Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

R v Downs[2023] QCA 223



R v Downs [2023] QCA 223




DOWNS, Ashley James



CA No 197 of 2023

DC No 543 of 2022


Court of Appeal


Sentence Application


District Court at Southport – Date of Sentence 13 October 2023 (Rosengren DCJ)


17 November 2023




13 November 2023


Mullins P and Morrison and Bond JJA


Application for leave to appeal against sentence refused.


CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 10 counts of sexual assault and four counts of common assault – where the applicant was sentenced to a head sentence of 18 months’ imprisonment with all sentences to be served concurrently – where all sentences are to be suspended after serving five months – where the applicant contends that no period of actual imprisonment should have been imposed – where the applicant contends that he should have been convicted, with no further punishment, or fined for the counts of common assault – where the primary judge considered general deterrence as the paramount sentencing consideration – where the applicant was in a position of authority over the complainants – where the primary judge found the applicant knew his conduct was wrong, but persisted nonetheless – whether the sentence was manifestly excessive

R v Abdullah [2023] QCA 189, considered

R v Al Aiach [2007] 1 Qd R 270; [2006] QCA 157, considered

R v Eaton [2019] QCA 147, cited


J R Jones and G F Perry for the applicant

S L Dennis for the respondent


Potts Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MULLINS P:  I agree with Morrison JA.
  2. [2]
    MORRISON JA:  The applicant pleaded guilty to 10 counts of sexual assault and four counts of common assault.  The offences of sexual assault carried a maximum penalty of 10 years imprisonment, whilst the common assault offences carried a maximum of three years imprisonment.
  3. [3]
    The counts related to eight young women who were working in Domino’s Pizza stores where the applicant was the Manager.  The first two complainants were assaulted in 2007 to 2008.  The other six were assaulted in 2017 to 2019.  All of the complainants were aged between 15 and 17 years at the time of the offending.  The applicant was 25 to 26 years old for the first two complainants in time, and 35 to 37 years for the other six.
  4. [4]
    The applicant was sentenced to the following terms of imprisonment:
    1. on counts 1, 3, 4 and 11: 18 months, suspended after serving five months;
    2. on counts 2, 5, 10, 12, 13 and 14: 12 months, suspended after serving five months; and
    3. on counts 6-9 (common assault): four months.
  5. [5]
    All terms were to be served concurrently.  The operational period for the suspension was two years.
  6. [6]
    The applicant seeks leave to challenge the sentences on the basis that they are manifestly excessive.  However, the challenge is limited to:
    1. the requirement to serve any period of actual imprisonment; and
    2. the imposition of a term of imprisonment for the common assault counts (counts 6-9).

The background facts

  1. [7]
    The applicant was the manager at a pizza store. Each of the complainants were young women who worked at the store.  An agreed schedule of facts revealed the circumstances of the offending.

Count 1 – sexual assault - complainant A

  1. [8]
    In 2007/2008 the complainant was working with the applicant and another workerShe was standing at the work bench and the applicant walked up behind her and unclipped her bra.  The applicant placed both his hands on the front of her breasts and squeezed themThe applicant laughed and said words to the effect of it being a “hand bra”.  The complainant turned to stop the applicant touching her breasts.

Count 2-4 – sexual assault - complainant B

  1. [9]
    In 2007 or 2008, the complainant was standing at some equipment in the store.  The applicant walked past her, slapped her on the bottom and then kept walking. (Count 2).
  2. [10]
    In 2008, on a Wednesday night the applicant was teaching the complainant how to drive a manual car using the store’s car.  They had just completed a delivery of pizza and the applicant leaned over and grabbed one of the complainant’s breasts.  The applicant commented “Look …, they are growing” as he squeezed her breast.  The applicant then squeezed her other breast and said “that one is growing too”. (Count 3).  The complainant did not say anything in response to the applicant grabbing her breasts.
  3. [11]
    In 2008, the complainant was working at the store on a lunch shift.  She was sitting on the bench with two other colleagues.  The applicant walked over to them and started to massage her shoulders and neck.  The applicant moved his hands down her back and spine.  The applicant then moved his hands around and touched the sides of her breasts.  The applicant’s thumbs massaged her back while his fingers wrapped around the side of her breasts.  While the applicant did this he and the complainant had a normal conversation.  The applicant stopped after a few minutes. (Count 4).
  4. [12]
    On 7 July 2021, the complainant reported the matter to police.

