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[2020] QCA 88
respondent. Application for leave to appeal refused.
The Court of Appeal refused WBL leave to challenge his sentence. Although the nine-and-a-half-year term was imposed on the charge of maintaining a sexual relationship with R, the sentencing judge intended that term to reflect the seriousness of all 18 offences. The Court assessed the sentence in that overall context, including the other offences and the reductions made for totality and mitigation. The applicant’s proposed evidence about how often the abuse occurred did not show that the judge had sentenced on a mistaken factual basis. The Court therefore did not accept that the global sentence was manifestly excessive.
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2,122 words · generated 02/10/2026
In R v WBL [2020] QCA 88, the Queensland Court of Appeal considered an application for leave to appeal against sentence. WBL had pleaded guilty to 18 sexual offences. The principal sentence was nine and a half years’ imprisonment for maintaining a sexual relationship with a child, R. The sentencing judge imposed concurrent, lesser terms for the other offences. The Court of Appeal refused leave.
No linked legislation citations have been extracted yet.
The offending occurred principally while WBL was in a de facto relationship with the children’s mother, D, between 2011 and 2015. The maintaining offence against R lasted approximately three years, beginning when she was about seven or eight years old. The judgment describes a range of abuse, including penetration, other sexual acts, exposure to pornography, and covert video recording while R showered [4]–[5].
WBL also committed physical sexual offences against R’s younger sister, J. These included touching her over her pyjamas and, on another occasion, penetrating her vulva with his penis. The judgment notes that he told J not to tell her mother [7]–[8]. The offending extended beyond the sisters: WBL secretly filmed D, D’s sister, several of the girls’ school friends and an unidentified pre-pubescent girl. He also showed videos to a friend and possessed them [9].
The offending came to police attention after WBL told a friend he had been touching R and J and showed the friend two videos. The friend contacted police. Police later found a USB stick containing recordings. WBL admitted recording people as they showered, but did not participate in an interview about the offences [9]–[11].
At sentencing, the judge treated the guilty plea as timely and as sparing the children from giving evidence, while noting that they had still prepared for trial [12], [16]. The judge’s approach was to impose a sentence on the maintaining charge that captured the overall criminality, rather than to make every term cumulative. He described a hypothetical overall starting point of 13 years, reduced it to 11 and a half years for totality, and then to nine and a half years to account for mitigation, including the guilty plea [21]–[22].
WBL’s sole proposed ground was that the sentence was manifestly excessive. He argued, among other things, that the offending against R occurred only occasionally, that his risk of reoffending was low, and that the sentence should be reduced to seven years with parole eligibility after 28 months [23]–[24]. The Court’s decision turned on how the sentence had been structured and on whether the proposed evidence about frequency contradicted the factual basis used by the sentencing judge.
The Court’s central point was that the nine-and-a-half-year term could not properly be assessed as if it were an isolated penalty for the maintaining offence. McMurdo JA explained that the sentencing judge had chosen concurrent sentences for the other counts, while increasing the maintaining-charge sentence to reflect the applicant’s overall criminality [26]. This approach was described as consistent with the method approved in R v Nagy [3].
The judge had identified offences for which cumulative terms could otherwise have been imposed. In particular, he had said that a four-year term for the rape of J would have been served cumulatively under that alternative approach. Rather than take that course, he imposed concurrent terms and made the maintaining-charge sentence carry the intended global sentence [21], [26]–[27]. The Court therefore read the nine-and-a-half-year term in light of the offending across all counts, not merely the conduct against R.
The Court also addressed the proposed evidence about the frequency of abuse. WBL sought to rely on R’s s 93A interviews, which were not before the sentencing judge. McMurdo JA concluded that this evidence did not contradict the factual basis of sentence. The sentencing judge had said he could not gauge the frequency of the conduct within the maintaining charge. The Court therefore understood that the judge had proceeded on the basis of relatively infrequent conduct over the three-year period [23], [25]. The proposed evidence did not establish that the judge had assumed a more frequent pattern.
The Court accepted that a sentence of eight years for the maintaining charge alone would not have been excessive if some allowance for mitigating factors were made through an earlier parole eligibility date [28]. But the other offences also mattered. The Court described the offences against other children, D and D’s sister as serious, and said they warranted further punishment [29]. Considered together, these matters meant the global nine-and-a-half-year sentence could not be accepted as manifestly excessive [30].
