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[2025] QCA 173
respondent. The application for leave to appeal sentence was refused. A warrant was ordered to issue and lie in the Registry for 24 hours to allow the applicant to first surrender himself into custody.
Oates received concurrent prison sentences for two offences involving a four-year-old child, with two months to be served before the balance was suspended for six months. He sought leave to appeal, arguing that the sentencing judge overlooked delay, should have found exceptional circumstances, and imposed excessive sentences. The Court of Appeal rejected each argument. It considered the delay in the context of the pre-recorded evidence and trial history, found that the offending remained serious despite its short duration and lack of physical touching, and concluded that the sentence did not meet the high threshold for appellate intervention described in Hili. Leave was refused.
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2,120 words · generated 07/10/2026
Kerry David Oates applied for leave to appeal the sentence imposed in the District Court at Brisbane on 5 June 2025. He had pleaded guilty to two counts of indecent treatment of a child under 16, under 12. The offences occurred on 27 November 2022 and involved one complainant, a girl aged four years and seven months. Oates was 40 at the time and 42 at sentence ([1], [4]).
1 cited instrument linked from this judgment.
The conduct took place in a hallway at the home of the complainant’s mother, who was a friend of Oates. After consuming a few drinks, Oates pulled down his pants and exposed part of his penis to the child. He asked to see her “bum”, and she raised her dress to the top of her underwear. Her mother entered the hallway and saw Oates pulling up his pants while the child held her dress above her underwear. The child then told her mother what had happened, and the mother got Oates to leave ([6]–[8]).
The complainant’s mother reported the matter to police that day. Oates denied the offending in a police interview in January 2023 ([9]). The indictment was presented in March 2024. The complainant’s evidence was pre-recorded in July 2024, and during cross-examination it was put to her that the offending had not occurred ([10]–[11]). A trial listed for November 2024 was not reached and was re-listed for June 2025. Oates indicated guilty pleas only weeks before the re-listed trial ([12]–[13]).
The District Court imposed concurrent terms of six months’ imprisonment on each count. The terms were suspended after Oates served two months, for an operational period of six months ([1]). On 16 September 2025, the Court of Appeal refused leave to appeal. It also ordered a warrant to issue and lie in the Registry for 24 hours to allow Oates first to surrender into custody ([35]).
The application advanced three proposed grounds: that the sentencing judge failed to consider delay, that the judge wrongly concluded there were no exceptional circumstances under s 9(4) of the Penalties and Sentences Act 1992 (Qld), and that the sentences were manifestly excessive ([3]). The Court of Appeal rejected all three.
On delay, Oates argued that the period of approximately two and a half years between offending and sentence had affected his liberty, caused uncertainty and harmed his mental health. He also relied on his compliance with bail and absence of further offending as evidence of rehabilitation and low risk ([19]). The Court examined the sentencing remarks and the procedural chronology rather than treating the elapsed period in isolation. It noted that the complainant’s evidence had been pre-recorded, that the defence had put a complete denial to her, that there had been two trial listings, and that pleas were entered only shortly before the later listed trial ([21]).
The Court concluded that the delay could not be described as significant in those circumstances. It also upheld the finding that there was no evidence of rehabilitation. The pleas came late, after the complainant had been challenged on the basis that the offending did not occur. The change to the Crown’s statement of facts before the pleas was not significant. No explanation for the offending or evidence of professional assistance to address it had been placed before the sentencing court ([22]–[23]). The Court treated the absence of further offending as insufficient, on the evidence before it, to displace those considerations.
On exceptional circumstances, the Court accepted that there was no precise formula. The question required assessment of the particular circumstances ([24]). It recognised that the conduct was brief and did not involve physical touching. But the child was very young, the offending occurred in her own home, and the conduct involved both exposing himself and asking her to expose herself ([26]). The late pleas, earlier denial, and absence of evidence of insight or genuine remorse also weighed against the claimed exceptional circumstances ([27]). The Court acknowledged that imprisonment would have serious effects on Oates, his family, his business, and the business’s employees, but held that the sentencing judge had correctly assessed the case as not exceptional ([28]).