Count 5 – sexual assault – complainant C

  1. [13]
    Between 7 July 2017 and 9 July 2018 the complainant was working at the store with the applicant.  The applicant walked past her and pressed his body against her back as he walked past. (Count 5).  In July 2021 the complainant reported the matter to police.

Count 6-8 – common assault – complainant D

  1. [14]
    Between 25 March 2017 and 27 February 2018, the complainant and the applicant were working a day shift together.  They were standing at a bench and the applicant punched the complainant in her breast.  The applicant said, “I can tell you’re wearing a push up bra”. (Count 6).  The complainant told him to “fuck off” and asked how he could tell.  He responded that he could tell from the way they felt and were sitting up.  The complainant did not respond to him.
  2. [15]
    Between 25 February 2018 and 27 February 2019, the complainant was working a day shift with the applicant.  She was standing at a bench and had put the wrong sauce on a pizza.  The applicant walked over to her and whipped her on the bottom with an apron. (Count 7).  She responded, “Ouch, fuck off”, and the applicant replied, “toughen up princess”.
  3. [16]
    On or about 4 April 2019 the complainant was working with the applicant.  She was washing her hands at the sink.  The applicant approached her and whipped her on the bottom with an apron. (Count 8).  She got upset with the applicant and told him she was going to tell her boyfriend.
  4. [17]
    The boyfriend picked her up from work and later that day sent the applicant a message telling him to stop “slapping [her] ass”, and that if he did it again then the boyfriend would make a complaint to head office.  The applicant responded, “That’s fair enough. I apologise to you and [the complainant]”.
  5. [18]
    In July 2021 the complainant reported the matter to police.

Count 9- common assault; Count 10 – sexual assault – complainant E

  1. [19]
    Between 1 June 2018 and 31 December 2019, the complainant was working with the applicant.  She was standing talking to the applicant when the applicant smacked her on the bottom. (Count 9).
  2. [20]
    Between 1 June 2018 and 31 December 2019, the complainant was working with the applicant.  The applicant leaned over to grab an ingredient to put on the pizzas.  The applicant grazed his hand over the top of her breasts and leaned close to her. (Count 10).
  3. [21]
    In July 2021, the complainant reported the matter to police.

Counts 11 and 12 – sexual assault - complainant F

  1. [22]
    In early 2019 the complainant was working with the applicant.  The applicant was teaching her how to sauce the pizza.  The applicant stood behind her in a bear-type hug, held the sauce spoon with her and swirled it over the pizza.  While the applicant did this, he placed his other hand on her bottom, moved it up to the side of her breast and rested his hand there. (Count 11).  She felt uncomfortable but did not say anything to the applicant.
  2. [23]
    In late 2019, the complainant and the applicant were both working at the store.  Another team member yelled out that they needed ranch sauce.  The applicant and the complainant both ran to the cold room racing for the sauce.  When they got into the cold room the applicant started to tickle her and she dropped to the ground.  The applicant leaned over her and grazed both her breasts with his hands, and picked her up off the floor. (Count 12).  She screamed loudly and the applicant stopped.  She got up and walked out of the room.
  3. [24]
    In July 2021, the complainant reported the matter to police.

Count 13 - sexual assault – complainant G

  1. [25]
    In late 2019, the complainant was working with the applicant.  Her pants zipper broke and she asked the applicant for new pants.  The applicant asked why and said “you have great legs”.  The applicant told her that he had some shorts in his car that might fit her.  She walked out to the applicant’s car with him.  The applicant pulled out some shorts from his boot and handed them to her.  As he handed them over he slowly and deliberately brushed the back of his hand across her breasts and said “oh sorry”.
  2. [26]
    In July 2021, the complainant reported the matter to police.

