R v DCQ
[2025] QCA 146
•8 August 2025
SUPREME COURT OF QUEENSLAND
CITATION:
R v DCQ [2025] QCA 146
PARTIES:
R
v
DCQ
(applicant)FILE NO/S:
CA No 60 of 2024
DC No 175 of 2024DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 21 March 2024 (Byrne KC DCJ)
DELIVERED ON:
8 August 2025
DELIVERED AT:
Brisbane
HEARING DATE:
13 May 2025
JUDGES:
Bowskill CJ and Bond JA and Callaghan J
ORDERS:
1. The applications for leave to adduce further evidence are refused.
2. The application for leave to appeal against sentence is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant pleaded guilty and was sentenced to 10 years’ imprisonment for serious violent and sexual offences against his former partner – where an automatic declaration of a serious violent offence followed – where at the sentencing hearing an expert report from a forensic psychologist was relied upon – where post-sentence the applicant commenced psychological counselling with a clinical psychologist – where the later psychologist observed that there were diagnostic possibilities that were not raised at the applicant’s sentence – where the applicant’s solicitor then arranged for a psychiatrist to assess the applicant and provide a report – where the applicant gave a substantially different report of his childhood, and social isolation, to the later psychologist and the psychiatrist – where the psychiatrist noted the possibility of various conditions including mild autism, ADHD and unspecified trauma-related disorder, which may have played some role in the applicant’s offending – where the applicant applies for leave to adduce new evidence, being the evidence of the later psychologist, the psychiatrist, his solicitor and himself, in order to establish a ground for the grant of leave to appeal against his sentence, that the sentencing process miscarried because the sentencing judge did not have all the information that was relevant to the formulation of the appropriate sentence – consideration of the appropriate test to be applied on an application for leave to adduce new evidence on an application for leave to appeal against sentence – whether, if the new evidence were not received, there would be a miscarriage of justice – whether leave should be granted for the applicant to appeal the sentence
Corrective Services Act 2006 (Qld), s 182(2)
Criminal Code (Qld), s 564(3A), s 668D(1)(c), s 668E(3), s 671B(1)(d), s 671B(2)
Penalties and Sentences Act 1992 (Qld), s 9(10A), s 12A, s 161AAlessawi and Snowball v R [2025] VSCA 23, considered
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, considered
Pajares v Commissioner of Police[2025] QCA 9, cited
R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, cited
R v Cain[2010] QCA 373, cited
R v Flew[2008] QCA 290, cited
R v Free; Ex parte Attorney-General of Queensland (2020) 4 QR 80; [2020] QCA 58, cited
R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, cited
R v Kampf[2021] QCA 47, cited
R v M[2001] QCA 166, considered
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v Morrow[2006] QCA 305, cited
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v Shabanzadeh[2025] QCA 92, applied
R v Utley[2017] QCA 94, considered
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited
R v VN[2023] QCA 220, cited
R v Wallace[2023] QCA 22, cited
R v Walsh[2008] QCA 391, consideredCOUNSEL:
S C Holt KC, with R M Kurz, for the applicant
S J Muir for the respondentSOLICITORS:
Robinson Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent
BOWSKILL CJ: The applicant was convicted, on his pleas of guilty, of serious offences against his former partner of rape, sexual assault (whilst armed), assault occasioning bodily harm (whilst armed), deprivation of liberty and unlawful possession of a category H weapon (an air pistol) used to commit an indictable offence. The offences against the applicant’s former partner were domestic violence offences,[1] which was an aggravating factor.[2] On 21 March 2024, he was sentenced, for one of the rape offences, to imprisonment for 10 years, with lesser concurrent terms imposed on the other offences. His time spent in custody leading up to the sentence, of almost two years, was declared as time served under the sentence. He will not be eligible for parole until he has served 80 per cent of the sentence.[3]
[1]See s 564(3A) of the Criminal Code and s 9(10A) and s 12A of the Penalties and Sentences Act 1992 (Qld).
[2]See s 9(10A) of the Penalties and Sentences Act 1992 (Qld) (inserted in 2016, by the Criminal Law (Domestic Violence) Amendment Act 2016).
[3]By operation of s 161A(a)(ii) of the Penalties and Sentences Act 1992 (Qld), which deems a conviction of an offence to be a conviction of a serious violent offence where the offender is sentenced to 10 or more years imprisonment for the offence, and s 182(2) of the Corrective Services Act 2006 (Qld), which provides that the parole eligibility date for a prisoner serving a term of imprisonment for a serious violent offence to be the lesser of 80 per cent of the term or 15 years.
The applicant applies for leave to appeal his sentence on the sole ground that “the sentencing process miscarried because the learned sentencing judge did not have all of the information that was relevant to the formulation of the appropriate sentence”.
In order to make out that ground, the applicant applies for leave to adduce new evidence, namely:
(a)a report of Dr Kovacevic, psychiatrist, dated 20 September 2024;
(b)a report of Ms Bardsley, psychologist, dated 9 April 2025;
(c)an affidavit of the applicant, affirmed on 2 April 2025; and
(d)an affidavit of Dr Kovacevic, annexing two “addendum reports” in response to questions raised by the applicant’s solicitor following an adjournment of this proceeding.
The applicant accepts that his application for leave to appeal is entirely contingent on the success, or otherwise, of the applications to adduce new evidence. For the reasons that follow, I would not grant leave to adduce the new evidence and so would refuse the application for leave to appeal against sentence.
The sentencing hearing
The sentencing hearing proceeded by reference to an agreed statement of facts. As summarised by the learned sentencing judge, the circumstances in which the offences were committed were as follows:
“Your offending is atrocious. All offences, all six offences, occurred within a relatively short space of time, although there was premeditation. Your Counsel estimates, and it is not demurred to by the prosecution, that the actual offending itself must have occurred over about half an hour. It is clear there had been considerable planning beforehand. There are two complainants. The female complainant was your partner. She was aged 50 years. You were aged 54. You and she had a relationship from about 2009. There is, potentially, a conflict of the facts on the matter, which your Counsel disavows reliance on. The agreed statement of facts indicates that two of you had maintained a close relationship but were not physically intimate after about that one year.
It does not seem to me to matter whether, in fact, there was continued physical affection between the two of you. What you did is fundamentally unjustifiable whether you perceived that the female complainant was being unfaithful to your relationship or not. It is agreed that you had undertaken controlling-style behaviour of the complainant for about six years leading up to the offences. This included frequent questioning as to her whereabouts and requests to send photographic proof of who she was with. It is said that if she were to ignore the behaviour, she would receive multiple calls which she would not answer from you.