The judgment records that WBL had a good work history, no significant criminal history, character references and a timely guilty plea [13], [16]–[17]. It also records the psychologist’s assessment, including that WBL lacked insight and had a propensity to abuse alcohol and engage in disinhibited behaviour [14]–[15]. The Court did not treat those matters as displacing the sentencing judge’s assessment of the overall seriousness of the offending.
The judgment does not announce a new sentencing rule or describe a change in the law. It applies established sentencing concepts to the structure of this particular sentence. The Court expressly situates the sentencing judge’s approach within R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, which it describes as approving an approach where the sentence on a maintaining charge reflects the overall criminality of the offending [3].
The judgment also relies on the totality principle. The sentencing judge used that principle to reduce the identified overall starting point from 13 years to 11 and a half years before making a further reduction for mitigating factors [22]. The judgment cites Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 in connection with totality [22]. It does not set out a general account of the principle beyond describing how it was applied in this sentencing exercise.
On comparable sentences for maintaining a sexual relationship with a child, McMurdo JA referred to the recent discussion in R v CCK [2019] QCA 237 and said it was unnecessary to repeat that discussion [28]. The judgment therefore signals that comparable cases were relevant, but does not reproduce their detailed reasoning or establish a sentencing tariff.
As to the state of the law after this judgment, the supplied judgment contains no subsequent decisions or later treatment. It is therefore not possible, from this source alone, to say how later courts have applied, limited or developed WBL. Its stated contribution is narrower: it confirms that the Court assessed a sentence imposed on one count in the context of a global sentencing approach and the totality of the offending.
At [3], McMurdo JA says the sentence on the maintaining charge “was intended to reflect the overall criminality of all of his offending”. In plain English, the principal term was designed to account for the seriousness of the whole group of offences, not just the abuse of R.
At [25], the Court says it was to be assumed that the sentencing judge proceeded on the basis of “relatively infrequent conduct over the three year period”. This explains why the proposed interview evidence did not show that the judge had overstated how often the abuse happened. The Court considered that the judge’s stated difficulty in assessing frequency meant the sentence had not been based on an assumption of frequent offending.
At [26], McMurdo JA says the nine-and-a-half-year term “must be understood in that context”. The context was that the judge could have imposed cumulative terms but instead used concurrent terms and a principal sentence intended to reflect overall criminality. The passage cautions against evaluating the principal term without considering how the other counts were dealt with.
At [28], the Court says an eight-year sentence for the maintaining offence alone “would not have been excessive” if there were some allowance for mitigating factors by an earlier parole eligibility date. This is a fact-specific assessment, not a general prescribed sentence for such offending.
Finally, at [30], the Court concludes that “it cannot be accepted that the ‘global’ sentence of nine and a half years was manifestly excessive”. That conclusion follows from the global structure, the seriousness of the other offences and the Court’s understanding of the factual basis concerning frequency.
The reasoning is most directly relevant where a sentencing judge imposes a principal term on a maintaining-sexual-relationship charge and uses that term to reflect the offender’s overall criminality across multiple offences. The key feature is not simply that there are several counts, but that the sentencing judge explains how the principal term relates to the other sentences and whether those sentences are concurrent or cumulative [21], [26].
It may also be relevant where an appellant argues that a principal sentence is excessive by comparing it with sentences for the maintaining offence alone. WBL shows that the appellate assessment may depend on whether the principal term was intended to operate as a global sentence and on what additional punishment the other counts otherwise represent [26]–[30].
The decision also addresses a challenge based on proposed evidence about the frequency of offending. Here, the Court found no conflict between the proposed evidence and the sentencing judge’s stated inability to assess frequency, and treated the judge as having sentenced on a basis of relatively infrequent conduct [23], [25]. The reasoning is specific to that record and should not be read as deciding how different evidence would be treated in another case.
The judgment does not establish that every sentence on a maintaining charge should be treated as global, nor does it specify a standard sentence range. The relevant circumstances include the judge’s expressed sentencing method, the offences and complainants involved, the role of concurrency and cumulation, and the reductions made for totality and mitigation.
The supplied judgment does not contain any decisions subsequent to R v WBL [2020] QCA 88. It therefore provides no evidence about how later courts have treated it, whether they have followed or distinguished it, or whether it has been considered in later sentencing appeals.
The judgment itself refers to earlier authority. It describes R v Nagy as approving the approach of using the maintaining-charge sentence to reflect overall criminality [3]. It also cites R v CCK for a recent discussion of comparable sentences for the maintaining offence, without repeating that discussion [28]. The sentencing judge had referred to R v BCW and R v BBY as comparable cases, but the appeal judgment reports that reliance rather than restating those cases’ full reasoning [18].
