not set a permissible range ([36]), and the appellate court explained why the cited cases did not demonstrate error here ([41]-[45]). The judgment therefore leaves sentence assessment dependent on the circumstances and the applicable principles in each case.
Finally, the reasons do not decide the likely outcome of a different appeal based on a more specific alleged error. They address the sole ground advanced, manifest excess, and conclude that it was not established on this record ([6], [53]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v OAE [2025] QCA 129
PARTIES: R / v / OAE / (applicant)
FILE NO/S: CA No 183 of 2024 / DC No 1439 of 2024
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Brisbane – Date of Sentence: 6 August 2024 (Rosengren DCJ)
DELIVERED ON: 22 July 2025
DELIVERED AT: Brisbane
HEARING DATE: 16 July 2025
JUDGES: Mullins P, Bradley JA and Morrison AJA
ORDER: The application for leave to appeal against sentence is refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced after pleading guilty to one count of torture (domestic violence offence) and one count of contravention of a domestic violence order, with a circumstance of aggravation – where a head sentence of five and a-half years with no parole eligibility date was imposed – where the applicant submits that an earlier release or eligibility date should have been set – where the applicant submits that the sentencing judge should have afforded more weight to the presence of some mitigating factors – where the applicant submits that the sentencing judge should have afforded more weight to the complainant’s views – whether the sentence was manifestly excessive / Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63, cited / R v Abdullah [2023] QCA 189, cited / R v Ellis [2018] QCA 70, considered / R v Galleghan [2017] QCA 186, considered / R v GBI [2022] QCA 28, considered
COUNSEL: J K Kennedy for the applicant (pro bono) / D Kovac for the respondent
SOLICITORS: Aboriginal and Torres Strait Islander Legal Service for the applicant (pro bono) / Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I agree with Morrison AJA.
BRADLEY JA: I agree with Morrison AJA.
MORRISON AJA: On 6 August 2024, the applicant was sentenced, after pleading guilty to two counts, namely:Count 1 – Torture (Domestic Violence Offence); andCount 2 – Contravention of a domestic violence order, with a circumstance of aggravation.
Both counts arose out of the one set of circumstances which occurred on 2 November 2023. Though I will deal with those circumstances in greater detail later in these reasons, they can be summarised in this way:the applicant and the complainant were living together having been in a relationship for about two years; the relationship began to deteriorate due to their use of cannabis and amphetamines;because of physical disputes between them, a temporary protection order was put in place, in favour of the complainant;on 2 November 2023, whilst affected by amphetamines, the applicant commenced a series of assaults on the complainant which included: (i) whipping or hitting her about her body using items such as a phone charger, electric cord, dog leash, a whipper snipper and a broom handle; (ii) strangling her with a dog leash; (iii) stomping on her head, punching and hitting her to the face; (iv) tying her hands and dragging her through the unit; and (v) pouring bleach over her body.
The sentence imposed was a head sentence on count 1 (torture) of five and a-half years’ imprisonment with no parole eligibility date set. A total of 278 days of presentence custody was declared as time served under the sentence. On count 2, the applicant was convicted but not further punished.
The applicant’s application for leave to appeal relies on the sole ground that the sentence imposed was manifestly excessive.
Circumstances of the offending
The circumstances of the offending were agreed in a statement of facts which was before the learned sentencing judge. That revealed that the applicant was 33 years old at the time of the offences and the complainant was 38.
In August 2023, a temporary protection order was put in place in favour of the complainant. The order prohibited the applicant from contacting the complainant or coming within 100 metres of her. Despite that, the applicant continued to live with the complainant in her home.
The agreed statement of facts then set out a short summary of the offending much as is set out in paragraph [4] above, including that the complainant floated in and out of consciousness throughout the offending and that she was in excruciating pain.
The agreed account of the offending was as set out below.
At around 1 am on 2 November 2023, a fight ensued between the applicant and the complainant. Although she retreated into the main bedroom to get away from him, he pursued her.