Finally, the Court rejected the manifest-excessiveness ground. It relied on the test stated at [29], citing Hili v The Queen (2010) 242 CLR 520. A sentence being different, even markedly different, from comparable decisions is not by itself enough. The applicant had to establish a difference indicating misapplication of principle, or a sentence that was plainly unreasonable or unjust. Given the conclusion on exceptional circumstances, the seriousness of the conduct, the absence of evidence of insight or genuine remorse, and the sentence’s consistency with comparable authority, the Court found no basis to interfere ([30]–[33]).
The judgment does not present itself as changing the law. Its treatment of s 9(4) is an application of the statutory requirement described by the sentencing judge and the Court of Appeal: actual imprisonment was required unless the circumstances were exceptional ([17]–[18], [28], [32]). The Court expressly observed that there is no precise formulation for exceptional circumstances. The assessment is particular to the circumstances of the case ([24]).
The decision is also not a comprehensive statement of how delay must be treated in every sentencing exercise. Its conclusion is case-specific. The Court examined the period of delay alongside the procedural events, including the pre-recording, trial listings, defence denial, and timing of the pleas. It found that, on this chronology, the period was not significant ([21]). It also assessed the claimed relevance of bail compliance and lack of further offending alongside the lack of other evidence of rehabilitation ([19], [22]).
The judgment’s express reference to appellate intervention in comparison cases is attributed to Hili. Paragraph 29 says that a difference from comparable decisions must be sufficient to warrant a conclusion of misapplication of principle, or a finding that the sentence was plainly unreasonable or unjust. The judgment applies that test to the sentences before it; it does not set out a broader survey of comparable cases or reproduce Hili’s reasoning in detail ([29]–[33]).
Accordingly, the “before and after” account supported by this source is limited. Before the decision, the relevant statutory setting and the Hili formulation were identified. In this decision, the Court applied them to the particular chronology, conduct, and sentencing outcome. The judgment does not establish a new statutory test or state that a particular period of delay, type of conduct, or personal hardship will always produce a particular result.
At [21], the Court says that a two-and-a-half-year period “cannot be said to be significant” when considered against the case’s history. In plain English, the Court did not count elapsed time alone. It considered what happened during the case, including the pre-recorded evidence, the trial listings, and the timing of the guilty pleas. The passage explains the Court’s rejection of the delay ground in this matter.
At [22], the Court says there was “no evidence of rehabilitation”. It refers to the late pleas, the earlier denial, the limited change to the agreed facts, the absence of an explanation, and the lack of evidence that Oates had sought professional help. In plain English, the Court considered that simply having no further offending while on bail did not establish rehabilitation on the material before it.
At [26], the Court accepts that the offending was short and involved no physical touching, but says it was serious because of the child’s age, the location in her home, and the nature of the requests and exposure. In plain English, the Court did not assess seriousness by duration or physical contact alone. It considered the whole setting and the complainant’s vulnerability.
At [29], the Court states that a sentence being different, or even markedly different, from comparable decisions is not enough by itself. The difference must point to a misapplication of principle, or the sentence must be plainly unreasonable or unjust. This is the judgment’s express appellate standard for the manifest-excessiveness ground, with Hili cited in the footnote.
At [32]–[33], the Court concludes that the sentences were within a sound exercise of sentencing discretion and were neither plainly unreasonable nor unjust. In plain English, the Court did not find a basis to grant leave on the sentence itself after rejecting the exceptional-circumstances argument.
The decision is most directly relevant to sentence applications involving the statutory exceptional-circumstances question under s 9(4) of the Penalties and Sentences Act 1992 (Qld), and a claim that a sentence requiring actual custody is excessive. Its reasoning concerns the particular combination of two offences against a very young child, no physical touching, conduct in the child’s home, late guilty pleas following a denial, and no evidence of insight or rehabilitation ([25]–[28]).
It is also relevant to arguments that delay should have affected sentence where the case history includes trial preparation and listings, a pre-recorded complainant, and pleas entered shortly before trial. The case does not say that delay is never relevant. It shows that the Court assessed significance in context, and rejected the argument on the record before it ([19]–[23]).
The judgment may be relevant where an applicant relies on absence of reoffending while on bail as evidence of rehabilitation. Here, the Court considered that point but also emphasised the lack of evidence of professional assistance, an explanation for the offending, or insight and genuine remorse ([19], [22]–[23]). The result should not be treated as a finding that such evidence is always required or that bail compliance can never matter; the judgment does not state either proposition.
