R v Beu

[2025] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

R v BEU [2025] QCA 155

PARTIES:

R
v
BEU
(applicant)

FILE NO/S:

CA No 225 of 2024
DC No 2380 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 19 September 2024 (Porter KC DCJ)

DELIVERED ON:

26 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2025

JUDGES:

Bowskill CJ, Bradley JA and Callaghan J

ORDER:

1.   The application for leave to appeal against the sentence imposed on counts 1 and 2 is granted and the appeal against those sentences is allowed.

2.   The sentences imposed at first instance on counts 1 and 2 are varied by substituting an operational period of 18 months.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to three counts of indecent treatment of a child under 16, under care – where the applicant was sentenced to 18 months imprisonment for each of counts 1 and 2 and six months imprisonment for count 3, to be served concurrently – where the sentences imposed for counts 1 and 2 were ordered to be suspended, after six months, for an operational period of five years – whether the operational period of five years rendered the sentence manifestly excessive – whether the application for leave to appeal against the sentence should be granted

Penalties and Sentences Act 1992 (Qld), s 9, s 144, s 145

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied
R v Hartnett[2001] QCA 512, cited
R v Tilley (1991) 53 A Crim R 1, considered
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7, cited
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited

COUNSEL:

D V Nguyen for the applicant
S R O’Rourke for the respondent

SOLICITORS:

Craven Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  The applicant seeks leave to appeal against the sentences imposed on him for three counts of indecent treatment of a child under the age of 16 in circumstances where the child was under his care.

2. The then 68 year old applicant’s son was in a relationship with the mother of the 12 year old complainant, who called the applicant “granddad”.

3. In January 2022 all were living in the applicant’s house.  The complainant’s mother and the applicant’s son went away for a long weekend and left the complainant in the care of the applicant.

4. On the morning of 31 January, the applicant began giving the complainant a massage on her back.  The complainant agreed to have her bra removed for the massage to continue.  After turning her over such that she was lying on her back, the applicant started sucking on her breasts.  He then pulled her towards him and started kissing her, remarking that he had “not done that for 24 years”.

5. The complainant remained silent.  The applicant told her that he “shouldn’t be doing this” and told her not to tell anyone.  These acts were the subject of count 1.

6. Later in the day the applicant approached the complainant and started rubbing her back.  He pulled off her bra and again sucked her breasts (count 2).  He then got down on his hands and knees and started kissing her leg (count 3).

7. The complainant reported the offending to her mother as soon as she returned.

8. The applicant was 71 years old by the time he was sentenced.  He had no criminal record and a successful work history.  He had some medical issues that were considered by the learned sentencing judge to be “not particularly serious, objectively.”

9. An indictment was presented on 9 November 2022.  On three separate occasions, the matter was listed so that the complainant’s evidence could be pre-recorded.  The first was adjourned for the purposes of a protected counselling communications application, which was pursued for six months until October 2023, when it was dismissed.

10. On 25 January 2024, the pre-recording was delisted because the applicant changed lawyers.

11. His plea of guilty was offered the day before the rescheduled hearing and only after the complainant, in preparation, had to watch the video recording of her interview with police.

12. On counts 1 and 2, the applicant was sentenced to imprisonment for a period of 18 months.  On count 3, he was sentenced to imprisonment for six months.  All of those sentences were to be served concurrently.  The terms of imprisonment imposed on counts 1 and 2 were ordered to be suspended, after the applicant had served six months, for an operational period of five years.

13. If leave was granted, the ground of appeal would be:

    “The sentence is manifestly excessive because:

    (a)The sentence of 18 months imprisonment for counts 1 and 2 was excessive; and/or

    (b)The operational period of five years for counts 1 and 2 was not proportional and excessive.”

14. The applicant’s counsel conceded that his argument in support of (a) was a “difficult one to make”.

15. It can be dealt with at once.  The Court was referred to some cases[1] which were said to make it “arguable” that the sentence might have been lower.  Even if that was the case, it would not mean that the sentence imposed was manifestly excessive, and it was not.  This ground is rejected.

    [1]R v SDX[No 2] [2024] QCA 78; R v MDG [2020] QCA 113; R v SDF [2018] QCA 316; R v Nelson [2018] QCA 53; R v Horvath [2014] QCA 344; R v CBI [2013] QCA 186.