While the complainant undressed and removed her jeans, the applicant walked in. He flicked her in the face, pushed and jabbed her, she retreated into the ensuite of the bedroom, locked herself in and told him she would not put up with his "shit". At this stage, she was only wearing a bra and a shirt and was unclothed from the waist down.
The applicant yelled and banged on the door of the ensuite. The complainant yelled for her neighbours to call the police. However, the applicant threatened to kill her before the police arrived. He walked to the back verandah, pulled the security screen off the ensuite window, and attempted to climb into the room. He tried to reach for her, but eventually gave up and walked back into the house and managed to unlock the door to the ensuite.
The complainant ran out of the ensuite and towards the head of the bed. Her dog also ran to her, while the applicant remained at the bottom of the bed and jammed the complainant and her dog into the wall with the bedframe. She pleaded with him to stop, but he ignored her.
The applicant picked up several items and hit the complainant across her bare lower body. She could not recall every single item he hit her with, as she was in and out of consciousness. However, he repeatedly whipped her legs with a mobile phone charger with a broad connecter attached, which stung each time it connected with her bare body. She tried to escape, but there was nowhere to go as she was jammed between the bed and the wall.
At some point, the complainant was knocked out, and was dragged to the floor of the bedroom by the applicant, where he continued to assault her with other items, including a whipper snipper and a broom handle. He hit her repeatedly and so hard that both the whipper snipper and the broom handle broke. While he hit her, he said “ ”. To make him stop, she agreed and told him that she would tell people that she hit her head on the closet.
The sentencing remarks
The learned sentencing judge noted that the maximum penalty for count 1 was 14 years’ imprisonment. Her Honour also accepted that the applicant had made an early guilty plea, thus saving the State time, resources and expense, and sparing the complainant from the need to give evidence. Her Honour accepted, too, that the applicant was remorseful.
Having set out the facts of the offending from the agreed statement, her Honour turned to the applicant’s personal circumstances. She noted that he was 34 at the date of sentencing and had a criminal history consisting of multiple breaches of probation orders. Her Honour considered that the present offences were a “very, very serious escalation in your offending”.
Her Honour examined the circumstances of some previous sentences imposed on the applicant in 2020, 2021 and 2022 for contravention of a domestic violence order in favour of the complainant (2020), breach of bail, wilful damage, enter a dwelling, and failure to appear, failure to comply with a community services order, and contravention of a domestic violence order (2022). The circumstances surrounding the 2020 contravention of a domestic violence order involved each of the applicant and complainant having injected amphetamines, after which he became violent and began to attack her in the bedroom.
Her Honour made it clear that the applicant was not being sentenced for those earlier entries in his criminal history, but “what they show is that this offending is not an isolated aberration”.
Her Honour then turned to the offending that is the subject of this appeal. Her Honour noted that s 9(3) of the Penalties and Sentences Act 1992 were relevant, in that there was no requirement that imprisonment should be imposed only as a last resort. Her Honour noted the purposes of sentencing, namely, to punish to an extent that was just, to provide conditions to assist rehabilitation, to deter the applicant or others from committing a similar offence, to make clear the community’s denunciation of the conduct, and to protect the community.
Her Honour then noted a number of factors which characterised the offending conduct and revealed her Honour’s process of reasoning:the offending was “very serious, as is reflected by the maximum penalty”;the offending was “unprovoked, protracted perpetration of violence of a cruel, callous and brutal nature”;it could be described as “a savage beating, involving multiple attacks in different forms, including with weapons, including when the complainant was in multiple defenceless positions”;the offending included extended violence such as punching, a threat to kill, hitting and whipping the complainant, knocking her out and dragging her on more than one occasion, as well as stomping on her head;the violence also included repeatedly hitting her with a part of a door and pouring bleach over her;by virtue of the plea of guilty, the applicant accepted that it was his intention to inflict severe pain and suffering on the complainant;the offending was a “gross abuse of trust”, as it occurred in the complainant’s home and in contravention of a domestic violence order;the applicant had been using cannabis, methylamphetamine and GHB on the day of the offending, and had not taken GHB before; andwhilst he was not able to recall the offending the applicant accepted he had done it and was sorry.