The manifest-excessiveness discussion may also be relevant to sentence comparisons. The Court’s stated test requires more than showing that a sentence differs from other decisions. The difference must indicate a misapplication of principle or make the sentence plainly unreasonable or unjust ([29]). The judgment does not identify or analyse individual comparable cases in the supplied text, so it offers no detailed comparison between particular sentences.
The supplied judgment contains no discussion of later decisions applying, following, distinguishing, or criticising R v Oates. It was delivered on 16 September 2025, and the source provided for this analysis does not include subsequent case history. It is therefore not possible, on this record, to say how later courts have treated it.
The precedent relationship expressly identified in the judgment is with Hili v The Queen (2010) 242 CLR 520. Boddice JA cites Hili at [29] for the test that a difference from comparable sentences must warrant a conclusion of misapplication of principle, or that the sentence was plainly unreasonable or unjust. The Court applies that formulation to the third proposed ground ([29]–[33]).
Doyle JA and Crowley J agreed with Boddice JA’s reasons and orders ([36]–[37]). Those concurrences confirm that the Court’s disposition was unanimous. They do not add separate reasoning or refer to further authorities in the supplied text.
Any account of later treatment would require sources beyond this judgment. In their absence, the grounded conclusion is limited: this Court applied Hili and refused leave on the three proposed grounds. No subsequent treatment can be inferred from the judgment itself.
The judgment does not provide a precise definition of “exceptional circumstances”. It says there is no precise formulation and that the particular circumstances must be considered ([24]). It therefore leaves open how other combinations of offence seriousness, personal hardship, rehabilitation evidence, plea timing, and other circumstances may be assessed under s 9(4).
The decision also does not establish a general threshold for when delay becomes significant. It concludes that the particular two-and-a-half-year period was not significant in light of the procedural history ([21]). It does not explain how a different chronology, a delay attributable to another cause, or a different impact on an offender might be assessed.
The Court found no evidence of rehabilitation on the material in this case, but does not specify what evidence would be sufficient in another case. It refers to the absence of professional assistance, an explanation for the offending, and insight or genuine remorse ([22]–[23], [27]). It would therefore be unsafe to convert those observations into a universal checklist or mandatory evidentiary rule.
Finally, while the Court says the sentences were consistent with comparable authority ([31]), the supplied judgment does not name or discuss those comparable decisions. It does not show the range of sentences considered, or explain in detail how each comparison bore on the result. Those matters cannot be reconstructed from this text alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
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 Oates [2025] QCA 173
PARTIES: R / v / OATES, Kerry David / (applicant)
FILE NO/S: CA No 131 of 2025 / DC No 600 of 2024
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Brisbane – Date of Sentence: 5 June 2025 (Cash KC DCJ)
DELIVERED ON: 16 September 2025
DELIVERED AT: Brisbane
HEARING DATE: 10 September 2025
JUDGES: Boddice and Doyle JJA and Crowley J
ORDERS: 1. The application for leave to appeal sentence is refused.2. A warrant issue, such warrant to lie in the Registry for 24 hours to allow the applicant to first surrender himself into custody.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of indecent treatment of a child under 16, under 12 – where the applicant was sentenced to imprisonment for 6 months on each count, suspended after serving a period of 2 months’ imprisonment, for an operational period of 6 months – where the terms of imprisonment were ordered to be served concurrently – whether the sentencing judge failed to take into account a relevant consideration, namely delay, as a factor in the sentencing exercise – whether the sentencing judge erred in finding that the circumstances did not amount to exceptional circumstances within the meaning of s 9(4) of the Penalties and Sentences Act 1992 (Qld) – whether the sentences imposed were manifestly excessive / Penalties and Sentences Act 1992 (Qld), s 9(4) / Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied
COUNSEL: M J Hynes for the applicant / S J Muir for the respondent
SOLICITORS: Sibley Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent
BODDICE JA: On 5 June 2025, the applicant pleaded guilty to two counts of indecent treatment of a child under 16, under 12. It was ordered that he be imprisoned for 6 months on each count, suspended after serving a period of 2 months’ imprisonment, for an operational period of 6 months. The terms of imprisonment were ordered to be served concurrently.
The applicant seeks leave to appeal his sentences.