    Operational periods

16. This application was heard on the same day as the application made by R v Pacaci [2025] QCA 154.

17. These cases required some conceptual consideration of suspended sentences, and the following observations (in [18] – [54]) are applicable to both.

    History

1. The history of suspended sentences in Queensland traces at least to the Offenders Probation Act of 1886.  Section 3(2) of that Act applied to first offenders or those whose only offence had been a crime punishable by no more than three months imprisonment.  A court sentencing such an offender could suspend the execution of the sentence, on terms, “for a period from the date of the sentence equal to the term of the sentence, or if the term of the sentence is less than twelve months, then for the period of twelve months.”[2]

   [2]Underlining added.

2. An amended form of s 3(2) appeared as s 682 in Sir Samuel Griffith’s draft[3] and in 1901 was enacted as s 656 of the Criminal Code. It applied to offenders with no or minor criminal history and if the notional term of imprisonment did not exceed three years. It contemplated only the suspension of the whole of the term of imprisonment imposed,[4] and it remained the case that what we now call the “operational period” could run only for a period “equal to the term of the sentence.”

   [3]Griffith, Sir Samuel Walker, Draft of a code of criminal law: prepared for the Government of Queensland; together with an explanatory letter to the Attorney-General, a table of contents, and a table of the statutory provisions proposed to be superseded by the code (Government Printer, 1897) (Qld).  Notes describe the procedure as an “indulgence…” but that was said in the context of a statute which made provision for whipping, sentences being served in irons and the death penalty.

   [4]A more elaborate version, which amongst other things allowed for partial suspension of a term of imprisonment, was created by the insertion of s 656(2A) in 1943 but this was removed in 1971. These amendments added no new learning about operational periods.

3. In 1992, s 656 was removed and replaced upon enactment of the Penalties and Sentences Act 1992 (Qld) (the Act), which introduced, in Part 8, the concept of suspended sentences as it is understood today.

   Section 144

1. Section 144 of the Act provides:

   “144   Sentence of imprisonment may be suspended

   (1)If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended.

   (2)An order under subsection (1) may be made only if the court is satisfied that it is appropriate to do so in the circumstances.

   (3)An order under subsection (1) may suspend the whole or a part of the term of imprisonment.

   (4)A court must not suspend a term of imprisonment if it is satisfied, having regard to the provisions of this Act, that it would be appropriate in the circumstances that the offender be imprisoned for the term of imprisonment imposed.

   (5)The court must state an operational period during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 for the suspended sentence.

   (6)The operational period starts on the day the order is made and must be—

   (a)     not less than the term of imprisonment imposed; and

   (b)     not more than 5 years.”[5]

   [5]Section 144 has been amended only once since its enactment and has been in this form since 1993.

2. At the outset it is open to compare an order made under this section with others that can be made within the same statutory scheme, such as those which provide for a judge to nominate the date upon which an offender may be released on or become eligible for parole.  A discretion is exercised in fixing those dates, but the effective duration of the sentence cannot run beyond the length of the term of imprisonment.

3. Section 144 creates the possibility for a term of imprisonment to be relevant for a period which is longer than the term of imprisonment itself. However, nothing in any extraneous materials assists in learning how to apply this section. As is commonly the case, the explanatory note is an exercise in replication rather than explanation. The second reading speech notes that the existing procedure for which s 656 provided had “proved to be ineffective and appears to have largely fallen into disuse,”[6] but said nothing about the way it was envisaged the new provision would actually operate.

   [6]Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 5 November 1992 at 151.

4. To the extent that this Court has made any observations about operational periods[7] they have been understandably concerned with the circumstances of the particular case rather than articulating principles of general application.  In R v Hartnett, however, Chesterman J observed that, whilst s 144 confers a wide discretion to be exercised according to the particular circumstances of each case, generally there should be some proportionality between the length of the suspended term of imprisonment and its operational period.[8]  The same can be said of cases in which comparable provisions have been considered in other jurisdictions.[9]  Although, in Cooper v Parsons, Mildren J observed that the purpose of an operational period is two-fold: to provide an opportunity for the prisoner’s rehabilitation but at the same time to operate as a special (personal) deterrent from re-offending.[10]

   [7]R v Ali [2023] QCA 207; R v Hartnett [2001] QCA 512; R v Kelly [2006] QCA 467.