“I have read what the complainant has had to say about your offending in the various emails that have been tendered. It talks about her hopes for you. It is a very benevolent attitude. She would like for you to be given the opportunity to rectify your mistakes. What she has to say, though, cannot, of course, be allowed to overwhelm an appropriate sentence.”
The learned sentencing judge then turned to the report and evidence of Mr Innes a psychologist. That report revealed the applicant’s prejudicial background, being a witness to, and participant in, frequent domestic violence. It also recorded that even with that prejudicial background the applicant was able to complete year 12, undergo an apprenticeship, and work as a trades assistant in the mines. The applicant lost his job because of drug use.
Her Honour noted that drugs had been a problem for the applicant, having been introduced to cannabis when he was nine and started using it when he was 16, and using other drugs such as speed, ice, opioids, cocaine and liquid fantasy (or GHB). The applicant was about 23 when he was diagnosed with a drug-induced psychosis.
Her Honour then addressed the substance of the report and evidence by Mr Innes in these terms:
“Mr Innes did not have access to any of your medical records, but on the basis of your reporting, he did consider that you had a substance abuse disorder. He considered that on account of the multiple forms of childhood trauma you have been exposed to, which includes impulsivity, anxiety and depressive symptomatology, he thought you attempted to suppress with your drug use, that you also have complex PTSD. While your diagnoses and prejudicial background are relevant to understanding your personal circumstances, the factual background against which the offending occurred, and may well reduce your moral culpability and the deliberation involved with your offending, it is also these same very factors that increases the importance of protecting the community from you and potentially making you a more intractable subject for reform. What I am saying is that the matters addressed in the psychologist’s report and the subject of lengthy oral submissions by your counsel may seem, on one view, to lead to a lenient sentence, and on another, to a sentence which is more severe.”
The learned sentencing judge noted the psychologist’s opinion that prison would be harder for the applicant than for someone without moderate depression and severe anxiety. In terms of risk of reoffending, her Honour noted the psychologist’s obvious point, that the applicant’s ceasing drug use would reduce his risks.
Her Honour then referred to the prognostic factors applicable to the applicant:
“Apart from your substance abuse disorder, the other poor prognostic factors for you are the frequency and intensity of your symptoms and the prolonged period they have been untreated for. There is also your maladaptive defence mechanisms and significant destabilising facts, such as financial and housing insecurity, being away from your children, and lack of social supports. The good prognostic factors for you are your past resilience, future plans, and your willingness to commit to a mental health intervention plan. Mr Innes was reserved about your prognosis. He thought the significant psychosocial stresses in the future would increase your risk of suffering a relapse of your mental health and substance use. While you are not without hope of rehabilitating, your prospects in this respect are considered guarded.
To your credit, I am told that you have been attending AA meetings in jail. You want to return to work in drilling, and live with your brother in Gladstone on your release.”
“Of course, decisions in other cases are not determinative of the sentence in this case and they do not set a range of permissible sentences. However, they may assist in understanding how the various relevant factors should be treated in deciding the sentence. What may give rise to a precedent is a statement of principle that affects how the discretion should be exercised.
Balancing all of the relevant considerations in relation to count 1, I intend to reflect your plea, the contents of Mr Innes’s report that I have summarised, in particular as to your moral culpability, and your other mitigating factors that I have summarised in fixing the head sentence. For that count, I order that you be imprisoned for a period of five and a-half years. I am not persuaded to make a Serious Violent Offence declaration as the aggravating effect of that declaration cannot be ignored. Having said this, I am satisfied that the circumstances here which make your offending very serious, which I have summarised, mean that the protection of the public and adequate punishment means that I am not setting a parole eligibility date. This means that you will become eligible for parole automatically at the halfway mark of this sentence.”