Should leave be granted, the applicant relies on three grounds. First, that the sentencing judge failed to take into account a relevant consideration, namely delay, as a factor in the sentencing exercise. Second, that the sentencing judge erred in finding that the circumstances did not amount to exceptional circumstances within the meaning of s 9(4) of the Penalties and Sentences Act 1992 (Qld). Third, that the sentences were manifestly excessive.
Offences
The offences were committed on 27 November 2022, against the one female complainant aged 4 years’ 7 months. The applicant was aged 40 years. He was aged 42 years at the date of sentence.
The applicant had no prior history for similar conduct, or for any offences involving children. He did, however, have a criminal history. It comprised largely public nuisance and property offences, most of which were very dated. His most recent conviction was for a public nuisance offence committed in December 2014.
The complainant was the daughter of a friend of the applicant. The offences were committed in a hallway at the friend’s house. The applicant had attended during the afternoon and consumed a few drinks.
The applicant pulled his pants down, exposing a part of his penis to the complainant (count 1). The applicant asked to see the complainant’s “bum”. She lifted her dress to the top of her underwear (count 2). At that point, the complainant’s mother walked into the hallway. She observed the applicant pulling up his pants and the complainant standing in front of him, holding her dress up above her underwear. The mother told the complainant to pull her dress down and took her into the kitchen.
In the kitchen, the complainant disclosed to her mother that the applicant had showed her his “wee wee area” and asked to see her “bum”. The complainant’s mother made up a story to get the applicant out of the house.
A complaint was made to police later that same day. On 10 January 2023, the applicant participated in a formal interview with police. He denied the offending during that interview.
Procedural history
The indictment was presented on 18 March 2024.
The complainant’s evidence was pre-recorded on 19 July 2024. During cross-examination, it was put to the complainant that the offending did not occur at all.
A trial of the proceeding was listed for November 2024, but not reached. The trial was re-listed for June 2025.
The applicant’s pleas of guilty were indicated just weeks before the listed commencement date for trial.
Sentence hearing
Sentencing remarks
The sentencing judge recorded that the applicant had entered pleas of guilty in circumstances where he initially denied the offending, had given instructions which were put to the child complainant in cross-examination denying that the offending occurred and after the indictment had been listed for trial on two separate occasions. Whilst the pleas of guilty had been entered in circumstances where the Crown had agreed to amend the statement of facts to delete an allegation that the complainant had also pulled down her underwear, the sentencing judge observed that that change was not of great significance. Accordingly, the pleas of guilty were not early, nor were they especially indicative of cooperation or remorse.
The sentencing judge also observed that the applicant’s criminal history was dated and largely concerned with nuisance-type offences. Further, the applicant had a stable relationship, children and his own business. That business employed several staff and imprisonment was likely to adversely affect that business, leading to its collapse and the loss of employment for the staff, as well as financial hardship for the applicant’s family. The applicant also had health problems which were likely to make time in jail more onerous.
The sentencing judge recorded that notwithstanding those factors, the statute required that a sentence of actual imprisonment be imposed unless the circumstances of the case were exceptional. In considering that question, factors in the applicant’s favour were the pleas of guilty, although of less value than in the case of an early plea, the fact that the offending was less serious than many examples of that kind of offending which come before the court, the likely negative impact of incarceration upon his business and family and the consequences of incarceration to the applicant, having regard to his medical conditions. As against that, the offending involved two different offences against a very young girl, with no real explanation for the conduct, no indication of rehabilitation and no genuine indication of insight or remorse.
The sentencing judge found that weighing those matters, the case was not exceptional, looking at the conduct in comparison to comparable authorities, the sentencing judge imposed concurrent sentences of imprisonment for 6 months, to be suspended after serving 2 months for an operational period of 6 months.
Consideration
Ground 1
The applicant submitted that the sentencing judge failed to take into account the delay of approximately two and a-half years between the commission of the offences and sentence. It was submitted that that delay was relevant as the applicant’s liberty had been curtailed for a long time, leading to uncertainty about his future, there had been an absence of any re-offending demonstrating a low risk of re-offending and good prospects of rehabilitation, there had been bail compliance consistent with a conclusion that personal deterrence did not feature, and there had been a negative impact on the applicant’s mental health. It was submitted that the sentencing judge’s finding that there was “no indication of rehabilitation” failed to appreciate that the significant period of no offending whilst on bail showed rehabilitative promise and that the applicant was a low risk of further offence.
A consideration of the sentencing remarks supports a conclusion that there was no such failure. Further, there was no error in the sentencing judge’s observation that there was no indication of rehabilitation.
Any delay in sentencing occurred in circumstances where the applicant had not merely had a prior trial listing that had not been reached. There had been a pre-recording of the complainant’s evidence, during which it was put to the complainant that the offences did not take place, there had also been a further trial listing, with pleas only entered close to that listed hearing. In those circumstances, a delay of two and a-half years cannot be said to be significant.
Further, there was no evidence of rehabilitation. The applicant only entered pleas of guilty shortly prior to trial and had previously put to the complainant a complete denial of the offending. The change in factual circumstances agreed by the prosecution prior to the pleas being entered were not significant. There was no explanation offered for the offending and no indication that the applicant had sought any professional assistance to address the circumstances of the offending.
The sentencing judge’s conclusion that the pleas of guilty were not indicative of insight or genuine remorse was also apposite. Having regard to the previous positive assertion to the complainant, in evidence, that the offences did not occur, the pleas were not indicative of insight or genuine remorse. They were consistent with an acceptance that the case was a strong case. Not only was there a prompt complaint, there was a consistency between the preliminary complaint evidence and the account given by the complainant to police. There was also an eyewitness account, from the complainant’s mother, of witnessing the applicant pulling up his pants, whilst her daughter had her dress raised above her underwear.
Ground 2
The sentencing judge correctly observed that there was no precise formulation for what amounts to exceptional circumstances and that it required a consideration of the particular circumstances to determine whether they constituted an exceptional case.
The applicant submits that the low level offending was a factor in itself, which may have led to a finding of exceptional circumstances, and when combined with the pleas of guilty, rehabilitative prospects and low risk of re-offending, the sentencing judge erred in finding that there was not exceptional circumstances.
Whilst it is correct that the applicant’s offending was of short duration and did not involve any physical touching of the child, the applicant’s offending conduct was serious. The child was very young. The offending occurred in her own home. It involved not only the applicant exposing himself to the child, but also asking the child to expose herself to him. Those circumstances could not be said to be so low level as to warrant a finding of exceptional circumstances in themselves.
Further, the applicant’s pleas of guilty were late, occurred after there had been a positive denial of the offending conduct put to the child and where there was no evidence placed before the court of any steps taken by the applicant to seek to address the circumstances which led to such disturbing behaviour. There was also no evidence supportive of insight and genuine remorse.
Against that background, notwithstanding the significant consequences of actual imprisonment to the applicant, his family, his business and the employees of that business, the finding that there were not exceptional circumstances was correct.
Ground 3
To succeed on this ground, it is not sufficient for the applicant to establish that the sentence was different or even markedly different from comparable decisions. The applicant must establish that the sentence imposed was so different as to warrant a conclusion that there must have been a misapplication of principle, or a finding that the sentence imposed was plainly unreasonable or unjust.1
Once it is accepted that there was no error in the conclusion that exceptional circumstances were not established, there is no basis upon which to conclude that concurrent sentences of 6 months’ imprisonment for each count, suspended after serving 2 months for an operational period of 6 months, were manifestly excessive.
The applicant’s offending was serious. The child was extremely young. There was no evidence of insight or genuine remorse. Further, the sentences imposed were consistent with comparable authority.
Against that background and having regard to a requirement that the applicant serve actual time in custody, absent a finding of exceptional circumstances, the sentences fell within a sound exercise of the sentencing discretion.
Such sentences do not evidence any misapplication of principle. They are neither plainly unreasonable, nor unjust.
Conclusions
Orders
The application for leave to appeal sentence be refused.
A warrant issue, such warrant to lie in the Registry for 24 hours to allow the applicant to first surrender himself into custody.
DOYLE JA: I have read and agree with the reasons for judgment of Boddice JA and with the orders proposed by his Honour.
CROWLEY J: I agree with Boddice JA.
Hili v The Queen (2010) 242 CLR 520. ↩
R
Oates [2025] QCA 173
(2010) 242 CLR 520
The application for leave to appeal sentence was refused. A warrant was ordered to issue and lie in the Registry for 24 hours to allow the applicant to first surrender himself into custody.