R v BES - [2025] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

R v BES [2025] QCA 109

PARTIES:

R
v
BES
(applicant)

FILE NO/S:

CA No 18 of 2025
DC No 60 of 2025

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 22 January 2025 (Rafter SC DCJ)

DELIVERED ON:

24 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2025

JUDGES:

Flanagan and Brown JJA and Ryan J

ORDER:

Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child under 16 years, one count of unlawful carnal knowledge of a child and two counts of unlawful penile intercourse with a child – where the applicant and the complainant commenced a sexual relationship after the complainant told the applicant she was 16 years of age, but was in fact 13 years of age – where the complainant told the applicant she was 13 years of age and they maintained an unlawful sexual relationship for approximately seven and a half months – where the applicant was between 22 and 24 years of age at the time of offending – where the applicant suffers significant mental health impairments and reduced intellectual capacity – where the applicant contends that the sentencing judge erred in giving weight to the applicant’s acknowledgement that he knew what he did was wrong – whether the sentencing judge erred in treating the applicant’s acknowledgement that he knew what he did was wrong as lessening the impact of his mental disorders relevant to the reduction in his moral culpability

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child under 16 years, one count of unlawful carnal knowledge of a child and two counts of unlawful penile intercourse with a child – where the applicant and the complainant commenced a sexual relationship after the complainant told the applicant she was 16 years of age, but was in fact 13 years of age – where the complainant told the applicant she was 13 years of age and they maintained an unlawful sexual relationship for approximately seven and a half months – where the applicant was between 22 and 24 years of age at the time of offending – where the applicant suffers significant mental health impairments and reduced intellectual capacity – whether the combination of factors relevant to the sentence were such that the sentencing judge was required to conclude that those matters constituted exceptional circumstances

Paterson v R [2021] NSWCCA 273, cited
R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, cited
R v Bredal [2024] NSWCCA 75, cited
R v MCT

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BES

Details

AGLC: R v BES [2025] QCA 109
Case: [2025] QCA 109
Decision Date: 24 June 2025

CaseChat Overview and Summary

In this case, the applicant, who had pleaded guilty to maintaining an unlawful sexual relationship with a child under 16, as well as to charges of unlawful carnal knowledge of a child and unlawful penile intercourse with a child, sought leave to appeal against the sentence imposed. The applicant had engaged in a sexual relationship with a complainant who had initially told him she was 16 but was in fact 13 years old. The relationship continued for about seven and a half months after the complainant correctly identified her age. The applicant, who was between 22 and 24 years old at the time, suffers from significant mental health impairments and reduced intellectual capacity. The applicant contended that the sentencing judge erred in considering his acknowledgment that he knew his actions were wrong, arguing this lessened the impact of his mental disorders relevant to the reduction in his moral culpability.

The court was required to determine whether the sentencing judge erred in giving weight to the applicant's acknowledgment of wrongdoing and whether this acknowledgment lessened the impact of his mental disorders. Additionally, the court needed to consider whether the combination of factors relevant to the sentence constituted exceptional circumstances, potentially rendering the sentence manifestly excessive or inadequate. The court examined whether the sentencing judge had acted on the wrong principle in assessing the applicant's moral culpability and whether the sentence was appropriate in light of the mitigating factors presented.

The court found that the sentencing judge did not act on the wrong principle in considering the applicant's acknowledgment of wrongdoing. The court determined that the sentencing judge appropriately balanced the mitigating factors, including the applicant's mental health impairments and reduced intellectual capacity, against the gravity of the offences. The court concluded that the sentence was not manifestly excessive or inadequate and that the sentencing judge had correctly assessed the mitigating factors in the context of the offences. As a result, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v BES [2025] QCA 109
PARTIES:	R v BES (applicant)
FILE NO/S:	CA No 18 of 2025 DC No 60 of 2025
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 22 January 2025 (Rafter SC DCJ)
DELIVERED ON:	24 June 2025
DELIVERED AT:	Brisbane
HEARING DATE:	23 April 2025
JUDGES:	Flanagan and Brown JJA and Ryan J
ORDER:	Application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child under 16 years, one count of unlawful carnal knowledge of a child and two counts of unlawful penile intercourse with a child – where the applicant and the complainant commenced a sexual relationship after the complainant told the applicant she was 16 years of age, but was in fact 13 years of age – where the complainant told the applicant she was 13 years of age and they maintained an unlawful sexual relationship for approximately seven and a half months – where the applicant was between 22 and 24 years of age at the time of offending – where the applicant suffers significant mental health impairments and reduced intellectual capacity – where the applicant contends that the sentencing judge erred in giving weight to the applicant’s acknowledgement that he knew what he did was wrong – whether the sentencing judge erred in treating the applicant’s acknowledgement that he knew what he did was wrong as lessening the impact of his mental disorders relevant to the reduction in his moral culpability CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child under 16 years, one count of unlawful carnal knowledge of a child and two counts of unlawful penile intercourse with a child – where the applicant and the complainant commenced a sexual relationship after the complainant told the applicant she was 16 years of age, but was in fact 13 years of age – where the complainant told the applicant she was 13 years of age and they maintained an unlawful sexual relationship for approximately seven and a half months – where the applicant was between 22 and 24 years of age at the time of offending – where the applicant suffers significant mental health impairments and reduced intellectual capacity – whether the combination of factors relevant to the sentence were such that the sentencing judge was required to conclude that those matters constituted exceptional circumstances Paterson v R [2021] NSWCCA 273, cited R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, cited R v Bredal [2024] NSWCCA 75, cited R v MCT