The applicant’s submissions
Mr Kennedy, appearing for the applicant, referred to three decisions of this court, namely, R v Ellis,1 R v GBI2and R v Galleghan3 and submitted that as a matter of instinctive synthesis, bearing in mind those three cases as yardsticks, the sentence on the applicant was manifestly excessive. The point made was that Ellis, GBI and Galleghan did not involve mitigating factors such as (i) the applicant’s mental health condition, and (ii) the express views of the complainant. It was urged that those two factors, either alone or in combination, warranted further recognition in the imposition of the sentence, by setting a release date or an eligibility date at one-third of the sentence.
The other submission was that the complainant’s views were relevant and should have been afforded more weight in the exercise of the court’s discretion.
Consideration
“… to succeed on an application on this ground it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable of plainly unjust’.”
In my respectful view, the applicant cannot meet the test of showing manifest excess in this case.
First, reference to Ellis, GBI and Galleghan does not compel the conclusion that there was any misapplication of principle or that the sentence was unreasonable or plainly unjust. True, it is, that they do not involve a mental health condition or support for the victim, as is the case here, but as is often the case, the so-called comparable cases come with their own set of facts and influencing aspects.
Thus, in Ellis the torture count involved a prolonged series of attacks which, itself, attracted a sentence of six and a-half years, and a declaration that it was a serious violent offence. However, count 3 in that case (malicious act with intent) involved the offender using a heated trowel to inflict more than 15 burns to the complainant’s upper thigh and left leg, resulting in partial thickness burns, removal of a superficial skin layer and disfigurement. That offence by itself attracted a sentence of six years’ imprisonment. However, the question of totality of the offending was taken into account in imposing the sentence on the torture count. That and the fact that an SVO declaration was imposed, render Ellis of little assistance in this case.
GBI involved torture which attracted a six and a-half year sentence. The violence was triggered by the offender’s perception that the complainant had been engaging in sex with the people downstairs where they lived. The violence included pushing her backwards onto the bed, punching her in the head, berating her and poking her in the shoulder with a pair of scissors. The violence was relentless and constant. A second count (assault occasioning bodily harm) involved the offender punching the complainant in the face without warning, resulting in her being taken to hospital by ambulance. Significant features were the sheer volume and frequency of the assaults, the controlling and denigrating behaviour of the offender, the fact that he derived pleasure from the attack and the long-lasting impact on the victim. The total sentence reflected the overall criminality on both counts, with the head sentence being within the range of what the applicant had contended at sentencing. That is sufficient to demonstrate that GBI does not result in a conclusion that the sentence here was manifestly excessive.
Galleghan involved prolonged torture resulting in a sentence of eight years with an SVO declaration. The offending involved repeated assaults to the complainant’s head, dragging her across the floor, kicking her, applying pressure to the point of loss of consciousness, and threats to kill her. However, it also involved chasing a person who tried to intervene and threatening to kill him. Further, one aspect of the torture involved a murderous plan to tie the complainant up in a shipping container and leave her there until she died. He put that plan into action but it failed because the police were able to open the shipping container without his assistance. None of that suggests that ought compel the conclusion that there has been error in this case.
“Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge.”
R
OAE [2025] QCA 129
(1979) 144 CLR 513
The application for leave to appeal against sentence was refused; the sentence was not disturbed.
The applicant then grabbed an electric cord and whipped the complainant on her body countless times. The pain was excruciating. She sustained numerous bruises, welts, and cuts across her body, including her back and her bottom. Although she could not recall the exact number of times he whipped her, she believed it was over fifty times.
While she was on the ground, the applicant stomped on her head and punched her with his fists. She suffered a bloodied nose and bruising to her eyes. The left side of her face was completely swollen and bruised.
The applicant also grabbed a dog leash, which had a silver shackle attached to the end, and whipped her on her body. The shackle connected with her bare skin each time, while she was on the ground cowering down, covering the back of her head with her hands. He then placed the leash around the front of her neck and pulled backwards, strangling her. She felt pressure on the front of her neck and had difficulty breathing. She thought she was about to die, but he quickly released the leash, and she got up and ran to the toilet at the front of the house and locked herself in.