The Court also referred to R v BBP when discussing the four-year sentence that might have been imposed for rape under an alternative cumulative approach [27]. The judgment gives only a brief comparison: an eight-year term in that cited case, involving rape of a niece aged nine or ten and imposed after trial, had not been disturbed. It does not undertake a broader analysis of that authority.
Accordingly, the source supports identifying the authorities that informed the reasoning, but not making claims about later precedent or the subsequent development of sentencing practice.
Several questions are left unanswered by the judgment. First, it does not set out the detailed sentencing principles or comparable-case analysis discussed in R v CCK. The Court expressly considered it unnecessary to repeat that material [28]. A reader would need the cited judgment itself to understand that discussion.
Second, the judgment does not provide a general formula for deciding when a sentence on a maintaining charge may appropriately reflect several offences. It explains the judge’s method in WBL’s case and the Court’s assessment of that method, but does not define the limits of the approach [21], [26].
Third, the reasons do not quantify the exact contribution each group of offences made to the global sentence. They describe the proposed starting point, the totality reduction and the further reduction for mitigation, but do not allocate the final term numerically among the maintaining offence, the rape, the recordings and the remaining counts [21]–[22].
Fourth, the judgment does not resolve how the applicant’s claimed remorse, risk assessment and willingness to undertake courses should be weighed in another case. Those matters were raised by the applicant [24], while the reasons focus on the global sentencing structure, the frequency issue and the seriousness of the additional offences [25]–[30].
Finally, the source does not establish how later appellate courts have treated WBL. Any claim about its later precedential significance would require material beyond the judgment supplied here.
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 WBL [2020] QCA 88
PARTIES: R / v / WBL / (applicant)
FILE NO/S: CA No 168 of 2019 / DC No 118 of 2018
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Beenleigh – Date of Sentence: 24 May 2019 (Chowdhury DCJ)
DELIVERED ON: 1 May 2020
DELIVERED AT: Brisbane
HEARING DATE: 7 February 2020
JUDGES: Fraser and Morrison and McMurdo JJA
ORDER: Application for leave to appeal refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, on his own pleas of guilty, to 18 sexual offences – where the applicant was sentenced on one of those offences, which was that he maintained a sexual relationship with a child, to a term of nine and a half years’ imprisonment – where the applicant was sentenced to concurrent and lesser terms for the other offences – whether the sentence was manifestly excessive / R v CCK [2019] QCA 237, cited / R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
COUNSEL: The applicant appeared on his own behalf / J A Wooldridge for the respondent
SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
MORRISON JA: I have read the reasons of McMurdo JA and agree with those reasons and the order his Honour proposes.
McMURDO JA: This is an application for leave to appeal against sentences imposed for 18 sexual offences. The applicant was sentenced on one of those offences, which was that he maintained a sexual relationship with a child, to a term of nine and a half years’ imprisonment. He was sentenced to concurrent and lesser terms for the other offences, the highest being one of four years’ imprisonment for an offence of the rape of another girl. His sentence on the maintaining charge was intended to reflect the overall criminality of all of his offending, in the way which was approved by this Court in R v Nagy.1 The applicant’s challenge, therefore, is to the sentence of nine and a half years’ imprisonment.
The offences
The most serious of the applicant’s offences were committed against two sisters, whom I will call R and J, when the applicant was in a de facto relationship with their mother, whom I will call D, from 2011 to 2015.
The offence of maintaining a sexual relationship was committed against R, over a period of approximately three years, who was approximately seven or eight years of age when it commenced. The offence ended only when R came to understand that what the applicant was doing was wrong. The offending against R included:
anal penetration with his penis;
licking the complainant’s genital area;
ejaculating on the complainant;
putting his penis between the complainant’s thighs;
having the complainant play with his penis;
handing a vibrator to the complainant and showing her how to use it;
standing naked in front of the complainant, asking her to suck his penis;
exposing her to pornography; and
using a camera to covertly take a video of R while she was showering, which the applicant then kept on a USB stick which was found in his possession.
As I have said, on the maintaining charge he received a sentence of nine and a half years’ imprisonment. For the other offences against R, he received concurrent terms of 18 months’ imprisonment.
The physical offending against J occurred on two occasions. On the first occasion, he touched her on the area of her vagina on the outside of her pyjamas. On the second occasion, when J was about nine years of age, he penetrated her vulva with his penis, by positioning her over him while he lay naked on the bed. He told her not to tell her mother. For those offences, he was sentenced to terms of 18 months’ and four years’ imprisonment respectively.
He also offended against J by filming her in the shower, and again, the video was located on a USB stick which police found in his possession. J was two and a half years younger than her sister.
There were other offences which involved the applicant covertly recording children and adults in the shower. The applicant filmed D, D’s sister and a number of school friends of R and J. There was also a video recording of an unknown pre-pubescent girl. The recordings of D and her sister resulted in terms of six months’ imprisonment, and the recordings of the other children resulted in terms of 12 months’ imprisonment in each case. Lastly, there were further concurrent terms, each of 12 months’ imprisonment, for offences involving the applicant showing, to a friend of his, two of the videos, and the applicant possessing the videos. All of the offending came to light when the applicant told this friend that he had been touching R and J, and showed the friend two of the videos.
The friend contacted the police. R was interviewed in May 2016 and the recording became admissible under s 93A of the Evidence Act 1977 (Qld). A few weeks later, police executed a search warrant at the house where the offences had been committed, and where the applicant was still living. He initially denied that he was in possession of any child exploitation material, until police located the USB stick. The applicant then admitted to recording persons, on different occasions over a two year period, as they showered at the house. But he declined to participate in an interview. A few weeks later, J provided her initial statement under s 93A. In the following months, police went back to the house, where the applicant declined to say where he had positioned the camera. During that search, he told police that he had recorded the children in the shower because he was concerned with water wastage. At the conclusion of that search, he expressed remorse for having made the recordings, but declined to discuss his partner or her children.
In February 2017, D conducted a pre-text telephone call with the applicant, who told her that he had never hurt J or R, but accepted that he had recorded them on the videos.
History of the proceeding
The applicant’s antecedents and psychological assessment
The applicant was born on 3 February 1981, so that he was aged 29 to 35 years at the time of the offences and 38 years at the time of the sentence. He had no significant criminal history.
The applicant relied upon a report of Dr Andrews, a clinical psychologist and neuropsychologist. Dr Andrews wrote that she was “somewhat puzzled” by the applicant’s account to her of the alleged offences, for which he said that he had memory difficulties around that period. He told her that he did not believe that the physical offences had occurred in the way in which they had been reported by the children, but that he did not want them to be repeatedly interviewed or examined, and therefore he had pleaded guilty. The applicant gave a version to Dr Andrews which was inconsistent with what became the agreed statement of facts at the sentencing hearing, and which I have summarised. He denied any recollection of the indecent dealing offence against J, saying that he might have been intoxicated at the time and he could have believed that J was, in fact, her mother (D). As to the offence of rape against J, the applicant told Dr Andrews that he did not accept that penetration had occurred, and added that J was the instigator of the contact. He denied having a sexual interest in children or adolescents, and he continued to claim that he had been filming girls and women in the shower because of his concern about the cost of water.
To Dr Andrews, the applicant appeared to be of average intelligence and he had described a functional and unremarkable childhood. He had been involved in a serious motorcycle accident in 2012, and he had told her that he had been medicating with alcohol to manage his pain. He had suffered from some adjustment difficulties following his accident. In her view, he was showing symptoms consistent with generalised stress and worry about his forthcoming sentence hearing. She noted that he had not been treated for or diagnosed with any mental illness. In her opinion, the applicant was someone with a propensity to abuse alcohol and engage in disinhibited and inappropriate behaviours. She concluded that the applicant lacked a level of insight into his actions.
The reasons of the sentencing judge
His Honour said that this was a timely plea which spared the children the requirement to give evidence, which was “a significant feature”, although the girls did have to prepare to give evidence by watching their police interviews and undertaking a conference with the prosecutor.
The judge said that the applicant had an excellent work history and that, although the applicant obviously drank too much, there was little in the applicant’s background to indicate why he would engage in this offending. His Honour noted that there were character references in favour of the applicant, including one from his employer.
The judge said that he had considered a number of comparable cases which had been referred to him in the submissions, of which he made specific reference to R v BCW3 and R v BBY.4 From the former, his Honour quoted the judgment of Holmes JA (as she then was) who said5 that in cases of this kind, a factual comparison between cases in order to establish a “hierarchy of heinousness” was “not necessarily fruitful”. From the latter, he referred to the statements by Atkinson J about the considerations which will be relevant in sentencing for the offence of maintaining a sexual relationship with a child.
His Honour made particular reference to the victim impact statements, including that by the children’s mother.
As to the offence of maintaining a sexual relationship, the judge said it was difficult to gauge the frequency of the offending which was within that charge. He noted that the applicant was in a position of trust and there were “obviously, numerous incidents of sexual abuse”.
His Honour explained the process by which he arrived at the sentences as follows. He said that for the offence of maintaining, if considered alone, he would sentence the applicant to a term of eight years’ imprisonment. He would then consider imposing concurrent terms for the offences of indecent dealing against the same complainant (R). He said for the offence of rape, he would have sentenced the applicant to four years’ imprisonment, to be served cumulatively upon the term of eight years. For the offences of secretly filming the other girls in the shower, he would have ordered terms of 12 months’ imprisonment, to be served concurrently with each other but cumulatively upon the terms of eight and four years. There would then have been lesser concurrent terms imposed for the other counts. In that way, his Honour said, he had reached “an overall starting point of 13 years’ imprisonment”.
The applicant’s submissions
In this Court, the applicant was without legal representation. The sole ground for his proposed appeal was that the sentence is manifestly excessive. In the course of his oral submissions, he sought to make some specific points, for one of which he applied for leave to adduce evidence, constituted by the s 93A interviews with the complainant R. The point which he sought to make from that evidence was that in the period of maintaining the sexual relationship with R, there were only occasional incidents of offending. According to transcripts of those interviews, provided to this Court by the respondent, R told the police that the offending did not happen “every time”, meaning at every opportunity. According to the applicant’s understanding of that evidence, R told the police officer that it occurred “around ten times”. The applicant’s point was that the offending occurred less frequently than in cases which had been submitted by the prosecution as comparable cases.
The applicant also relied upon the assessment by Dr Andrews that he was a low risk of re-offending. He argued that he had shown remorse and that allowance should be made for his willingness to participate in courses, both inside and outside prison, in order to address his behaviour. He submitted that the sentence should be reduced to one of seven years, with parole eligibility after 28 months.
Consideration
The s 93A evidence was not before the sentencing judge. But there is no inconsistency between the evidence to which the applicant refers and the factual basis upon which he was sentenced. The sentencing judge said that he was unable to assess the frequency of the offending within this charge, so it is to be assumed that he was sentenced upon the basis that there was relatively infrequent conduct over the three year period.
This case was complicated by the existence of several offences against different complainants in circumstances where, as the judge said, it would have been appropriate to impose cumulative terms of imprisonment. The judge decided instead to impose concurrent sentences, but to increase the sentence for one offence to result in a period of imprisonment which was commensurate with the applicant’s overall criminality. The nine and a half year term for the maintaining offence must be understood in that context.
Under the alternative approach which was open to the judge, one of the accumulated terms would have been for the offence of the rape of the complainant J. The judge said that had he followed that approach, a sentence for that offence would have been a cumulative term of four years. I do not suggest that this would have been an inadequate sentence, but, in the circumstance of the child being under his care, a four year term would not have been a heavy sentence.7
On the maintaining charge itself, a number of comparable cases are discussed in the recent judgment of Mullins JA in R v CCK,8 and it is unnecessary for me to repeat that discussion here. A sentence for that offence alone, of eight years’ imprisonment, would not have been excessive, if there was some allowance for the mitigating factors by an earlier parole eligibility date.
There were also the offences committed against other children and D and her sister. These were serious offences, especially those involving the children, warranting some further punishment of the applicant.
In these circumstances, it cannot be accepted that the “global” sentence of nine and a half years was manifestly excessive.
Order
[2004] 1 Qd R 63; [2003] QCA 175. ↩
Save for one count on which the Crown entered a nolle prosequi. ↩
[2014] QCA 340. ↩
[2011] QCA 69. ↩
[2014] QCA 340 at [22]. ↩
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. ↩
cf R v BBP [2009] QCA 114, where a term of eight years from the rape of the applicant’s niece, aged 9 or 10, was not disturbed, although that was imposed after a trial. ↩
[2019] QCA 237 at [22] to [29]. ↩
R
WBL [2020] QCA 88
(1988) 166 CLR 59
Application for leave to appeal refused.
But having regard to the totality principle,6 his Honour said, it was necessary to reduce “the overall sentence” to one of 11 and a half years’ imprisonment, and it was then necessary to reduce that for the mitigating factors including his plea of guilty. The result was that his Honour reduced the period of imprisonment to nine and a half years. His Honour said that he wished “to make it clear” he was imposing “the global sentence of nine and a half years’ imprisonment on count 1”. He explained to the applicant that he would be eligible to apply for parole after serving one half of that sentence.