Directly relevant to these proceedings is the fact that you had at some stage during that time installed closed-circuit TV and an audio recording device at the complainant’s residence without her knowledge in the days leading up to the offending. You also, through your own internet browsing activities, did searches relating to GPS tracking of vehicles and listening devices. Some months prior to the date of the offence, she commenced a relationship with the male complainant who lived in another town. They would spend time with each other even though it involved travelling. Also relevant to the context of this offending is that you and the female complainant shared a holiday house at Bellara on Bribie Island.
On the 10th of February of 2022, the covert CCTV footage periodically showed the female complainant using her phone between about 6 am and 8.15 am. She was at one point speaking to the male complainant. He used a particular phrase, which was recorded on the devices. She left for work. Later that morning, you are seen on the CCTV footage removing the recording device from underneath the coffee table on the veranda where she had been speaking. You then sent a text message to a female that you were in a sexual relationship with. You indicated that you had caught her out with a recording device, and you repeated the essence of the phrase used by the male complainant. You were seen on the footage to be walking around with the device, that is, the recording device. Ultimately, in the course of the police investigation, they discovered there were two other short recordings. They were made by you. They said:
So, yes, um, here we are today, around 1. Just seeing how we’re going to go here and how we can do it and what we can do and get away with it. Um, hopefully, everything will be right.
The second short recording was you saying:
Yeah, I know what I’m doing. I’ve just got to be careful. Hope we don’t get into trouble and don’t get caught. That’s the way it is. Got to be patient with me.
In my view, that is damning evidence of premeditation and also a realisation of the wrongfulness of what you were about to undertake. It shows the ultimate offending was premeditated and planned. It shows your motivation was a belief of unfaithfulness, somewhat ironically at the same time as you were in a sexual relationship with someone else. Later that day, you made some general questions of the female complainant as to what she was to do at Bellara. She did not particularly respond.
That evening, she and the male complainant, met, went to Bellara and went to sleep together in the master bedroom. The back door had been open because of a pet dog. She went to sleep but awoke at a time which, it seems, must have been close to or perhaps a little after 4.30 am. You were standing inside the house at the back door, armed with an air pistol, which is the weapon the subject of count 1. She saw you and went back to the bedroom to alert the male complainant. You approached her and questioned her about the man in the bed. You pushed her into the kitchen area, grabbed both of her wrists and bound them together with zip ties in front of her body. It is said that these zip ties had been brought by you to the property. She was, understandably, distressed and was screaming. The male complainant came out of the bedroom, and you ordered him to get on the ground, which he did. You were waving the weapon at him, which is depicted in the photographic exhibits I have seen.
To reinforce the proposition that your motive was a belief of sexual infidelity, you screamed at the male complainant words to the effect, ‘Are you fucking her?’ It was denied, but that did not placate you. You wrapped gaffer tape around the complainant’s head a few times, no doubt in an effort to stop her screaming. You and the male complainant ended up scuffling in the living room area. The female complainant was yelling to leave him alone and also for her not to be shot. She asked to be able to speak to her mother before she was shot by you. You used your fist and struck the male complainant to the left eye on either one or two occasions.
You were still armed with the gun at this point. The male complainant realised that, put his hands up and started to leave, with you telling him to get out while you were waving the gun at him. He began moving to the garage door, and you struck him to the back of the head with the gun. He left the residence and ran to get help.
While that occurred and while you were still armed with the air pistol and after having told the complainant that you’d had a PI, which, I assume, is a private investigator, put in listening devices, you directed her to the bedroom. She continued screaming and was upset, begging not to be shot. You told her, ‘You might not die today from being shot. I’m going to get petrol to burn you alive.’ You also told her, ‘I’m going to have sex with you before I shoot you,’ and you told her to take off her clothes. You removed the tape from her head, and you cut the zip ties from her wrists. You said in terms that if you found any ejaculate inside her or on the bed, she would be shot in the mouth.
You pushed her so that she was laying on her back. You took off her pants and underwear, sat her up on the edge of the bed and told her to perform fellatio until you told her to stop. She did it. That is the subject of count 4, rape. You pushed her onto her back, asked if she wanted you to perform cunnilingus, and even though she said no, you told her she was going to like it. You performed cunnilingus. That is the act the subject of count 5. You then said that, ‘We’re having sex now,’ and you effected penile penetration of her vagina, the subject of count 6. You were not wearing a condom. It was painful. She clearly was not aroused in the factual circumstances, and you caused her to bleed from the act of penetration.
The gun had been on the bed during the commission of all of these offences. She asked, ‘Are you going to shoot me?’ And you said, ‘I haven’t decided yet. Turn over so I can keep fucking you.’ She asked to go to the toilet. You told her she couldn’t leave and demanded she again fellate you. She said she could not. Your demand then was, ‘Lay here and cuddle me so I can finish.’ Incredibly, you continued with the words, ‘Are you enjoying it? This is what it should be like.’ She did not reply. You gave her some toilet paper, which was used to tend to the bleeding. You went through her phone. You read some of the messages out loud. You went through the male complainant’s belongings. You tidied up the area, including wiping down the gun. Ultimately, it can be inferred that you went out in the backyard and buried the gun, where it was ultimately found, and was found loaded.
You told her a story to say if police arrived. They did. Ultimately, you exited the premises. I need not say anything more about what was found at the scene. Suffice to say that there was considerable corroboration for the accounts which had been given as to the offending, including the recording device. The female complainant was medically examined and seen to have suffered bruising and scratches to her face, bruising to her elbows, knees, abrasions to her forearm, a skin tear on an ear, tenderness to the neck and shoulder. The male complainant suffered a haematoma and three superficial lacerations to the back of his head, a superficial laceration and an abrasion to the left side of his neck and an abrasion to the right side of his neck as well as a bruise to the left cheekbone. The injuries are not as serious as are sometimes seen in these Courts, but that does not detract from the violent and serious nature of your premeditated conduct.”
The sentencing judge observed that the conduct was aggravated having regard to the applicant’s prior convictions, which included:
(a)convictions in October 2000 for two breaches of a domestic violence order and for possession of a knife in a public place, which the applicant told a psychologist from whom a pre-sentence report was obtained arose out of the breakup of a short term relationship; and
(b)convictions in the District Court on 1 May 2009 of unlawful stalking with the use of violence, for which the applicant was sentenced to two and a half years’ imprisonment, together with convictions for deprivation of liberty and unlawful possession of a weapon (an air rifle) which was used to threaten the complainant. These offences also evolved out of the breakup of a relationship.
As the sentencing judge also observed, the applicant was therefore being sentenced for a third occasion on which he acted violently and inappropriately, involving the use of a weapon, in the breakup of a relationship.
The offending had a profound effect on the female complainant. The sentencing judge summarised it in this way:
“… your conduct initially completely debilitated this woman’s capacity to survive on a day-by-day basis. After some time, she has managed to get herself through steps and stages to the point of having still serious impacts from your offending and still ongoing impacts, both emotionally and financially. It is, I think, a fair summary to say that your conduct has altered the trajectory of her life in a deleterious manner forever.”
At the sentencing hearing, the applicant relied upon an expert report from a forensic psychologist, Dr Freeman, as well as what was described as “an impressive bundle of 15 character references”. As the sentencing judge said:
“[The references] wholeheartedly speak of a man who is devoted to those that he knows, to his community and to his profession. Tellingly, I think only one makes reference in an oblique way to your previous conviction from 2009. Nonetheless, the picture is of a man who is prepared to help others, who is dedicated to his business, of a family man who cares for his father. Tragically, I am told that your father has now passed while you have been held on remand. No doubt, that has caused you emotional upset. The references create a dichotomy of a good, hardworking, constructive member of the community on the one hand and yet, when one looks at the rest of the material, a man who simply cannot maturely deal with the breakup of a relationship.”
The report of Dr Freeman was dated 20 March 2024, and was prepared following an assessment of the applicant on 16 February 2024 which took place by video link while the applicant was in custody. Dr Freeman reported that the applicant’s interpretation of the events (giving rise to the offences) “was not entirely consistent with the complainant’s” – including because he “erroneously believe[ed] that the female complainant provided consent, when in fact, it was obtained through duress/fear”; but also noted that the applicant was able to express remorse and regret for his behaviour.
Dr Freeman summarised the information he had been provided about the applicant’s early life, family circumstances and relationship history. This information can only have come from the applicant. Dr Freeman records that the applicant “reported being raised in a somewhat precarious family environment marked by his father’s poor mental health and excessive use of discipline… Nevertheless, he denied being exposed to significant personal childhood abuse”. Dr Freeman also recorded that the applicant left the family home when aged 16, after completing grade 10, and that:
“He maintained a close relationship with his elderly father, but has been estranged from his mother for approximately 30 years and has not had any contact with his siblings for 15 years (which is due [in part] to reported financial disagreements). Rather, he reported providing ongoing care/support for his elderly father, who has recently passed away.”
The applicant’s strong work ethic and history was noted by Dr Freeman, including the fact that he had successfully operated his own concreting business for the past 25 years.
Dr Freeman was aware of the applicant’s prior criminal history, including the two convictions which similarly arose in the context of the “rupture” of prior relationships.
In terms of Dr Freeman’s clinical assessment, the report notes that the applicant has “no formal diagnosis” and that he denied experiencing any kind of mood disorder (such as depression or anxiety). Dr Freeman concluded:
“13.1[The applicant] is a 56 year old male who reportedly experienced a primarily stable childhood, although questions remain regarding the level of emotional development/bond with other family members. Nevertheless, he was provided with an opportunity to obtain an education and was quick to enter the workforce. He has since demonstrated a strong work ethic that resulted in some level of lifestyle stability. He has also experienced stable mental health. The defendant denied significant substance misuse, which also does not appear linked to the current offences. Nevertheless, his court outcomes history is reflective of some level of versatility (eg person/property), including breaching of domestic violence orders.
13.2It was not possible to determine with psychological certainty (within the current assessment) the origins of the offences, although a range of cumulative factors may be evident eg, sexual gratification, poor impulse control, various cognitive distortions, non-consequential thinking, etc.
13.3Nevertheless and encouragingly, he can articulate remorse and recognises that the relationship should (and has been) permanently dissolved.
13.4Given the preliminary nature of the assessment and associated complexity (eg possible existence of cognitive distortions), it was not possible to accurately determine risk of recidivism. What appears more evident is that ongoing treatment needs exist. Given his capacity to verbalise remorse (and lack of clear cognitive impairments such as limitations in intelligence), he appears capable of completing such interventions, which would likely have a beneficial effect upon the risk of recidivism.
13.5In regards to the future management of such risk, the defendant should participate in a specialised Corrective Services Sexual Offending Assessment, as he will likely meet the criteria for referral to the Getting Started Preparatory Sexual Offending Program (SOTP) followed by the Medium Intensity Sexual Offending Program (MISOP). That is, he needs to develop a greater level of insight into the origins of the offences, develop victim empathy as well as develop a robust Relapse Prevention Plan.
13.5Finally and respectfully, some level of community-based monitoring may prove to have a further salutary effect upon the risk of recidivism.”[4]
[4]Underlining added.
As already noted, at the sentencing hearing there were 15 character references tendered in support of the applicant. The writers of these references variously refer to having known the applicant for lengthy periods of time – many over 10 years, and some for more than 20 years. The references speak of the excellent reputation the applicant has in the rural area where he lives and works, of his good standing and involvement in the community, of his kindness and generosity to others, of his friendly and approachable nature, and of the deep personal bond that the authors of many of the references share with him.
After referring to the report of Dr Freeman, and the character references, the sentencing judge said:
“Dr Freeman said that he could find no clear abnormalities in your mental status examination factors. He declined to make a formal diagnosis on clinical assessment. As your Counsel said, broadly speaking, he does, however, indicate apparent remorse on your part and some degree of insight. Now, I say some because, as your Counsel quite correctly concedes, there are indicators of self-justification for your conduct, which are found by Dr Freeman and indeed are explained on the whole of the material.
You are a bright man. You have the capacity to learn. You have the capacity to undertake courses which are necessary to assist with ensuring there will be no repeat offending. Your work while held on remand shows your capacity for kindness. You are one of three effective carers in the unit in which you are held. You tend to the elderly prisoners, including their toileting. You assist with those who are functionally illiterate. This is part of the dichotomy that I have to deal with in finding an appropriate sentence to impose upon you in all of the circumstances. You will get credit for the fact that apart from – and I do not call this an aberration – but apart from those occasions where you suffer a relationship breakup, you are a good contributing member of society.”
The prosecutor submitted that the appropriate sentence was in the range of 10 to 14 years.[5] For the applicant, it was submitted a sentence in the range of nine to 11 years was appropriate. As the sentencing judge noted, on either of the submissions, he had to have regard to the effect of the impact of a serious violent offence declaration in determining the appropriate sentence as part of the overall considerations.
[5]Referring to R v M [2001] QCA 166; R v Cain [2010] QCA 373 at [52]; R v Utley [2017] QCA 94 and R v Wallace [2023] QCA 22.
The sentencing judge accepted that, before any amelioration for matters in the applicant’s favour, a sentence “well in excess of 10 years would be required”. His Honour went on to say that:
“The manner in which the legislature has determined that there is to be a mandatory declaration as to a serious violent offence [which arises where a sentence of 10 years or more is imposed] means that a deduction to recognise the matters in your favour can only occur by being reflected in the head sentence.”
The sentencing judge then addressed the submissions which had been made about the impact of a serious violent offence declaration, and the circumstances in which one might be appropriate.[6] In this regard, his Honour said:
“What I am required to do is to determine whether there are circumstances which aggravate the offence in a way which suggests that the protection of the public or adequate punishment requires you to serve 80 per cent of the head sentence before being able to apply for parole. The reference to protection of the public includes, in my view, a reference to certain aspects of the public. I consider that you represent an ongoing risk to any person that you form a relationship with. It is a feature that I must have regard to in reflecting the overall appropriate sentence.”
[6]Referring to this Court’s decision in R v Free; Ex parte Attorney-General of Queensland (2020) 4 QR 80 at [49]-[53] and R v Kampf [2021] QCA 47 at [49].
In structuring the sentence, the sentencing judge noted that all the offences occurred in the course of the one incident, and the overall criminality would be reflected in the penalty to be imposed on count 6 (the penile rape), with lesser concurrent terms to be imposed on the other counts.[7] In explaining the reasons for arriving at the sentences imposed, including 10 years’ imprisonment for count 6, the sentencing judge said:
“Bearing in mind the premeditated and calculated nature of your offending, that it was the culmination of a longer period of covert surveillance driven by a jealousy that cannot be justified, that you made some, albeit not at all successful, attempt to hide your offending, the impact on the complainant and recognising the matters in your favour, particularly the plea of guilty, which, I accept, was a timely one, given the discontinuance of charges by the prosecution, and [giving] particular weight to the fact that there is this dichotomy that I have spoken of in which you are otherwise a strong and helpful member of society, the sentences to be imposed are as follows…”
[7]An approach approved in R v Nagy [2004] 1 Qd R 63.
The first application for leave to adduce new evidence
Initially, in March 2024, the applicant applied for leave to appeal the sentence imposed on the grounds that the sentence was manifestly excessive and that the sentencing judge had made the specific error of failing to take into account his guilty plea and cooperation with the administration of justice.
The applicant engaged a new solicitor, Ms Robinson, in May 2024. Ms Robinson recommended to the applicant that he receive ongoing psychological counselling with a clinical psychologist, Ms Bardsley. The applicant did that. In August 2024, Ms Bardsley contacted the applicant’s solicitor and said that, having undertaken psychometric testing of the applicant she considered there were “diagnostic possibilities” that were not raised at the applicant’s sentence. In August 2024, Ms Robinson arranged for Dr Kovacevic, psychiatrist, to assess the applicant and provide a report. The examination took place on 23 August 2024, by video link, and a report was prepared by Dr Kovacevic on 20 September 2024.
In December 2024, the applicant filed an application for leave to adduce the evidence comprising the report of Dr Kovacevic and evidence from Ms Robinson, as to the explanation for why the psychiatric evidence was not led at first instance. The explanation, according to Ms Robinson’s affidavit, seems simply to be that no thought had previously been given to obtaining a report from a psychiatrist. The applicant had never previously engaged with a psychologist or a psychiatrist.
The report of Dr Kovacevic, dated 20 September 2024, records the documents that he was provided with prior to his examination of the applicant. The documents provided do not include the applicant’s criminal history, nor the 15 character references.
The applicant told Dr Kovacevic that he had been getting counselling with a psychologist for the past four months (that is, since his sentencing hearing) and that the psychologist had “arrived at the conclusion that he had autism level 1 to level 2 disorder, as well as possible attention deficit hyperactivity disorder (ADHD) and posttraumatic stress disorder (PTSD)”. The applicant reported to Dr Kovacevic that he was feeling chronically depressed, and experiencing considerable anxiety.
The applicant gave a substantially different report to Dr Kovacevic about his childhood, from that which he provided to Dr Freeman. According to Dr Kovacevic:
“[The applicant] was looking at his childhood as a possible origin of his psychological difficulties. He told me he had a horrible upbringing and was mistreated by his brother and sister. He was always in trouble and was persistently bullied and blamed by his siblings for everything. He was punched and physically harmed and not allowed to play with them. His father never listened to him and would open his mouth and force food down his throat when he declined to eat vegetables. Alternatively, he would get sent back to his room with no dinner. At other times, he was belted with a strap. Although not as abusive, his mother was similarly unsympathetic towards him.
[The applicant] told me that he had distanced himself from his family and had not spoken to anyone for about 20 years.”
Dr Kovacevic went on to say:
“When asked about some psychological behavioural traits that may have led the psychologist to diagnose him with the above-mentioned disorders, [the applicant] told me that he was highly strung, had poor social skills and found it difficult to communicate with people whilst looking them in the eye. He was also being sensitive to noise. All of these features in his view supported the possible diagnosis of an autism spectrum disorder. In addition to that, [the applicant] described himself as being impulsive, which had caused him in the past to act irresponsibly and aggressively without thinking or considering the consequences of his actions. He said he did things that he later regretted, indicating a pattern of lifestyle impulsivity and deficits in judgement.
Since he had distanced himself from his family, [the applicant] was fairly isolated. He did not have many friends, with the exception of his friend [A] who has been his main support.”[8]
[8]Underlining added.
Dr Kovacevic said the applicant’s “reported problems” – namely, communication difficulties, poor social skills, prominent anxiety and sensitivity to noise and other stimuli – were “suggestive of the possibility of a relatively mild autism spectrum disorder”. Dr Kovacevic said the applicant’s reported difficulties with controlling impulses, cognitive problems, mind racing and concentration difficulties “could indicate a possibility of undiagnosed ADHD, however this is only a tentative suggestion, as the diagnosis of an adult ADHD requires a more thorough methodology…”. The doctor said the applicant’s report of childhood abuse and trauma “indicate a likely possibility of at least an unspecified trauma-related disorder, if not a full-blown posttraumatic stress disorder”. Dr Kovacevic ultimately agreed with Dr Freeman that the applicant “would be a reasonably good candidate for therapeutic interventions, given his level of insight, remorse for his behaviour and preserved intellectual functioning”.
In answer to some of the specific questions put to him, Dr Kovacevic said:[9]
[9]Underlining added.
(a)The conditions just mentioned (which he identified as no more than “possible”) “are likely to have impact[ed] on [the applicant’s] thinking processes and impulse control”, and he also appears to be an anxious individual with difficulties controlling anger, particularly when stressed and emotionally overwhelmed.
(b)The applicant “has personality vulnerabilities borne out of his history of abuse and bullying, which increases his propensity for aggressive reactions with impaired ability to consider and foresee the consequences”. It was noted that Dr Freeman had also mentioned the applicant’s difficulty in calibrating his responses in stressful and challenging situations.
(c)After being referred to the Victorian Court of Appeal’s decision in R v Verdins (2007) 16 VR 269, and the ways in mental impairment falling short of unsoundness of mind may be relevant to sentencing, Dr Kovacevic said:
“[The applicant’s] mental impairment falls short of unsoundness of mind; however, his developmental issues and trauma related disorder have acted in my opinion to impair to some degree [the applicant’s] capacity to control his actions and foresee the consequences, therefore they can be taken into consideration at the time of his sentencing as mitigating factors. …”
(d)As to whether there is “a nexus between any diagnosed condition … and his offending”, Dr Kovacevic said:
“[The applicant’s] state of mind is reflective of underlying emotional dysregulation, anger and impulse control issues, and these deficits played some role in his offending. Therefore there is a nexus between [the applicant’s] neuro-developmental conditions and his trauma related disorder and his offending …”.
The application came on for hearing on 4 February 2025. Issues were raised by the Court on that occasion about the inconsistency between what the applicant reported to Dr Freeman about his childhood, and what he reported to Dr Kovacevic; as well as the inconsistency between reports to Dr Kovacevic of social isolation and the 15 character references relied upon at the sentencing hearing, and the absence of any explanation from the applicant about those matters. The hearing was adjourned in order to give the applicant time to place further evidence before the Court.
The second application for leave to adduce further evidence
In April 2025, the applicant filed a further application for leave to adduce evidence, on this occasion including evidence from himself, the psychologist (Ms Bardsley) and addendum reports from Dr Kovacevic.
In her report dated 9 April 2025, Ms Bardsley noted that she had been approached by the applicant’s solicitor in April 2024, to provide psychological therapy to him. Ms Bardsley saw the applicant for eight sessions, via video conference, from May 2024 to February 2025. Ms Bardsley outlines in her report the various psychometric tests she administered. Based on her interviews with him, that testing, his reported symptomatology, the mental state examination and current level of function, Ms Bardsley expressed an opinion as to a provisional diagnosis of PTSD and autism spectrum disorder, without accompanying intellectual or language impairment. She alludes to ADHD as a possibility. Ms Bardsley says these mental health conditions “may have played a contributing factor in his offending pathway”. Ms Bardsley outlines the difficulties the applicant initially experienced, engaging in psychological treatment with her, but noted that he became less defensive and more open as their sessions developed. She outlines in her report the details provided to her by the applicant of his dysfunctional and abusive family upbringing. Ms Bardsley refers to the applicant developing more self-awareness as a result of their therapeutic sessions, which she says “indicates a willingness to confront the deeper emotional issues behind his actions, which is essential for addressing the root causes of his criminal behaviour”. Ms Bardsley referred to the applicant undertaking a domestic violence therapeutic program whilst in custody and that:
“By the conclusion of the modules, [the applicant] took full responsibility for his abusive acts of sexual and domestic violence, and identified how his acts of violence at the time were an attempt to control his victim. He acknowledged at no time had he considered the consequences of his behaviour, and admitted his actions were impulsive yet calculating. He displayed victim empathy and was able to articulate the ongoing trauma he had caused the victims of his offences.”
In his affidavit filed on 7 April 2025, the applicant refers to the difficulties that he encountered during the assessment by Dr Freeman, both due to technical functionality of the video link, but also his own reluctance to “open up” to Dr Freeman, which he can now identify following his treatment with Ms Bardsley. The applicant identifies this feeling of disconnection, both physical and emotional, as the explanation for the differences between what the applicant reported to Dr Freeman, and what he reported to Ms Bardsley and Dr Kovacevic, about his childhood and family circumstances. The applicant also acknowledges, at [24], that he was conscious that what he said to Dr Freeman “would be relayed back to the Court [and] would affect my chances of release” and so was careful in case his words were taken out of context.
To explain another apparent inconsistency between Dr Freeman’s and Dr Kovacevic’s reports, as to the applicant suffering depression and anxiety, the applicant says in his affidavit that his feelings of depression and anxiety primarily arose after being sentenced.
In relation to the other significant difference, concerning reports of social isolation, the applicant says this in [47]-[52] of his affidavit:
“I am aware that Dr Freeman noted that I ‘reported being a social individual with approximately 15 close friends’, whereas Dr Kovacevic reported that I was ‘fairly isolated [and] did not have many friends, with the exception of his female friend [A] who has been his main support’. I also am aware that 15 character references were tendered in my sentence hearing. I accept that what I told Dr Freeman about my social network, and what the references attest to, is inconsistent with what I told Dr Kovacevic.
I have been concreting for 35 years, since I was 17 years old working for $30 a day. I have had my own business for 25 years. I had 5 concreters working underneath me paying them $500 each a day for 6 hours. 90% of my work was word of mouth. I am a very hard worker with a strong work ethic. I enjoy running businesses and working. I have thrown myself completely into working my whole life and I have done well financially and built an outstanding reputation for myself in the community. My business was extremely successful.
I won the Top Tradie Award for the Lockyer Valley Somerset Region prior to my incarceration. I won 36% of the votes and made the front cover of the local paper. I was very successful, popular and well respected by my peers and colleagues in the wider community prior to my incarceration. I used to do work for [name], the local MP from the LNP Party.
I used to sponsor the local junior rugby league footy club, I was a major sponsor of the … Club, I was the major sponsor of the … Club. I would pay for that every year.
My explanation for this inconsistency is that, at the time of the assessment by Dr Freeman, my social network was broader and more engaged than it was at the time of Dr Kovacevic’s assessment. I suspect that being made aware of the full extent of my offending (as part of the reference process) may have contributed to this, but also, my ongoing remand made it practically more difficult to have ongoing contact with friends. This too may have played a role.
More centrally, and as expressed to Dr Kovacevic, the person I was (and remain) closest to is my partner, [A]. While I had ‘friends’ in the broader sense (as demonstrated by the references provided on my behalf), the only person I felt truly connected with, and able to confide in, was [A]. In this sense and considering that I don’t have contact with my family and have not for many years, when speaking to Dr Kovacevic I did feel ‘isolated’ as [A] was the only relationship I have which involved a greater level of depth allowing me to lean on her for support. This isolation is more pronounced in custody where I am, at times, emotional, anxious and sleep poorly. Since the interview with Dr Freeman, [A] is now the only contact I have. I understand it is difficult for my friends with their busy lives to take the time to remain in contact with me when I am incarcerated especially as my friends are all successful business owners and extremely busy running their companies. I now have no other contact with anyone on the outside except [A], my solicitor and psychologist.”
The applicant’s solicitor provided Dr Kovacevic with both the report of Ms Bardsley and the affidavit of the applicant and asked him undertake a further assessment of the applicant (if required), and then advise whether there were any changes to his earlier provided opinion. Dr Kovacevic provided his first addendum report on 14 April 2025. He did not undertake any further assessment of the applicant. Dr Kovacevic said that he maintained the opinions he had previously expressed, and did not consider there were any discrepancies, or incongruity, between his opinions and the findings of Ms Bardsley. In particular, he maintained his opinion regarding the applicant’s “personality vulnerabilities potentially increasing his propensity for aggressive and impulsive behaviours”.
The applicant’s solicitor wrote again to Dr Kovacevic, after receiving that addendum report, and discussing it with the applicant’s junior counsel. On this occasion, the applicant’s solicitor conveyed a request from counsel for Dr Kovacevic to specifically address critiques made of his (first) report by the Crown (in its submissions in this proceeding). In response, Dr Kovacevic provided a further addendum report, dated 16 April 2025, which, relevantly, includes the following opinion:
“1.Impact of the condition on [the applicant’s] ability to control his actions and foresee his consequences – question of impulsivity.
With regard to the nexus between the psychiatric conditions and the offending behaviour, the degree of impact of the conditions was significant, in my opinion, in other words more than coincidental or trivial.
In this context, a number of important personality traits have been highlighted in psychological and medical examinations:
· Fear of rejection and abandonment
· Attempts to control others to compensate for underlying low self-worth, insecurity in relationships etc
· Poor emotional regulation
· Poor emotional problem solving
· Poor ability to tolerate insults to self-esteem
· Deficits in consequential thinking
· Disregard for negative consequences, etc
[The applicant’s] personality assessment has revealed traits of some underlying personality pathology, including impulsivity, relationship instability, problems with affect regulation, constricted expression of emotions etc. Such traits are conducive to sudden violent outbursts.
Difficulty controlling impulses is also one of the key features of attention deficit hyperactivity disorder (ADHD), he has been provisionally diagnosed with.
To me, [the applicant] described a lifestyle of impulsivity and acting aggressively in the past without considering the consequences of his actions.
Dr Freeman in his report referenced ‘poor impulse control, cognitive distortions and non-consequential thinking’. Dr Freeman has also spoken about [the applicant’s] ‘difficulty in calibrating his responses in stressful and challenging situations’.”[10]
[10]Underlining added.
The relevant principles that apply where new evidence is sought to be relied on
The evidence the applicant wishes to adduce is new evidence, in the sense that it could have been available prior to the sentence (had thought been given to a psychiatric assessment) and “might have sounded on what was an accurate understanding of the applicant’s mental health condition at [the] time of sentence”.[11]
[11]R v Shabanzadeh [2025] QCA 92 at [40].
The relevant principles that apply, on an application for leave to adduce further evidence on an application for leave to appeal against sentence, were discussed in the recent decision of this Court in R v Shabanzadeh [2025] QCA 92 at [39]-[43].
A person may only appeal against the sentence passed on their conviction with the leave of the Court (s 668D(1)(c)). Section 668E(3) of the Criminal Code then provides that:
“On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”[12]
[12]Underlining added.
In Betts v The Queen (2016) 258 CLR 420 at [10], the High Court (French CJ, Kiefel, Bell, Gageler and Gordon JJ) said, in respect of the equivalent provision, s 6(3) of the Criminal Appeal Act 1912 (NSW):
“Notwithstanding its wide terms, it is well settled that the Court of Criminal Appeal’s power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge’s reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.”[13]
[13]References omitted; underlining added.
In Queensland, assuming the grant of leave to appeal, the Court has a discretionary power, under s 671B(1)(d) of the Criminal Code, to receive further evidence. There is an express qualification contained in s 671B(2) – namely that “in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given” at first instance.[14]
[14]R v Shabanzadeh [2025] QCA 92 at [39], referring to R v Hughes [2004] 1 Qd R 541 at [3] per McPherson JA.
The exercise of the discretion depends on whether it is “necessary or expedient in the interests of justice” to receive the evidence.[15] But I would not describe the discretion as unfettered.[16] What must be shown in order to persuade the Court to exercise the discretion to receive the evidence is that, if the new evidence were not received, there would be a miscarriage of justice.[17] That may be demonstrated where it is established that, if the new evidence were admitted, “some other [less severe] sentence … is warranted in law and should have been passed”.[18]
[15]See s 671B(1) of the Criminal Code and R v Maniadis [1997] 1 Qd R 593 at 594 per Fitzgerald P.
[16]Cf R v Morrow [2006] QCA 305 at p 8.
[17]R v Maniadis [1997] 1 Qd R 593 at 596-597 per Davies JA and Helman J. See also Betts v The Queen (2016) 258 CLR 420 at [10].
[18]See s 668E(3), read with s 671B(2) of the Criminal Code. See also R v Hughes [2003] QCA 460; [2004] 1 Qd R 541 at [4] per McPherson JA.
The principle of finality in litigation, and the wording of s 668E(3) of the Code, requires that the assessment of error in an appeal against sentence be based on the facts which existed at the time of sentence.[19] Accordingly, for new evidence to be admitted, it must “show what the state of affairs was at the time the sentence was imposed”[20], or tend to “prove a fact existing when the sentence was imposed”.[21] Otherwise, the facts would not be relevant to the question of what sentence “should have been passed”.[22]
[19]R v Maniadis [1997] 1 Qd R 593 at 597; R v Hughes [2004] 1 Qd R 541 at [14]-[16] per McMurdo J (McPherson JA and Holmes J agreeing). See also Betts v The Queen (2016) 258 CLR 420 at [2] and [14].
[20]R v Maniadis [1997] 1 Qd R 593 at 597.
[21]R v Hughes [2004] 1 Qd R 541 at [16].
[22]R v Hughes [2004] 1 Qd R 541 at [16]; s 668E(3) of the Code.
Separately, where the Court on an appeal has found error for other reasons, it may receive evidence of the offender’s progress towards rehabilitation in the period since the sentence hearing.[23] But that is a different question.
[23]Betts v The Queen (2016) 258 CLR 420 at [11]; see also Pajares v Commissioner of Police [2025] QCA 9.
The power to receive new evidence is not exercised lightly; indeed the cases in which the power will be exercised are said to be “exceptional”[24] and “very rare”.[25] As was said in R v Hughes [2004] 1 Qd R 541 at [15]:
“Accepting that there may be such exceptional cases, they will be very rare, for a number of reasons. The reasons include the clear need for finality in litigation, the desirability of having the evidence adduced before the primary tribunal of fact and the existence of other remedies in otherwise deserving cases, such as the grant of an exceptional circumstances parole order under s 133 of the Corrective Services Act 2000. A sentencing hearing is not a rehearsal for another sentence hearing in this Court.”
[24]Betts v The Queen (2016) 258 CLR 420 at [14].
[25]R v Hughes [2004] 1 Qd R 541 at [15].
In R v Shabanzadeh, the Court referred to a recent decision of the Victorian Court of Appeal in Alessawi and Snowball v R [2025] VSCA 23. That case bears remarkable similarities to the present one. One of the applicants, Snowball, sought leave to appeal the sentence imposed on him, on the basis that he:
“should be resentenced by this Court in light of fresh evidence that he suffers from a major neurocognitive disorder in the form of a traumatic brain injury that was present but not fully understood or diagnosed at sentence. The Applicant’s permanent disability enlivens the principles in R v Verdins.[26]”[27]
[26](2007) 16 VR 269; [2007] VSCA 102.
[27]Alessawi and Snowball v R [2025] VSCA 23 at [7].
That applicant had relied on the evidence of a consultant psychologist at the sentencing hearing, who said he was suffering from complex PTSD and substance use disorder at the time of the offending, which would have impacted his ability to apply sound judgment and increased his impulsivity and propensity for reckless behaviour. Although the psychologist recommended a neuropsychological report be obtained, that was not done prior to the sentence. Following the sentence, and at the instigation of new legal representatives, the applicant was assessed by a clinical neuropsychologist who diagnosed brain injury resulting in mild to moderate reduction in overall intelligence.
The Court of Appeal (Emerton P, Taylor JA and Kidd AJA) in Alessawi and Snowball’s case articulated the test at [104] as follows:
“To be accepted the new evidence must demonstrate ‘the true significance of facts in existence at the time of the sentence’. The sentencing discretion will be reopened if the Court concludes that the new evidence ‘throws significant new light on the pre-existing facts’. The question becomes whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.”[28]
[28]References omitted. This was referred to in R v Shabanzadeh at [25].
The Court found that the neuropsychologist’s report did not meet this test, noting that the neuropsychologist’s general conclusions were the same as those of the psychologist whose report was before the sentencing judge, and whose conclusions were accepted and acted upon by the judge. There was no miscarriage of justice.
In R v Shabanzadeh at [43] this Court recorded that:
“Senior counsel for the applicant submitted that the Victorian approach to the same question might be regarded as more prescriptive. Whether that is so and, if it is, whether this Court should adopt a more prescriptive approach is unnecessary presently to consider. Our preliminary view, however, is that the constraints on adducing further evidence expressed in the passage from Alessawi quoted at [25] above [the passage is set out at [49] above] are entirely consistent with first principle, as explained in Maniadis and in Hughes. In any event, in the present case the evidence sought to be adduced does not approach the level which it would need to approach in order to be received.”
The same senior counsel, for the applicant in the present case, similarly sought to distinguish the Victorian approach, submitting that the approach which has to date been taken in Queensland is broader than in other jurisdictions.
I endorse and adopt the preliminary view expressed by the Court in R v Shabanzadeh at [43]. I agree that the constraints expressed in the Victorian case are consistent with the principles established in previous decisions of this Court, and are apt in any event. The requirement for “significance” inherent within the test as articulated in Alessawi and Snowball’s case reflects the high bar required to be met before new evidence may be permitted to be adduced on an application for leave to appeal against sentence, for all the reasons already identified. All the more so, where no House v The King error in the exercise of the sentencing discretion has otherwise been established.[29] It is not any evidence, even if it tends to prove a fact which existed at the time of the sentence, and even if it tends to show that another penalty could have been imposed, that may be permitted to be adduced. It must be evidence of a kind which, if not permitted to be adduced, leads the appellate court to conclude there will be a miscarriage of justice if the sentence is left to stand. The miscarriage of justice with which this test is concerned is the outcome, as opposed to the process. If the appellate court is not persuaded that the new evidence throws significant new light on the facts as they existed at the time of sentence, such as to show that a less severe sentence was warranted in law and should have been passed, then it ought not be admitted.
[29]Cf Betts v The Queen, where such an error had been shown, and the question was whether, in the resentencing process, the appellate court ought to exercise the discretion to receive new evidence, not before the sentencing court at first instance.
Applying the test in this case
I am not persuaded that the new evidence sought to be relied upon by the applicant meets this test.
For the purposes of determining the applications, I would accept, favourably to the applicant, that he may well have had a difficult childhood, as he has reported to Ms Bardsley and Dr Kovacevic. According to his own evidence, this did not affect the applicant’s ability to conduct a very successful business over many years and become a “popular and well-respected” person in the wider community. I have difficulty accepting the factual basis for any “provisional” diagnosis (of autism) arising from social isolation. This is entirely inconsistent with the character references provided in support of the applicant (and which were not provided to Dr Kovacevic, even after the adjournment). It is also inconsistent with the applicant’s own evidence which makes it clear that he did not, prior to his offending, experience any such isolation. The isolation he describes is post-sentence. The feelings of depression and anxiety also arose post-sentence, which one might find unsurprising.
But even apart from those matters, Dr Kovacevic does no more than suggest that various of the applicant’s personality traits (or vulnerabilities) are suggestive of, or indicate, the possibility of mental health conditions – mild autism, ADHD or an unspecified trauma-related disorder. The particular traits which are identified as having played some role in his offending are emotional dysregulation, anger and impulse control issues. Each of those things was identified by Dr Freeman as possible explanations for the offending – as Dr Kovacevic himself observed, in his second addendum report. Dr Kovacevic, like Dr Freeman, also identified that the applicant appeared to be a good candidate for therapeutic intervention. That “pathway to rehabilitation” was a matter already before the sentencing judge. The evidence from the psychologist tends to show Dr Freeman and Dr Kovacevic were right about this, given the increased insight and understanding which Ms Bardsley says the applicant has developed, post-sentence, through his counselling sessions with her.
Those matters do not, in my view, throw significant new light on the facts as they existed at the time of sentence, or demonstrate the true significance of the facts at that time. At best, the material provides some additional support for the hypothesis posed by Dr Freeman, in paragraph 13.2 of his report, as to the origins of the offences, and reinforces matters of fact and opinion that were before the sentencing judge at first instance in any event. Far from explaining the “dichotomy” already identified by the sentencing judge, the proposed new material only serves to emphasise it.
Further, I can see no basis on which to conclude that any less severe penalty “should have been passed”, even if this material were before the sentencing judge.
In considering the comparable authorities relied upon, it is important to take account of the enactment, in 2016, of s 9(10A) of the Penalties and Sentences Act, following which a sentencing court is required to treat the fact that an offence is a domestic violence offence as an aggravating factor, unless the court considers that is not reasonable because of exceptional circumstances. Where, as here, that provision applies, the comparability of sentences imposed prior to 2016 should be considered with some care. Likewise, dated decisions may lack contemporary relevance, having regard to the development over time of the community’s greater understanding of the harm caused by certain offences.[30]
[30]See, by analogy, R v Free; Ex parte Attorney-General [2020] QCA 58; (2020) 4 QR 80 at [66] and [69]; and R v VN [2023] QCA 220 at [32].
The case of R v M [2001] QCA 166, in which a sentence of nine years’ imprisonment for similarly atrocious violent and sexual offending by a man against his former partner was imposed, is in this category.
More recent is the decision of this Court in R v Utley [2017] QCA 94, in which a man in his early 40s, with no criminal history, was convicted on his pleas of guilty and sentenced to 10 years’ imprisonment for the rape of a woman, in her home which he had unlawfully entered, under threat from a makeshift weapon being a broken bottle. His overall offending also included an earlier assault of another woman. His application for leave to appeal against the sentence was refused; the Court observing that the aggravating features of that case would have supported the imposition of a higher penalty.
The offending by the applicant in the present case could readily have been punished by a higher penalty than was imposed in Utley, having regard to the overall circumstances in which it was committed, and the applicant’s criminal history. That he was ultimately sentenced to no more than 10 years demonstrates the substantial benefit given to him, both for his guilty plea and the “dichotomy” in terms of his character identified by the sentencing judge.
The case of R v Walsh [2008] QCA 391, which was also referred to below, concerned an application for leave to appeal against a sentence of 10 years imposed on a young man (19 at the time he offended) who raped a young woman after forcibly making her leave a party they were attending, dragging her to his house, assaulting her by breaking her jaw, detaining her for six hours and then raping her. He was convicted following a trial. His application for leave to appeal the sentence, on the grounds of manifest excess, was disposed of as unsustainable. At [19], Keane JA (then of this Court), with whom de Jersey CJ and White AJA agreed, referred to a number of earlier decisions and said that they:
“show that a range of 10 to 14 years imprisonment is appropriate for a persistent and prolonged offence of rape where serious, but not extreme, violence has been used by the offender upon the victim. A sentence in this range, ie in excess of 10 years imprisonment, carries with it the consequence that 80 per cent of that term must be served in actual custody.”[31]
[31]References omitted.
Once again, it may be noted that this decision pre-dates the amendment to s 9(10A). However, even accepting that it remains an apt indication of the appropriate range,[32] the factors that might support imposition of a penalty at the lower end of it would include youth, lack of criminal history, disadvantaged background and genuine remorse.[33]
[32]See, for example, R v Benjamin [2012] QCA 188 at [62]-[63], referring to R v Flew [2008] QCA 290, and also at [75]-[77] and [80]; see also R v VN [2023] QCA 220 at [32].
[33]See, for example, R v Wallace [2023] QCA 22.
The applicant does not have the benefit of youth and has a relevant criminal history. At the time of sentence, his expressions of remorse, and insight, were somewhat qualified by the acknowledged “indicators of self-justification for his conduct”, but he was given the benefit of his plea of guilty. It can be seen from the psychologist’s report that both his remorse and his insight may well have developed since the sentence, with the benefit of psychological therapy and a domestic violence program. That is not a matter that can properly affect the sentence that “should have been imposed” and is appropriately a matter for the parole authorities. The applicant’s now contended difficult childhood would not support a principled reduction in the sentence to any extent. On the other hand, the particular circumstances of the applicant’s offending – including that it was premeditated and involved considerable planning, was accompanied by violence and threats, while armed, by a mature man with a history of violence in the context of relationship breakups – would warrant a penalty at the higher end of the range, as correctly observed by the sentencing judge who indicated that a sentence “well in excess of 10 years would be required” before any mitigating factors were taken into account.
The sentence of 10 years imposed on the applicant gave him the substantial benefit of all that could be said in his favour; arguably a greater benefit than was necessarily called for. In the circumstances, I can see no basis to conclude that, if the new evidence were permitted to be relied upon, it could be shown that another, less severe sentence, is “warranted in law and should have been passed”.
There is no miscarriage of justice if leave is refused to adduce the further evidence.
I would therefore order:
1. The applications for leave to adduce further evidence are refused.
2. The application for leave to appeal against sentence is refused.
BOND JA: I agree with the reasons for judgment of Bowskill CJ and with the orders proposed by her Honour.
CALLAGHAN J: I agree with Bowskill CJ’s conclusion that the functional question in this application is whether, if the new evidence were not received, there would be a miscarriage of justice.
I also agree that the miscarriage of justice with which this test is concerned is the outcome, not the process. If the new evidence was relied upon, it would not to my mind have shown that a less severe sentence should have been passed.
It could not have done that for a number of reasons, and in particular those identified by the Chief Justice in [55] – [57]. As it stands, there is an unsatisfactory aspect to the sentence imposed. The applicant will be supervised, after his release, for a maximum of two years. In the case of someone who can offend so seriously at such lengthy intervals,[34] it might be thought that, in the interests of community protection, a longer period of supervision was necessary.[35]
[34]As discussed in [5] – [7] above.
[35]See Queensland Sentencing Advisory Council, The '80 per cent Rule': The Serious Violent Offences Scheme in the Penalties and Sentences Act 1992 (Qld): Final Report (Report, May 2022) at pp 131, 136 and 139; See also R v Rajek [2024] QSC 63 at [21] – [31].
In the circumstances, however, the learned sentencing judge did what he could with the inadequate tools he had. The application should be dismissed.