   [8]R v Hartnett [2001] QCA 512 at p 6 per Chesterman J, McPherson JA and Mackenzie J agreeing.

   [9]R v Zarrinkafsh [2005] VSCA 22; Cooper v Parsons (2012) 31 NTLR 195; [2012] NTSC 34; JED (a minor) v O’Berg [2015] NTSC 7; R v Pemberton [2021] EWCA Crim 1768.

   [10]Cooper v Parsons (2012) 31 NTLR 195; [2012] NTSC 34 at [39].

5. In the United Kingdom, the Sentencing Council has issued a “guideline” which gives “general guidance” that suggests, in a certain context within that jurisdiction:

   “[t]he time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months.”[11]

   [11]Sentencing Council, General guideline: overarching principles (online, 1 October 2019).

6. However, an examination of the relevant provisions reveals that the systems are sufficiently different for such an observation to be of no real assistance in the application of Queensland legislation.

   Purposes of sentencing

7. The answer to the question posed by this application depends on the proper construction of s 144, which requires consideration of the words used, having regard to the context and purpose of the provision.[12]

   [12]R v A2 (2019) 269 CLR 507 at 520-522 [32]-[36] per Kiefel CJ and Keane J, 545 [124] per Bell and Gageler JJ.

8. To suspend a term of imprisonment, or part of it, means to defer or postpone the requirement to serve the term until a later time.[13]  The condition on which the term is suspended is that the offender does not commit another offence punishable by imprisonment.  If that condition is breached, the discretionary power of the court to order the offender to serve part or all of the suspended term is enlivened.

   [13]Oxford English Dictionary Online.

9. The purpose of the provision, as informed by extrinsic materials, was to “[enlarge] the armoury of sentencing options available to courts”, to enable a court to impose a considerable punishment on an offender, which may “stop short of depriving the offender of liberty, employment and effective rehabilitation within the community”,[14] or limit the duration of any such deprivation, whilst holding the offender to account in the event they commit another offence during the course of the suspended sentence.  In practice, this sentencing option is generally considered appropriate only where it appears to a sentencing judge that conditional release (such as on parole) is not warranted, having regard to the circumstances of the particular offender.

   [14]Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 5 November 1992 at 151.

10. Section 144 confers three separate discretions, all preconditioned upon the court sentencing an offender to imprisonment for five years or less (s 144(1)).

11. The first involves the question whether to order that the term of imprisonment be suspended at all (s 144(1)).  The court may only do that if satisfied it is appropriate in the circumstances (s 144(2)).

12. The second involves the question whether the whole or only part of the term of imprisonment should be suspended (s 144(3)).

13. The third is the further and separate discretion as to the duration of the “operational period”, which the court is required to state under s 144(5).

14. The only express parameters provided in s 144 for the duration of the operational period are that it must not be less than the term of imprisonment imposed and it must not be more than five years (s 144(6)).

15. As noted, under the earlier iterations of suspended sentence provisions, there was no option but for an operational period that ran for the same length as the term of imprisonment. However, it is clear from the language used that s 144 confers a discretion on the court to suspend a term of imprisonment for an operational period that is longer than the term of imprisonment.

16. The question for present purposes is what are the principles which guide the exercise of that discretion?

17. The context of the provision includes the Act as a whole. It is relevant in that regard that the discretion – to set an operational period which is longer than the term of imprisonment (an “extended operational period”) – was created at the same time as the statutory requirement that every sentence should reflect chosen purposes.

18. The purposes are those identified in s 9(1) of the Act:

    “9      Sentencing guidelines

    (1)The only purposes for which sentences may be imposed on an offender are—

    (a)     to punish the offender to an extent or in a way that is just in all the circumstances; or

    (b)     to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or

    (c)     to deter the offender or other persons from committing the same or a similar offence; or

    (d)     to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

    (e)     to protect the Queensland community from the offender; or

    (f)     a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).”[15]

    [15]Underlining added.

19. As defined in s 4 of the Act, “sentence” means “a penalty or imprisonment ordered to be paid or served, or another order made, by a court after an offender is convicted, whether or not a conviction is recorded”. In a case such as the present, the “sentence” therefore includes the order of imprisonment as well as the order that the term of imprisonment be suspended, in whole or in part, and the operational period set under s 144(5).

20. It follows that the determination as to the appropriate operational period in any given case must also be made by reference to one or more of the purposes in s 9(1).