Count 14 - sexual assault- complainant H

  1. [27]
    Towards the end of 2019 the complainant was working a Friday night at the store.  The applicant was cutting the pizzas and the complainant was on the front counter.  She went to take something out of the oven and the applicant jumped back and pushed his bottom into her stomach.  She froze and stared at the applicant.  The applicant said “I’m kidding, I’m kidding. I’m only joking shorty.”
  2. [28]
    In July 2021, the complainant reported the matter to police.

Detection and Arrest

  1. [29]
    In March 2020, complainant B took over as manager at the Coomera East store and the applicant moved to another location.  Complainant B worked with complainants F, G and H, and disclosed to them that the applicant had touched her inappropriately.  In December 2020, complainant B made a complaint to Dominos industrial relations.  Around that time complainants F and G also made complaints to Dominos industrial relations regarding the applicant’s conduct.  They subsequently reported the matter to police.
  2. [30]
    On 18 July 2021, complainant B participated in a pre-text phone call with the applicant.  During the call complainant B told the applicant that it was not okay how he grabbed her breasts when he was teaching her to driveThe applicant told her he was just mucking around, he apologised that she felt that way and said he was just trying to be fun.  He told her he understood that he took it too far and that it was wrong.
  3. [31]
    On 20 November 2021, the applicant voluntarily attended the Coomera Police Station.  He declined to participate in an interview and was formally charged and released on bail.

The approach to sentencing

  1. [32]
    The learned sentencing judge set out the facts of the offending conduct, and noted the following matters in her Honour’s sentencing remarks:
    1. the early guilty pleas and their utility both to the State and the victims;
    2. that the applicant was sorry for the offending;
    3. that the applicant had started to see a psychologist in August 2023; the applicant told the psychologist that his conduct had been “driven by a desire to cultivate a fun workplace”; further, that he did not realise the impact of his actions until being contacted by the boyfriend of complainant D, and when the applicant had been pulled up by his line manager; her Honour said she treated that explanation “with caution, because of the way that you have offended against each of these girls when no one else was there”;
    4. the applicant’s age (41) and the lack of any criminal history;
    5. that the applicant persisted in the conduct in the face of known objection to it; count 7 involved whipping the complainant’s bottom, and after she objected the applicant did it again some five weeks later (count 8); further, even though complainant D’s boyfriend threatened to report the applicant to head office if he repeated what he had done, the applicant nonetheless committed counts 9-12 after that, and then continued with counts 13 and 14;
    6. the applicant was the adult in the workplace and that meant he should have been the protector of the complainants;
    7. the young age of the complainants;
    8. what was said in the victim impact statements of two complainants;
    9. that none of the acts involved the use of force or threats of physical violence;
    10. the personal circumstances of the applicant and the stressors to which he was subject during the period of offending in 2017 and 2018;
    11. the references and letter tendered in his support; and
    12. the fact that he had not reoffended in the period since 2019, noting that “does speak positively as to your prospects of rehabilitation”.
  2. [33]
    The learned sentencing judge characterized the offending conduct this way:[1]

“While the offending might be at the bottom of any possible range of seriousness for these offences, the circumstances of this offending involves the exploitation of young employees while you were in a position of authority. Your conduct persisted over a lengthy period of time. You took advantage of the power in the relationship with you as the employer to engage in sexual acts which were not welcomed by them.”

  1. [34]
    The learned sentencing judge considered that general deterrence was the paramount sentencing consideration.
  2. [35]
    The learned sentencing judge took into account the psychologist’s report, noting that the applicant had only started seeing her about two and a-half months before the sentencing.  Her Honour considered that treatment was in its early days and there was further work that the applicant needed to do.
  3. [36]
    Noting the limited findings in that report, her Honour said:

“I am satisfied that you understood the nature of your actions in sexually assaulting these various complainants, that you were able to control your actions, but you chose not to, and that you knew that you should not have been engaging in this kind of offending.”

  1. [37]
    The learned sentencing judge noted also the authorities to which she had been referred: R v Jones,[2] R v Murray,[3] R v Harper,[4] R v Al Aliach,[5] R v Manser,[6] R v Hayward[7] and R v Rogan.[8]
  2. [38]
    Her Honour imposed the head sentence of 18 months imprisonment on counts 1, 3, 4 and 11.  On each of the remaining sexual assault offences (counts 2, 5, 10, 12, 13 and 14) the sentence was 12 months.  The four common assault offences (counts 6-9) received four months imprisonment.  All sentences were concurrent and suspended after serving five months.


  1. [39]
    The applicant does not challenge the sentence of 18 months’ or 12 months’ imprisonment on the sexual assault counts.  Instead, it is contended that the sentence should have been immediately suspended.  That is the order now sought in respect of those counts.[9]
  2. [40]
    It is also submitted that the four months on each of the common assaults is manifestly excessive, given that such offences are often the subject of fines, not imprisonment.[10]  The order sought in that respect is that the sentences of four months’ imprisonment be vacated and on each of counts 6-9 the applicant be: (i) convicted and not further punished, or (ii) fined globally.[11]
  3. [41]
    In R v Eaton[12] this Court said:

[71] In order to establish that the sentence is manifestly excessive, this Court must be satisfied that there ‘must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’.  The mere fact that the sentence imposed is different from other sentences, and even markedly different from other sentences, does establish that it is manifestly excessive.  As was said by this Court R v MCT:

‘To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’.  Consistently with accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.’”

  1. [42]
    At the sentencing hearing the Crown submitted that a head sentence (to be imposed on some of the sexual assault offence) of two to three years’ imprisonment was open, suspended after serving six to nine months of actual imprisonment, with an operational period of three years.[13]
  2. [43]
    At sentencing the applicant’s counsel submitted that a sentence of two years’ imprisonment[14] was appropriate, and 12 months’ imprisonment on the other sexual assault counts, but in each case wholly suspended.[15]  Further, it was submitted that the common assault offences would receive “maybe six months’ imprisonment”.[16]  The Crown agreed with that submission as to the common assault counts.[17]
  3. [44]
    Thus, the position taken on behalf of the applicant at sentencing was relevantly at odds with the submission now made, in that for the common assault counts a period of imprisonment was conceded to be within the range of appropriate sentences.

Immediate suspension of the sexual assault sentences

  1. [45]
    It was common ground at the sentencing hearing that s 9(6) of the Penalties and Sentences Act 1992 (Qld) did not apply, because the exact ages of some of the complainants was unknown.  Because none could be said to be under 16, s 9(4) of the Act, which requires a term of imprisonment to be served unless exceptional circumstances are shown, was inapplicable.  That meant that s 9(2)(a)(i) was applicable.  That provides that when sentencing an offender the court “must have regard to … the principles that … a sentence of imprisonment should only be imposed as a last resort”.
  2. [46]
    It was also conceded at sentencing that the offending was serious with long-lasting effects:[18]

“The offending in no way, shape or form do we detract from. It’s serious. The impact on these particular two complainants has been long-lasting, and it can be inferred that there’s been impacts on the others as well. We don’t challenge that whatsoever.”

  1. [47]
    That concession was right.  The victim impact statements show lasting psychological harm caused by the applicant’s actions.
  2. [48]
    In characterising the offending conduct the applicant submits that “there were no instances of touching underneath clothing”.[19]  That is not so, and no such submission was made at the sentencing.  The agreed facts stated, as to complainant A: that the applicant put his hands “on the front of her breasts”, having unclipped her bra, and he said it was a “hand bra”.
  3. [49]
    In any event, the distinction sought to be made is hard to understand.  The applicant touched the breasts of complainant B (squeezing them and touching them on the sides), complainant E (grazing her breasts), complainant F (resting his hand on the side of her breast, and grazing both breasts), and complainant G (slowly and deliberately brushing her breasts).  In the circumstances that the conduct took place at the complainant’s place of work and the applicant was their manager, the under clothing significance is difficult to see.
  4. [50]
    The applicant submits that “the learned sentencing judge did not reject [the applicant’s] account of why he offended”, that being that he wanted to “cultivate a fun workplace”.[20]  I reject that submission.  The passage of the sentencing remarks where that occurred is:[21]

“I am satisfied that while your motivation of your offending may have been to create a fun workplace, although I do, as I have said, express some caution around that explanation. I am satisfied that you understood the nature of your actions in sexually assaulting these various complainants, that you were able to control your actions, but you chose not to, and that you knew that you should not have been engaging in this kind of offending.”

  1. [51]
    It is plain that her Honour expressed (not for the first time) her caution as to the truth of that explanation.  Her Honour then finds that the applicant understood his actions, that they were wrong, and he chose not to control himself.  That does not signify that her Honour accepted his explanation at all.
  2. [52]
    Conceding that 18 months and 12 months are within the appropriate exercise of sentencing discretion, the applicant submits that “when account is properly taken of the matters in mitigation”, there was no principled basis for imposing actual imprisonment.[22]  The matters of mitigation referred to are:
    1. early guilty plea;
    2. positive character references;
    3. assistance from a psychologist who opined that the risk of re-offending was low;
    4. an explanation or context for the offending;
    5. no offending in the period since 2019;
    6. his remorse and insight;
    7. positive steps to rehabilitation; and
    8. his deficiency in reading social cues.
  3. [53]
    All of those matters were weighed by the learned sentencing judge.  Her Honour accepted many of them.  However, some were discounted to one degree or another.  Specifically, the explanation or context (the fun workplace) was rejected.  Her Honour found that the applicant “understood the nature of [his] actions in sexually assaulting these various complainants, that [he] were able to control [his] actions, but … chose not to, and that … knew that [he] should not have been engaging in this kind of offending”.  Further, the deficiency in reading social cues was something that came from a self-report listed in the psychologist’s report,[23] and as part of the explanation for the conduct which her Honour rejected.
  4. [54]
    Further, whilst there were steps to rehabilitation her Honour found they were early steps and there was more work to be done.  Likewise the engagement with the psychologist who prepared the report for the sentencing was only recent, so much so that no diagnosis was possible.  Moreover, the report stated that the symptoms he was experiencing were in response to his impending sentencing, but were “below the clinical threshold for diagnosis of a mental health disorder, and are likely to ameliorate following the Court's disposition”.
  5. [55]
    Her Honour found that the paramount consideration was general deterrence.  No challenge is made to that finding.  Given her Honour’s characterisation of the conduct as serious and prolonged exploitation of young female employees, and the finding that the applicant knew what he was doing was wrong and did it by choice when he could have self-controlled his actions, general deterrence did loom large.  As her Honour observed, the offending conduct continued after the applicant was made aware by some complainants, and complainant D’s boyfriend, that it was unacceptable.
  6. [56]
    The applicant’s reliance on R v Al Aiach[24] does not compel the conclusion that the sentencing discretion has miscarried.  That sentence was 12 months suspended after four months.  On the point at issue in this application, it supports the imposition of a period of actual imprisonment.
  7. [57]
    Moreover, a consideration of Al Aiach reveals considerations similar to those here which warranted the imposition of actual imprisonment.  Keane JA said:[25]

[46] Next, in my respectful opinion, it is not a fair reading of the sentencing remarks of the judge to say that they show that the sentencing judge regarded the decision of this Court in R. v. Jones as requiring that a term of four months’ actual imprisonment be imposed in this case. It is true that his Honour referred to R. v. Jones without adverting to the very real differences between the facts of this case and those involved in R. v. Jones, but his Honour’s remarks show that he was fully alive to the need to recognise the applicant’s early plea of guilty, his remorse for his offending and Dr McCulloch’s views as to the applicant’s prospects of rehabilitation.

[47] It must also be said that there are factors of concern present in this case that were absent from R. v. Jones. The obvious factors in this regard are that there were four complainants, that the offending conduct persisted over a lengthy period of time, and that the applicant took advantage of his power in a relationship akin to one in which he stood in loco parentis to the complainants to indulge his sexual instincts in a way which was not welcomed by them.

[48] In oral argument, senior counsel for the applicant placed particular emphasis on s. 9(6)(f) of the Penalties and Sentences Act 1992 and the absence of specific reference by the sentencing judge to the positive opinion of the applicant’s prospects of rehabilitation advanced by Dr McCulloch. Nevertheless, it is clear that His Honour did refer to Dr McCulloch’s reports. Further, it cannot be said that a term of imprisonment was, as a matter of law, not available as a sentencing option by reason of the applicant’s prospects of rehabilitation, even taking into account the other circumstances in mitigation to which His Honour referred. No statutory provision and no decision of this Court supports that proposition.

[49] Considerations of deterrence are an important factor in cases such as the present. It may be accepted that, in some cases, proper recognition can be given to considerations of deterrence by a suspended sentence. Such cases may sensibly be described as involving exceptional circumstances. The circumstances summarised in para. [42] above do not mean that the present case is one in which the circumstances are such as to compel the conclusion that a custodial sentence is not warranted. This is especially so when the matters referred to in para. [47] above are also borne in mind, as they must be in the process of synthesis involved in arriving at a proper sentence.”

  1. [58]
    In the end, Al Aiach was a case like the present one, where there was sexual offending by exploitation of a position of authority over young women, over a long time.  Further, in Al Aiach, like the present case, there were strong mitigating factors.  But, I would respectfully adopt the statement of Keane JA as apt to the present case:[26]

[51] In the present case, the applicant did not abuse a position of professional trust, but he did exploit a position of authority over vulnerable young women. He was a persistent offender, with four young women, over a long period of time. The mitigating factors in this case are strong in comparison to those in R. v. Fereiro, but they are not such as to establish that it was wrong of the sentencing judge to regard a short period of actual imprisonment as warranted by the more serious circumstances of the applicant’s offending.”

  1. [59]
    R v Abdullah[27] is a recent decision of this Court concerning a sentence where it was said the applicant’s strong mitigating features meant that the imposition of a period of actual custody rendered the sentence manifestly excessive.  The facts of the offending are well removed from the present case, but the present applicant’s continuing to offend after becoming aware of objections is in some ways similar to Abdullah’s offending while on bail for the first charge.  Bowskill CJ said:[28]

[47] In addition, the requirement for this applicant to serve five months of that in custody, before the balance was suspended, is not unjust or unreasonable. The circumstances of the offending and this offender – notably, the further offending whilst on bail, his minimisation evident from the psychologist’s report and the failure yet to have taken any therapeutic steps to address the offending – are such that appropriate punishment, deterrence, strong denunciation of the conduct and community protection all justified an order that he serve part of the sentence in actual custody. This was not a case in which a wholly suspended sentence was appropriate. The portion required to be served reflects the orthodox approach, on a plea of guilty, of requiring an offender to serve around one-third of the sentence imposed. That another judge may have suspended the sentence at an earlier time is not such as to demonstrate error.”

  1. [60]
    Abdullah serves to remind that each case depends on its own factors, to be weighed in the overall sentencing process, and just because a particular sentence is imposed in one case does not, ipso facto, make a different sentence in another case manifestly excessive.
  2. [61]
    I am unable to conclude that the imposition of a term of actual custody was outside the bounds of the proper exercise of the sentencing discretion.