The applicant pursued her and punched through the door causing a hole in the door, and to break off the hinges. He tried to pull her through the hole, but the hole was too small, so he struck her in the face repeatedly with the broken door and cornered her against the wall. He then managed to drag her out of the toilet and into the laundry area, where he struck her with the dog leash. While in the laundry, he picked up a tub, which contained a mixture of bleach and water they used to clean the toilet, and poured it over her body, which spilled into her eyes. The liquid made her skin itch and sting.
He wrapped the leash around her hands and dragged her along the floor of the unit to the front door, dragging her outside, onto the timber decking. This frightened the complainant, as she had no clue where he intended to take her. He eventually released her and walked down the street, while she ran back inside and grabbed her phone. She fled to her neighbour's house and hid in her kitchen and called the police. At this stage, she still only wore a top and was bare from the waist down.
A short time later, the police arrived. The complainant was extremely distressed and fearful and had blood oozing out of her nose and mouth. She had welts and whip marks across her body and was in extreme pain. The ambulance was called, and she was transported to the Gympie Hospital.
The complainant was found to have a series of injuries including bruising to the right eye, swelling to various parts of her body, multiple marks on her back, bruising around her body and a left wrist fracture. Her wrist was put in a plaster cast but she was otherwise expected to make a full recovery without medical intervention. She had a raspy voice from being strangled by the dog leash and subsequently lost her voice. Further medication was given for that.
Her Honour then referred to the victim impact statement from the complainant:
In the end, reference to Ellis, GBI and Galleghan does no more than demonstrate the vice in attacking a sentence on the ground of manifest excess, by reference to comparable cases. The fact that a sentence imposed is different from other sentences, and even markedly different, does not establish that it is manifestly excessive.
The applicant relies on the two features which were said to be absent in other cases, namely the applicant’s mental health condition and the expressed views of the complainant.
Neither are sufficient to establish success. The learned sentencing judge took into account that the psychologist’s report suggested a causative link between the applicant’s complex PTSD and the offending. It was, on any view, indirect. What the psychologist said was that the unfortunate events in the applicant’s life lead to the PTSD, and one maladaptive way in which the applicant attempted to cope with the PTSD was by drug use. It was the drug use or, more properly, the applicant’s drug induced state on the night of the offences, that was the direct causative link.
However that may be, the fact is, it was taken into account by the learned sentencing judge when reaching a head sentence on count 1.
The complainant’s expressed views were to the effect that she would like to see the applicant have an opportunity to engage in rehabilitation rather than be incarcerated. Benevolent as those sentiments may be, it would be wrong to allow them to interfere with the imposition of a sentence that was otherwise just in all the circumstances. The learned sentencing judge took into account the complainant’s views, but proceeded on the basis that they could not displace an otherwise proper sentence.
The contention that these two factors, in combination, warranted further recognition by setting an earlier release or eligibility date should be put to one side. The applicant’s criminal history weighed against him, as did his defiance of a temporary protection order. Further, count 1 involved the admitted intention on the applicant’s part to inflict severe pain and suffering by way of unprovoked, protracted violence in a cruel, callous and brutal way. As the learned sentencing judge said, it was a savage beating involving weapons, in some cases used so forcefully that they broke.
The psychologist’s report also dealt with the risks posed by the applicant. The risk to himself and others was assessed as increased and it was noted that his risk profile can change within a very short period of time, depending on circumstances. His risks were predominantly associated with his substance use and maladaptive coping skills in the face of stressors. Ceasing drug use would reduce that risk whilst using illicit drugs dramatically increased the risk.
The final submission made was that insufficient weight was given to the complainant’s views. As this court has repeatedly said in respect of an appeal against sentence based on manifest excess, a submission to the effect that insufficient weight was given to a particular factor is not a proper ground of appeal. In Gronow v Gronow5 Aickin J said: