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[2025] QCA 209
respondent. Application for leave to appeal against sentence refused (the application was dismissed).
Tan appealed the sentences imposed for manslaughter and helping conceal a murder. He argued that the sentencing judge should have given greater effect to his guilty pleas when deciding how long he had to serve before becoming eligible for parole, and that the overall sentence was excessive. The Court of Appeal said the pleas were considered, but were late, and that sentencing is an overall judgement rather than a precise mathematical calculation based on provisional percentages. The judge had considered the combined sentence and parole period. The Court found no demonstrated error or manifest excess and refused leave to appeal.
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2,194 words · generated 07/10/2026
The Queensland Court of Appeal considered David Lee Tan’s application for leave to appeal against sentences imposed for manslaughter and being an accessory after the fact to murder. The judgment is by Doyle JA, with additional reasons from Bond JA and agreement from Brown JA. The application was refused.
1 cited instrument linked from this judgment.
The offences concerned two deaths. On or about 8 November 2021, Andrew Walsh was murdered at Tan’s business premises by Joshua Searston and Dewald de Klerk. Tan was present and later helped conceal the crime. The judgment records that he deactivated CCTV before the attack began, although it does not say that he participated in the killing itself ([10]–[19]). After Walsh’s death, Tan cleaned the scene, helped conceal Walsh’s remains in an oil pit, assisted with pouring concrete over the body, destroyed evidence and made false statements to police. While in custody, he also attempted to solicit false alibis ([20]–[22]).
The manslaughter count arose from the death of Lachlan Griffiths in January 2022. The principal offender was identified as G, and Griffiths’ remains were not located ([23]). Tan facilitated aspects of the plan by allowing his premises to be used and helping with transport arrangements. The judge found that he foresaw an interrogation involving violence short of an intention to cause grievous bodily harm or death. Tan was present near the shed during relevant events, but the Crown could not prove he was in the room when G killed Griffiths or that he directly participated in the violence ([26]–[30]). Evidence also showed Tan later helped clean the scene and gave police false accounts ([34]–[38]).
Tan pleaded guilty to both counts on 23 October 2024, shortly before the manslaughter trial was due to commence on 28 October. The sentencing judge regarded the pleas as late ([48]–[50]). The sentence was six years’ imprisonment for being an accessory after the fact to murder and nine and a half years for manslaughter, to be served cumulatively. The judge declared 973 days of pre-sentence custody as time served and fixed parole eligibility for 14 September 2031. The effective head sentence was 15.5 years, with eligibility after 9.5 years ([7], [57]).
Tan proposed two grounds of appeal: that the parole period did not adequately reflect the guilty plea or totality, and that the sentence was manifestly excessive ([58]). The arguments focused on the period before parole eligibility, not on the aggregate head sentence itself ([73]).
The Court’s central reason was that Tan’s proposed calculation treated provisional comments in the sentencing remarks as if they were precise and final figures. The sentencing judge had discussed an appropriate sentence for each offence before considering the totality of the cumulative sentences. For manslaughter, she referred to parole eligibility at “approximately 66 per cent” of the sentence; for the accessory offence, she referred to “approximately 50 per cent”. She then moderated the sentence for totality and set a single parole date ([57], [67]).
Tan argued that applying those percentages after a different adjustment to the head sentences would produce an earlier parole date. Doyle JA rejected that approach. The remarks about individual sentences were steps in the judge’s reasoning, not binding inputs to a later arithmetic formula. They were expressly approximate, and the final task was to assess the appropriate overall sentence ([65]–[71]). The Court therefore did not accept that a comparison of alternative percentage calculations demonstrated error.
The judgment also stresses that sentencing is not a mathematical exercise. Doyle JA cited R v Dwyer and Wong v The Queen for that proposition ([68]). This did not mean that the parole period could be ignored. Bond JA explained that the sentencing judge’s duty applies both to the head sentence and to the minimum time the offender must serve before parole eligibility. He described those as the “top” and “bottom” of the sentence, drawing on R v Smith ([3]–[4]). On the Court’s reading, the sentencing judge had considered both.
The guilty-plea argument also failed. The sentencing judge expressly treated the pleas as mitigating because they avoided two lengthy trials and spared the families the burden of trial, but also said their late timing meant they reflected little beyond saving trial time and expense ([53]). The Court found the judge had considered the pleas repeatedly and that her assessment was open on the circumstances ([60]–[64]).
Doyle JA noted that Queensland appellate authority had described one-third of a sentence as a general-practice starting point for recognising a guilty plea. But he cautioned that this must not be elevated into a statutory rule. The degree of allowance depends on the circumstances, including timing and the other relevant sentencing factors ([64]). Here the pleas came after significant trial preparation and shortly before the scheduled trial. The judge also considered the seriousness of the offences and Tan’s efforts to conceal his involvement and mislead investigators ([48], [63]–[64]).
Finally, the Court rejected manifest excess. The applicant’s argument depended on establishing error in the non-parole period, and the Court had found no such error. Doyle JA also considered the nature and duration of the offending, concealment over an extended period, lies, the attempted alibi and the late pleas ([73]–[76]). The Court did not identify a separate basis for finding the sentence excessive.
The judgment does not purport to announce a new sentencing formula. It applies and explains principles drawn from the authorities it cites. The starting point is the flexibility of the sentencing task: as quoted by Bond JA from R v Smith and Markarian v The Queen, there is no single path a sentencing judge must take to reach a just result, subject to the governing legislation ([3]). Markarian is invoked for the proposition that there is no single correct sentence and that sentencing judges need flexibility within the statutory regime.
For parole eligibility, Bond JA’s discussion of Smith states that fixing a date determines the minimum time the offender must serve without the opportunity for parole ([3]). His point is that a sentencing court must consider this feature as part of the overall sentence, not merely set the head sentence and treat parole eligibility as an automatic consequence ([3]–[4]). In this case, Doyle JA concluded that the sentencing judge’s reasons showed consideration of both components.
On guilty pleas, the judgment confirms the role of mitigation while rejecting a rigid percentage rule. R v Ungvari and R v DAC are cited for the general-practice starting point of one-third. R v CCR is cited for the proposition that the actual level of discount depends on a range of factors ([64]). The judgment’s practical clarification is that the starting point is not statutory and does not displace the individual assessment of the plea’s timing and circumstances.
The judgment also applies the established distinction between reasoning steps and the final sentencing synthesis. The sentencing judge’s provisional figures did not become mandatory mathematical parameters simply because they appeared in the reasons. Doyle JA referred to Markarian in explaining that the judge was exposing the reasoning process, rather than defining a calculation ([71]).
The supplied judgment does not set out the law before and after this decision in a comprehensive historical sense. It does not state that any earlier rule was overruled or changed. Its contribution, on the text available, is an application and clarification of existing sentencing principles in the context of cumulative sentences and a single parole eligibility date.
At [64], Doyle JA says the one-third starting point for a guilty plea “should not… be elevated to be the equivalent of a statutory rule”. In plain English, a judge may use that figure as a general guide, but it does not operate as a mandatory discount. The circumstances of the plea and the offence remain relevant.
At [68], Doyle JA says sentencing is not a process capable of “calculation with mathematical precision”. This responds directly to Tan’s attempt to derive an earlier parole date by applying approximate percentages to alternative head sentences. The Court’s point is not that arithmetic is irrelevant, but that the sentencing discretion cannot be reduced to a formula that overrides the judge’s overall assessment.
At [70]–[71], Doyle JA says it is unfair to treat the individual sentences and provisional percentages as the judge’s settled final position. The judge was explaining the path of reasoning, and the ultimate task was to decide on the appropriate overall sentence. This passage is important when reading sentencing remarks that state provisional views before addressing totality.
At [3], Bond JA states that the sentencing duty applies to all aspects of sentence formulation, “not just” the head sentence. In plain English, the minimum period before parole eligibility also requires consideration of relevant sentencing factors. Bond JA’s reference to the “top” and “bottom” of the sentence conveys the distinction between the total term and the time to be served before parole can be considered.
At [74], Doyle JA identifies the features supporting the result: two serious offences, extended concealment, lies, an attempted alibi, no evident remorse and late pleas. This is the Court’s assessment of why the asserted excess was not made out in the circumstances of this case, rather than a general rule that any one feature dictates a particular sentence.
The decision is most directly relevant where a sentencing judge imposes cumulative custodial sentences, moderates for totality and sets a single parole eligibility date. It addresses an argument that a parole period is wrong because percentages mentioned while considering individual sentences would produce a different result if applied mechanically to adjusted head sentences ([56]–[57], [62]–[71]).
It is also relevant where an offender argues that a guilty plea should have led to a greater reduction in the parole period. The judgment indicates that the timing and practical effect of the plea matter. Here, the pleas were entered shortly before trial, after trial preparation, and were treated as saving trial time and expense, while the sentencing judge also considered their effect on the families ([48], [53], [63]–[64]). A different timing or different circumstances could require a different assessment; the judgment does not prescribe a fixed outcome for other cases.
The case may also be relevant to appellate arguments based on a reconstruction of sentencing reasons. It cautions against treating approximate provisional figures as settled conclusions where the sentencing judge subsequently undertakes an overall assessment ([67]–[71]). It does not prevent an appeal where a genuine error is demonstrated. Rather, it explains why the particular calculation advanced in this application did not establish one.
The decision’s relevance is narrower where the appeal challenges the head sentence independently, or identifies a specific legal error unrelated to the sentencing judge’s use of provisional percentages. The judgment records that Tan did not take issue with the 15.5-year aggregate head sentence and that his argument ultimately concerned the 9.5-year parole period ([73]). Its reasoning should therefore be read in light of the grounds actually advanced.
The supplied judgment was delivered on 31 October 2025 and contains no discussion of later decisions applying or distinguishing R v Tan. On the material provided, it is not possible to report how later courts have treated it.
The judgment itself identifies the authorities it applied or discussed. It draws on Markarian for flexibility in the sentencing task; R v Smith for the relevance of both the head sentence and parole eligibility; and Ungvari, DAC and CCR for guilty-plea mitigation ([3], [64]). It cites Dwyer and Wong in rejecting mathematical precision as a model of sentencing ([68]). It refers to Kentwell when explaining that the Court would not proceed to resentencing because the applicant had not established specific error ([73]). These are the relationships stated in this decision, not evidence of subsequent treatment of R v Tan.
The judgment does not specify what percentage or period before parole eligibility would have been appropriate if Tan’s pleas had been entered earlier. It states that the allowance depends on a range of factors, but does not provide a scale or formula for weighing each factor ([64]).
It also does not decide how a sentencing judge should express provisional calculations in reasons, beyond holding that the figures here were approximate and should be read in the context of the final overall assessment ([67]–[71]). Questions may arise in another case if a judge’s reasons do not make clear whether a stated figure is provisional or final, or if the final parole date appears inconsistent with the judge’s stated conclusions.
The judgment does not set out a comprehensive test for manifest excess, and it does not examine the full statutory framework for parole eligibility. Its discussion is directed to the grounds advanced and the sentencing reasons before it. Nor does it determine whether any alternative sentence would be appropriate in other factual settings. It concludes only that this applicant did not demonstrate specific error or manifest excess on the arguments made ([73]–[77]).
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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 Tan [2025] QCA 209
PARTIES: R / v / TAN, David Lee / (applicant)
FILE NO/S: CA No 257 of 2024 / SC No 125 of 2024 / SC No 923 of 2023
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Brisbane – Date of Sentence: 11 November 2024 (Williams J)
DELIVERED ON: 31 October 2025
DELIVERED AT: Brisbane
HEARING DATE: 19 August 2025
JUDGES: Bond and Brown and Doyle JJA
ORDER: 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 pleaded guilty to charges of being an accessory after the fact to murder and to manslaughter – where the applicant was sentenced to six years imprisonment on the count of accessory after the fact to murder and nine and a half years imprisonment on the count of manslaughter – where the sentence was structured cumulatively and a single parole eligibility date set – where the sentencing judge found that the applicant’s pleas of guilty were late pleas – where the sentencing judge had regard to those pleas as mitigating factors – where the applicant contends by his first ground of appeal, that a greater discount ought to have been allowed in determining the parole eligibility date on account of the guilty plea – where the applicant submits that there would have been an earlier parole eligibility date if the sentencing judge had reduced the aggregate head sentence but maintained the application of the percentages she had provisionally identified as appropriate to those sentences if imposed separately – where the applicant contends, by his second ground of appeal, that the sentence was manifestly excessive in all the circumstances, having regard to the assessment of the non-parole period – whether the parole eligibility date should have been advanced – whether the non-parole period rendered the sentence imposed manifestly excessive – whether leave to appeal against sentence should be granted / Penalties and Sentences Act 1992 (Qld), s 9(1) / Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, distinguished / Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited / R v CCR [2021] QCA 119, cited / R v DAC [2023] QCA 53, cited / R v Dwyer [2008] QCA 117, cited / R v Smith (2022) 10 QR 725; [2022] QCA 89, cited / R v Ungvari [2010] QCA 134, cited / Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited
COUNSEL: E D Boddice for the applicant / C M Cook for the respondent
SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent
BOND JA: I have had the advantage of reading in draft the reasons for judgment of Doyle JA. I wish only to add some brief additional remarks explaining why I agree with his Honour that each of the suggested grounds of appeal lacks merit, and the application for leave to appeal should fail.
In the present case, it was not contentious before the sentencing judge that the sentence should be structured by the imposition of cumulative sentences in respect of each of the two counts, with a moderation for totality and a single parole eligibility date being set.
As I remarked in R v Smith [2022] QCA 89 at [10] to [12]:
“The nature of the [sentencing] task means that – express legislative provisions apart – there is no particular path that a sentencing judge must follow in order to arrive at the sentence which is just in all the circumstances: Markarian v The Queen (2005) 228 CLR 357 per Gleeson CJ, Gummow, Hayne and Callinan JJ at [27]. It follows that there is no single correct sentence and that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies: Markarian v The Queen (2005) 228 CLR 357 per Gleeson CJ, Gummow, Hayne And Callinan JJ at [27].
Where the sentence which is just in all the circumstances involves sentencing an offender to a term of imprisonment, the judge is often also called upon to fix the date on which the offender is eligible for parole: see s 160B(2), (4) or (7), s 160C(2), (3) or (5), and s 160D(2) or (3) of the Penalties and Sentences Act 1992 (Qld). By doing so, the judge is making a judicial determination that the circumstances of the offending require the offender to serve no less than the minimum term identified by the date so fixed, without opportunity for parole: Crump v New South Wales (2012) 247 CLR 1 at 16-17 [28] per French CJ and R v Watson [2021] QCA 225 at [22] per Kelly J (with whom McMurdo and Bond JJA agreed).
The duty of a sentencing judge to take account of all the relevant factors to arrive at a result which takes due account of them all applies to all aspects of the formulation of the sentence, not just to the formulation of the head sentence: R v Eveleigh [2003] 1 Qd R 398 at [111]. To adopt the language used by Applegarth J [in his reasons in R v Smith], it applies to the sentencing judge’s determination of both ‘the top’ and ‘the bottom’ of the sentence which is just in all the circumstances.”
It was apparent from the parts of her Honour’s sentencing remarks extracted by Doyle JA that, having had regard to all the appropriate relevant considerations, her Honour considered and adjusted both the top and the bottom of the sentence, because her Honour considered not merely the total sentence to be imposed but the minimum amount of time which the sentence would require the applicant to spend in actual custody.
It was conceded in oral argument before this Court that ground 2 could not succeed unless ground 1 succeeded. But, for the reasons expressed by Doyle JA in relation to ground 1, the criticisms of the approach taken by the sentencing judge paid insufficient regard to the degree of the flexibility allocated to the sentencing judge as explained in Smith. Ground 1 could not succeed and on the basis of the concession neither could ground 2. In any event, I add that I agree with Doyle JA’s assessment of the merits of ground 2.
BROWN JA: I agree that for the reasons of Justice Doyle and the additional reasons of Justice Bond. The applicant has failed to show error, either specific error or inferred error based on manifest excess, in relation to the sentence imposed. I agree that leave to appeal should be refused.
DOYLE JA: The applicant pleaded guilty to charges of being an accessory after the fact to murder and to manslaughter. The primary judge sentenced him as follows:On the count of manslaughter, to nine and a half years imprisonment;On the count of accessory after the fact to murder, to six years imprisonment;The sentences of imprisonment to be cumulative;Pre-sentence custody between 14 March 2022 and 10 November 2024 of 973 days was declared as time already served; andA parole eligibility date of 14 September 2031 was set.
This is an application for leave to appeal against the sentences imposed.
In my view the application should be refused.
Summary of the Facts: accessory after the fact to murder
On or about 8 November 2021, Joshua Searston and Dewald de Klerk murdered Mr Andrew Walsh (Mr Walsh) at the applicant’s business premises.
His murder was said to be in retaliation on the basis of a suspicion of Mr Walsh allegedly “franking” and raping of a female associate of another person.
The applicant and Jessica Anne Noy were present at the time of the murder and subsequently assisted in concealing the offence.
Mr de Klerk and the applicant were business partners. The applicant’s business premises included a warehouse shed which had a pit in the concrete floor ordinarily covered by removeable metal grates.
Before any attack on Mr Walsh commenced, the applicant went upstairs and remained there with Mr Walsh and Ms Noy. The applicant deactivated the CCTV cameras using his phone and told Mr Walsh to go downstairs. He refused.
Mr Searston then came and dragged Mr Walsh out of the upstairs bedroom and started violently assaulting him.
Mr Searston repeatedly struck Mr Walsh with his fists and with weapons. Mr Walsh did not fight back and begged Mr Searston to stop. Mr de Klerk joined in the attack a short time later.
The applicant and Ms Noy hid in the bedroom during this time. They later went downstairs.
The attack persisted. Mr Searston stabbed Mr Walsh numerous times in the chest and continued to punch Mr Walsh.
Mr Walsh sustained injuries causing his death.
To conceal the murder and to enable either or both Mr Searston and Mr de Klerk to evade punishment, the applicant, knowing that either or both of them murdered Mr Walsh:Cleaned the crime scene at his business premises with chemicals;Assisted in disposing of and concealing Mr Walsh’s remains in an oil pit at the scene, including by:attempting to submerge Mr Walsh’s remains in the oil pit using star-pickets and pallets;attempting to dissolve Mr Walsh’s remains using cleaning products and other chemicals; andassisting with pouring concrete on top of Mr Walsh’s body on 15 November 2021 and again on 12 February 2022;Assisted in the destruction of evidence, including burning concrete bags, Mr Searston and Mr de Klerk’s jumpers, other clothing and blood-stained towels and gloves in a fire pit; and Knowingly made false representations to police in interviews, including as to his whereabouts when Mr Walsh was murdered, his knowledge of Mr Walsh being buried at the shed and his involvement in the concrete pouring in November 2021.
On 14 February 2022, a crime scene warrant was executed at the applicant’s business premises in relation to a homicide investigation into Mr Griffiths discussed below, during which the pit was excavated, and Mr Walsh’s remains were located. Dental records confirmed his identity. The exact cause of death could not be determined.
Summary of the Facts: manslaughter
In the early hours of 17 January 2022, Lachlan James Griffiths (Mr Griffiths) was attacked at the applicant’s business premises sustaining injuries causing his death. The principal offender of his murder was G. Mr Griffiths’ remains were never located.
His death was in retaliation for a contention that Mr Griffiths had indecently dealt with [name removed] young daughter – a motive known to the applicant.
The applicant did not know Mr Griffiths until a few days prior to his disappearance.
On 16 and 17 January 2022, Billy Bornstein and G lured Mr Griffiths to the applicant’s business premises under the guise of a drug deal. The applicant was involved in facilitating this plan by allowing his van to be used and directing Mr Bornstein to where G was to be picked up from. The applicant was not present at the shed when the three men first arrived.
The applicant facilitated the interrogation, which he foresaw would involve violence falling short of intending grievous bodily harm or death, by allowing his business premises to be used for the attack.
In the early hours of 17 January 2022, the applicant attempted to assist Francesco Giorgi (known to him and who he knew G had recruited to assist him with the interrogation) to find his way to the applicant’s business premises. Mr Griffiths was alive when Mr Giorgi left some 47 minutes later.
From after 3.03 am on 17 January 2022, G and others interrogated Mr Griffiths and inflicted violence upon him. At one point during the interrogation, the applicant was present for an unknown period of time, though the Crown could not prove that he was in the room at the time G killed Mr Griffiths or that the applicant was directly involved in any of the violence.
However, evidence established that the applicant was in the vicinity of the shed at his business premises until approximately 4 pm on 17 January 2022. Mr Griffiths was dead before the applicant departed.
There were repeated communications between the applicant and G’s phone between midnight and 2 am. This included G asking the applicant “to collect his mate”. The applicant was depicted in CCTV footage driving around in his van at 2.25 am looking for Mr Giorgi whilst on his phone.
Hoa Chanh stayed at the shed overnight on 16 to 17 January 2022. He observed part of the attack on Mr Griffiths. Upon waking to the sound of loud banging, a scream and voices coming from downstairs, Mr Chanh walked downstairs into the large meeting room for approximately one minute and observed:G assaulting Mr Griffiths;Blood on Mr Griffiths’ face and on G’s hands and clothes; andThe applicant standing near Mr Griffiths while he was being attacked.
Mr Chanh further observed that the applicant “seemed angry”. The deceased was “still breathing” when Mr Chanh left the room.
Indictment 923 of 2023: accessory after the fact to murder conviction
On 12 September 2023, the Crown presented Indictment 923 of 2023. The trial was then listed for three weeks from 29 April 2024, but it did not proceed on that date.
On 6 March 2024, when arraigned on the indictment, the applicant pleaded not guilty to one count of accessory after the fact to murder.
On 9 April 2024, the applicant filed a Notice of Alibi, which was false.
Indictment 125 of 2024: the manslaughter conviction
On 22 February 2022, the Crown presented Indictment 125 of 2024 in the Supreme Court.
In April 2024, the trial in respect of Indictment 125 of 2024 was listed for three weeks before Williams J to commence on 28 October 2024.
On 19 June 2024, the Crown provided proposed admissions, which, in relation to the substantive admissions, the applicant rejected (the Court being advised as such on 25 September 2024).
Following negotiations with the Crown, Mr Bornstein and Mr Giorgi were convicted of offences on 24 July 2024.
On 23 September 2024, the Crown provided a final list of witnesses, an exhibit list as well as a trial plan.
On 4 October 2024, the applicant, through his solicitors, filed and served pre-trial applications to exclude evidence from the trial.
It was only on 22 October 2024 at 10.20 am that the applicant, through his Counsel, offered in writing to plead guilty to the counts on both indictments, which the Crown accepted and responded accordingly at 1.54 pm that day.
The Guilty Pleas
On 23 October 2024, the applicant pleaded guilty to one count of manslaughter on Indictment 125 of 2024 and one count of accessory after the fact to murder on Indictment 923 of 2023. The sentencing hearing was adjourned to 31 October 2024.
On 11 November 2024, the applicant was sentenced in respect of both convictions. The sentencing judge considered that his pleas of guilty constituted late pleas: Sentencing Transcript p 1-3 ll 47-48.
The Sentencing Remarks
Her Honour noted that at the time of the offending the applicant was a mature aged man, being 39 years old. The applicant’s criminal history and previous time spent in custody were also taken into account.
Her Honour recorded that the maximum sentences for both offences was life imprisonment.
Her Honour considered that his guilty pleas were mitigating factors to be taken into account, reflecting “a level of cooperation with the criminal justice system as it avoided the need for two lengthy trials” and spared the families of Mr Walsh and Mr Griffiths.1 Notwithstanding, the late timing of the pleas meant that they “had the practical effect of saving the time and expense of a trial but [did] not reflect much more than that”.2
Her Honour took into account the applicant’s lies to police.
Her Honour considered the victim impact statements which had been supplied observing that they demonstrated “the undeniable devastating impact” of the applicant’s offending on Mr Griffiths’ and Mr Walsh’s families.3
Her Honour identified the purposes for which she was to sentence the applicant pursuant to s 9(1) of the Penalties and Sentences Act 1992 (Qld) and noted that the sentence was to be structured cumulatively with a moderation for totality and a single parole eligibility date set.
In reaching the sentence to be imposed, dealing with each consideration in the single step sentencing process, her Honour determined:
“This is a serious example of the offence of manslaughter, as it involved a plan to inflict violence and use force as a means to an end, even though you were not the one to inflict it. The end was to obtain information about the alleged sexual assault of [name removed] young daughter…
…
Your actions in respect of covering up [Mr Walsh’s] senseless murder and entombing his body in concrete are also very serious.
…
In respect of manslaughter, I have formed a view as to the appropriate sentence by undertaking the required “instinctive synthesis”, including by:
taking into account all of the circumstances of the current offending, including your guilty plea, the mitigating features, and the basis of your criminal liability;
taking into account the matters pursuant to section 9 of the Penalties and Sentences Act; and
considering:
i.the total time you have already spent in custody and the time to be declared as time served under this sentence; and
ii.the impact of the parole eligibility date, any consequences of the statutory provisions in respect of a serious violent offence declaration in arriving at a just sentence and whether adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required.
Subject to considerations of totality to be considered further below, a sentence of nine and a-half years’ imprisonment with a parole eligibility date at approximately 66% of the sentence would be appropriate in respect of your conviction for manslaughter.
In respect of accessory after the fact to murder, I have formed a view as to the appropriate sentence by undertaking the required “instinctive synthesis”, including by:
taking into account all the circumstances of the current offending, including your guilty plea, the mitigating features, and the basis of your criminal liability;
taking into account the matters pursuant to section 9 of the Penalties and Sentences Act; and
considering:
i.the total time you have spent in custody and the time to be declared as time served under this sentence, and
ii.the impact of the parole eligibility date and a cumulative sentence, and whether adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required.
…
Subject to considerations of totality to be considered further below, a sentence of seven years’ imprisonment with a parole eligibility date at 50 per cent of the sentence would be appropriate in respect of your conviction for accessory after the fact to murder.
As part of the instinctive synthesis, I must consider the total time you will spend in custody and moderate the sentence to ensure that it is not crushing. In the circumstances, considerations of totality require a moderation of the sentence in respect of accessory after the fact to murder to six years and the overall parole eligibility date to approximately 60 per cent of the overall sentence.
The total effective sentence is 15 and a-half years, with parole eligibility date set after serving nine and a-half years. This overall sentence meets the requirements of the Penalties and Sentences Act and, in the current circumstances, punishment, deterrence, denunciation and community protection in particular.”
The Grounds of Proposed Appeal
Discussion
The Discount for Guilty Pleas
In particular her Honour had proper regard to the guilty pleas as a factor favouring a discount in the sentence (or more relevantly here, on the period to the parole eligibility date). The primary judge did so repeatedly in her sentencing remarks, and it is sufficient to mention only a few:In the early stage of her Honour’s sentencing remarks, she observed that “[y]our pleas of guilty to manslaughter and accessory after the fact to murder are mitigating factors to be taken into account”.4After discussion of the facts her Honour noted that the pleas “can only be considered as late pleas of guilty”;5 which her Honour said she then took into account.When discussing the individual sentences her Honour was considering, her Honour explicitly mentioned the guilty pleas as relevant matters.
To the extent the proposed grounds of appeal suggest otherwise they do not enjoy any reasonable prospects.
The gravamen of the residual complaints about the discount for the guilty pleas appears to be that:A greater discount ought to have been allowed on account of the guilty plea on the accessory after the fact to murder conviction; andIn addressing the need to take account of the cumulative sentence the primary judge fell into error with the effect of increasing the non-parole period. It is submitted there would have been an earlier parole eligibility date if the primary judge had merely reduced the aggregate head sentence but maintained the application of the percentages she had provisionally identified as appropriate to the sentences if imposed separately.
As to the first of these, the applicant has not demonstrated error. The primary judge identified the relevant factors. That she did not apply as a starting point a greater discount for the guilty plea is explicable by her view as to other relevant matters, including the lateness of the plea, the seriousness of the offence, the conduct of the applicant in trying to conceal his involvement and deflect the police and other matters.
The sentencing judge may make an order displacing what might be called the default position by imposing an earlier or later parole eligibility date. This Court, now more than 15 years ago, suggested that “[a]s a matter of general practice… the one-third mark of the sentence of imprisonment is seen as an appropriate starting point to recognise a plea of guilty”: R v Ungvari [2010] QCA 134 at [30]; R v DAC [2023] QCA 53 at [31]-[33]. That should not, however, be elevated to be the equivalent of a statutory rule. A timely guilty plea serves worthwhile objectives of avoiding the costs of a trial, sparing the victims or their families and other witnesses the stress of a trial, and also, depending on the circumstances, manifesting acceptance of responsibility, perhaps even remorse. But in each case the level of discount will depend on a range of factors: [2021] QCA 119 at [18]. That was the case here.
Not Manifestly Excessive
Nor is this a case where the applicant can establish that the sentence is excessive. Counsel for the applicant did not seek to make out that the sentence was excessive except by seeking to identify specific error in the assessment of the non-parole period in the overall sentence imposed. That approach was correctly taken. Far from being excessive the sentence imposed including the stated non-parole period is appropriate and if this Court was to approach the sentencing afresh, in my view the result would be unlikely to be any more favourable to the applicant. He committed two serious offences. They took place over a few months and were followed by conduct that covered extended periods (over years) of his seeking to conceal his role in them. He lied to those investigating the offences and sought to confect an alibi. There was no evident remorse and the pleas of guilty were made late. These factors, along with the others mentioned by the primary judge, in my view make the resultant sentence appropriate.
The test for whether leave should be granted for an appeal against sentence has been stated in this Court on many occasions. While numerous cases give guidance as to the factors which might affect the exercise of that discretion each recognises that the discretion is unfettered.
For the reasons given it cannot be said that this is an application warranting the grant of leave.
In my view the appropriate order is that the application be dismissed.
R
Tan [2025] QCA 209
(2014) 252 CLR 601
(2005) 228 CLR 357
(2001) 207 CLR 584
(2012) 247 CLR 1
Application for leave to appeal against sentence refused (the application was dismissed).
While in custody, the applicant kept in contact with his associates via the Prisoner Telephone System, during which he attempted to solicit false alibis from witnesses about his movements on the night of Mr Walsh’s murder.
DNA evidence demonstrated that the applicant assisted in cleaning the crime scene.
A few days after the unlawful killing, the applicant told Mr Chanh that G had assaulted Mr Griffiths because “he was molesting [a young identified woman] and bringing other people to molest [her]”.
A download of the applicant’s Google Pixel mobile phone revealed images consistent with Mr Griffiths’ wrapped remains, with visible blood stains in the background of the image and on the skirting board. The blood stains depicted in the images were consistent with locations wherein Mr Griffiths’ blood was located during the crime scene examination in February and March 2022.
Police obtained a number of recorded versions of events from the applicant which contained “self-serving lies” and were inconsistent with other evidence.
On 5 April 2022, police interviewed the applicant in relation to both homicides. During this interview, the applicant lied to the police concerning Mr Griffiths and his own involvement. These lies included statements:that he did not stay at the premises on 16 January 2022 (instead going home and returning only the next morning);that he saw Mr de Klerk and G throwing someone in the back of Mr de Klerk’s car;that he saw Mr Griffiths in the backseat, moving and alive; andas to Mr Bornstein and G’s and his own movements on 16 and 17 January 2022 as well as his knowledge of the molestation allegation against Mr Griffiths.
As to the second of these, it wrongly assumes three matters. It first reads her Honour’s remarks, where various percentages are referred to provisionally, as having a mathematical precision and a finality of assessment which they do not have.
Thus, it is urged, her Honour must have failed to take into account the combined impact of the sentences when applying the moderating assessment because, had she persisted with the percentages of the head sentences considered separately which she first articulated but reduced the head sentence of either by one year, the non-parole period would be less. That is because a 15.5 year head sentence with a discount of 40 per cent will always produce a figure larger than (a parole eligibility date later than) the aggregate of either: 8.5 years with a discount of 34 per cent plus 7 years with a 50 per cent discount; or 9.5 years with a discount of 34 per cent plus 6 years with a discount of 50 per cent.
But her Honour when dealing with the appropriate head sentences and possible non-parole periods expressed the latter as the product of application of approximate percentages. So, for the manslaughter conviction she referred to a parole eligibility date at approximately 66 per cent of the sentence. Her Honour used similar language in relation to the accessory after the fact to murder conviction there referring to approximately 50 per cent.
Secondly, the complaint assumes that the process of sentencing must have or even should be capable of calculation with mathematical precision. However, that is not the nature of the sentencing process: see R v Dwyer [2008] QCA 117 at [37]; Wong v The Queen (2001) 207 CLR 584 at [76]-[77]. It is unnecessary to dwell on this.
Thirdly, and more significantly, these remarks were made in the course of, and as steps in, her Honour’s reasoning anterior to her final consideration of what the cumulative head sentences and parole eligibility date should be.
It is not a fair reading of her Honour’s approach to identify either of these head sentences or provisional percentages as her Honour’s final settled view of what is appropriate. Indeed, that much is obvious but all the more so because of the use by her Honour of the language of approximation.
In setting out the process she adopted, the primary judge was exposing her reasoning not defining parameters for some calculation: Markarian v The Queen (2005) 228 CLR 357. The ultimate exercise of the sentencing discretion required her Honour’s assessment of what was, and satisfaction that what she imposed was, the appropriate overall sentence. That is what her Honour did.
The arguments fully advanced by counsel for the applicant do not support a conclusion that, if leave to appeal was granted, the appeal would have any reasonable prospects of success.
No issue is taken with the cumulative head sentence of 15.5 years. The issue taken is ultimately with the non-parole period which was determined to be a period of 9.5 years (a parole eligibility date of 14 September 2031 was fixed). The primary judge took into account all relevant considerations and the challenge to her assessment of the significance to be given to the guilty pleas, and to her application of the moderation required when assessing the cumulative non-parole period, are not made out, as discussed already. The applicant does not make out a case of specific error by the sentencing judge. Accordingly, this is not a case where this Court should, on that basis, grant leave and thereafter undertake the task of resentencing: cf Kentwell v The Queen (2014) 252 CLR 601 at [42]-[43].