21. The respondent agreed that this could not be done by reliance upon the purposes of general deterrence or denunciation – the length of an operational period says little to anyone other than the person being sentenced.

22. It can be accepted that the Damoclean presence of an operational period may have the effect of punishing an offender, but it cannot be thought that it was intended to be used in that way.  Its deployment for that purpose would be too subtle and contingent.

23. An extended operational period may, however, serve as a personal deterrent, and concurrently work to cement an offender’s rehabilitation.  In those ways community protection can be achieved.  The service of one or more of those purposes may, if the need is present in the particular case, justify an extended operational period.

24. It should not be difficult in any given case to express that justification in the form of reasons.  The discipline involved in this process is calculated to reveal fallacies in conclusions that are not supported by the applicable principles.[16]  Otherwise it may be argued that applicable “principle was not applied, rather than applied but not recorded.”[17]  Anchoring the need for an extended operational period to the service of a statutory purpose may defeat such arguments.

    [16]AK v Western Australia (2008) 232 CLR 438 at [108].

    [17]Fleming v The Queen (1998) 197 CLR 250 at [30].

    Proportionality

25. There is another dimension to the way in which the validity of an extended operational period might be assessed, and that is proportionality.

26. There are two aspects to this: the requirement for a sentence to be proportionate to the objective gravity of the crime; and for some internal proportionality as between the particular elements of a sentence.

27. As to the first, it is “a basic principle of sentencing law … that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”.[18]

    [18]Hoare v The Queen (1989) 167 CLR 348 at 354.

28. That common law requirement is reflected in the s 9(1)(a) requirement, to punish an offender to an extent and in a way that is just in all the circumstances.

29. Relevantly for present purposes the requirement for proportionality, implicit in the notion of a punishment that is just in all the circumstances, extends not only to the term of imprisonment imposed but also to the operational period during which that term of imprisonment is suspended.

30. It is well established that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.[19] The principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; although it is appropriate – and indeed required by s 9(1)(e) of the PSA – to consider community protection in determining what is an appropriate sentence.[20]

    [19]Veen v The Queen (1979) 143 CLR 458 at 467, 468, 482-483, 495; Veen v The Queen [No 2] (1988) 164 CLR 465 at 472.

    [20]Veen v The Queen [No 2] (1988) 164 CLR 465 at 473 and 487-488.

1. As to the second aspect, the application of s 144 is, as an exercise in sentencing, inherently discretionary. It will be impossible to insist on mathematical formula, legitimate expectations as to “ratios” or indeed to lay down any rule of general application. The discretion must be exercised having regard to the particular circumstances of each case, and no two sets of circumstances will ever be the same.

2. However, whilst no formula is involved, the concept of structuring a sentence that involves a term of imprisonment with additional components is not new, and has always demanded regard for the concept of proportionality.  For example, when considering the proportionality between a term of actual custody and any further period to be spent on parole, Gibbs CJ wrote:[21]

   “No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.”

   [21]Lowe v The Queen (1984) 154 CLR 606 at 610. See also Brennan J at 620: “There must be such a relationship between the head sentence and the non-parole period that it is appropriate”. Dawson J at 625: “Having regard to the purpose to be served by the fixing of a non-parole period, it is obvious that it should not be made disproportionate to the full term. It nevertheless remains very much a matter within the discretion of the sentencing judge”.

3. Such observations are applicable here.  Sometimes disproportionality will be self-evident.  For instance, in R v Tilley,[22] Thomas J (as his Honour then was) suggested that a sentence of five years imprisonment accompanied by a recommendation for parole after two weeks revealed “a self-contradiction or … a double standard.”  De Jersey J (as his Honour then was) thought there was “an oddity” about that penalty which cried out for an explanation, and that it was unfortunate the sentencing judge “did not explain very precisely and directly why he considered it appropriate.”[23]  In the absence of an explanation a “self-contradictory” order of this kind could not survive appellate scrutiny.

   [22]R v Tilley (1991) 53 A Crim R 1 at 4.

   [23]Ibid at 5.

4. On the other hand, in some cases the explanation for an extended operational period in the allocated proportions may be obvious.  In every case, however, this aspect of a sentence – which is as reviewable as any other – must be justifiable either on its face or by reference to reasons that are discoverable.

   Was the extended operational period in this case manifestly excessive?

5. In common with the offender in Pacaci, the applicant in this case did not contend that any specific error was made by the sentencing judge.  Rather, he argued that the Court would find an error of the second kind contemplated by the court in House v The King (1936) 55 CLR 499 at 505. That is, that upon the facts of this case, a five year operational period was “unreasonable or plainly unjust” in a way that allowed this Court to infer that there had been a failure properly to exercise the discretion. This in turn was said to enliven review on the ground that a substantial wrong had in fact occurred.

6. The applicant argued that having regard to the term of imprisonment imposed (18 months), and the fact that as a result of the convictions he became subject to the reporting obligations under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), an operational period of five years was manifestly excessive, and also inconsistent with the comparable decisions relied upon.

7. The sentencing judge gave no reasons to explain why he imposed an operational period of five years.  Indeed, no submissions were made about that aspect of the sentence either – the prosecutor simply left it open as to whether the sentence would be suspended after a time, or a parole eligibility date fixed;[24] and the applicant’s counsel sought suspension after a short time, but did not say anything about an operational period.

   [24]If parole had been considered appropriate, an eligibility date was the only option because of the nature of the offence (see s 160D of the Act).

8. The sentencing judge arrived at the overall term of imprisonment that his Honour considered was justified, having regard to the circumstances of the offence and the applicant himself.  The order that the applicant serve one-third of the 18 month term of imprisonment (six months) was, indirectly, explained by reference to the late stage at which the applicant entered his pleas of guilty.  The nature of the offences meant that the sentence was required to include an actual custodial component, unless there were exceptional circumstances,[25] which the applicant did not contend there were.  The sentencing judge gave the applicant the benefit of his pleas by only requiring him to serve the “usual” one-third; but was not persuaded to reduce the period of actual custody below that.

   [25]See s 9(4)(c) of the Act.

9. The applicant’s offending was situationally specific, apparently opportunistic and out of character.  Personal deterrence did not seem to be a particular concern – or at least not one that was likely to linger beyond the balance of the term of imprisonment that was imposed.

10. Similar considerations attend the notion of rehabilitation.  As offensive as the applicant’s conduct was, there was nothing to suggest it reflected an established propensity in need of correction.  The plea was late but followed a change in legal representation.  When it was entered, it came without qualification or challenge to the facts.  The applicant’s counsel informed the sentencing court that he held instructions that the applicant “was remorseful for the offending and felt great shame”.  The applicant’s offending would no doubt have come to the knowledge of his family, who were in a position to ensure that the relevant situation would not be recreated.  At 71 years of age, there is nothing to suggest any particular concern that the wider community had a need to be protected from the applicant – not, at least, a need that would be satisfied by an operational period of this length.

11. Consistent with all of those matters, the sentencing judge expressly found that the applicant was “unlikely to be a risk to anyone else, given the experiences you have had, and are about to have on this occasion”.  It may be inferred that is the reason the sentencing judge considered it appropriate to suspend the sentence, rather than providing for conditional release on parole – although, again, no reasons were given for this.

12. In the face of the finding that the applicant was “unlikely to be a risk to anyone else”, and bearing in mind the principles as to proportionality discussed above, there is no objective basis upon which to justify the imposition of a five year operational period by reference to any of the purposes in s 9(1) of the Act. It could not be justified on the basis of community protection or personal deterrence. The selection of a five year operational period appears to have been random.

13. As it cannot be justified by reference to any of the purposes of sentencing, and is completely out of proportion to the 18 month term of imprisonment, of which only six months was required to be served, this element of the sentence was manifestly excessive, because the duration of the operational period is unreasonable and plainly unjust.

14. Whilst we have noted that, in a particular case it may be appropriate to impose an extended operational period, we can discern no proper reason for doing so in this case.  That conclusion is reinforced having regard to the applicant’s ongoing obligations under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) which will subsist for five years from the date of his sentence.[26]

    [26]See ss 5(1)(a), 9(2), 36(1)(d) and 37(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act2004.  See also R v Bunton [2019] QCA 214 at [27]-[31].

15. It is therefore appropriate to order that:

    (a)The application for leave to appeal against the sentence imposed on counts 1 and 2 is granted and the appeal against those sentences is allowed.

    (b)The sentences imposed at first instance on counts 1 and 2 are varied by substituting an operational period of 18 months.