Common assault counts – term of imprisonment

  1. [62]
    The applicant submits that common assault counts such as counts 6-9 would normally attract a fine or no conviction.  Therefore, it is said, it is clear that a term of imprisonment, no matter how short, is beyond the bounds of a proper exercise of the sentencing discretion.
  2. [63]
    I reject that submission for several reasons.
  3. [64]
    First, counts 6-9 did not occur in a vacuum.  They were an integral part of the overall offending, all of which was the exploitation of young employees, in their workplace, by a mature manager.  Moreover, they showed a continuation of similar offending, namely touching breasts and bottoms.  Further still, they were a continuation of conduct that had resumed after a break of some nine years.[29]
  4. [65]
    Secondly, those counts were important in the understanding of the applicant’s conduct, and his persistence after complaint.  Count 6 involved him punching a girl’s breast and being told to “fuck off”.  He could not have misunderstood the response as anything but an objection.  Yet he then committed count 7, again being told to “fuck off”.  Over that objection he committed count 8, which resulted in a complaint via the girl’s boyfriend, who threated to tell head office.  Yet, he went on with count 9, a common assault, then the remaining sexual assaults.
  5. [66]
    Thirdly, at the time of counts 6-9 the applicant was a mature man aged 36 or 37.  He had already committed sexual offences against young female employees, including count 5 in about the same time frame.  In the circumstances counts 6-9 were hardly acts that did not warrant a sentence that gave great weight to general deterrence.  To impose a sentence of the kind proposed would be to severely diminish the deterrent effect.  Others who might seek to perpetrate such acts against young female employees, falling short of sexual assault, should be warned not to do so.
  6. [67]
    Fourthly, the circumstances of the offending to that time, and the continuation of the exploitation of employees by counts 6-9, were aggravating factors that called for condign punishment.
  7. [68]
    Fifthly, the applicant’s counsel conceded at the sentencing hearing that a term of imprisonment was open.  That submission was that six months was appropriate.[30]  The four months’ term imposed was less than that.
  8. [69]
    Finally, during the hearing before this Court a submission was made that the sentence on each of counts 6-9 was nine months, and not the four months recorded in the Amended Verdict and Judgment Record,[31] and the Court Order Sheet.[32]  This was based on the transcript recording her Honour pronouncing “nine months” on each of counts 6-9.[33]  The audio recording of the sentencing hearing reveals her Honour saying “nine months”.
  9. [70]
    After counsel for the applicant had proposed six months as being within the appropriate range,[34] her Honour asked the Crown whether they wished to say anything about imposing “four – a sentence of four – of six months” on those counts.[35]  The Crown responded that that was the Crown’s submission.[36]  Her Honour did not signal that the sentence might be higher than the six months proposed by each side.  True it is that the transcript records “nine” but the Court Order Sheet and the original Verdict and Judgment Record[37] state “four months”.  The Amended Verdict and Judgment Record[38] was not amended in that respect but only to record the correct charges at the top of page 3.[39]
  10. [71]
    In my view, it is plain that her Honour did not intend that nine months be the sentence imposed.  The proper inference is that her Honour mis-spoke and corrected the sentence after the hearing.
  11. [72]
    Before this Court the Crown accepted that the sentence on each of counts 6-9 was four months and said that it did not intend to apply to alter the Amended Verdict and Judgment Record.
  12. [73]
    In my view, in the circumstances it cannot be said that the sentences on counts 6-9 were unreasonable or plainly unjust.


  1. [74]
    I propose the following order:
  1. Application for leave to appeal against sentence refused.
  1. [75]
    BOND JA:  I agree with the reasons for judgment of Morrison JA and with the order proposed by his Honour.


[1] AB 35 lines 35-40.

[2] [2003] QCA 450.

[3] [2005] QCA 188.

[4] [2002] QCA 107.

[5] [2006] QCA 157.

[6] [2010] QCA 32.

[7] [2019] QCA 91.

[8] [2021] QCA 269.

[9] Outline paragraph 31(b).

[10] Outline paragraph 24.  Note, while the outline refers to a period of imprisonment of nine months for the common assaults, the applicant submitted during the hearing before this court that the four months imposed is manifestly excessive.

[11] Outline paragraph 31(a).

[12] [2019] QCA 147 at [71].  Internal citation omitted. See, more recently, R v Abdullah [2023] QCA 189 at [28].

[13] AB 23 lines 12-19.

[14] As the head sentence attached to counts 1, 3, 4 6 and 11.

[15] AB 24 line 28, AB 25 lines 7-9.

[16] AB 24 line 41 to AB 25 line 9.

[17] AB 32 lines 1-17.

[18] AB 28 lines 43-46.

[19] Outline paragraph 3.

[20] Outline paragraph 10.

[21] AB 36 line 48 to AB 37 line 5.

[22] Outline paragraph 30.

[23] AB 47, 48.

[24] [2006] QCA 157.

[25] Al Aiach at [46]-[49]. Footnote omitted.

[26] Al Aiach at [51].

[27] [2023] QCA 189.

[28] Abdullah at [47].

[29] Counts 1-4 were in 2007/2008, then count 5 occurred in 2017/2018.

[30] Outline on sentencing, page 9; AB 25 line 9.

[31] AB 9.

[32] AB 8.

[33] AB 37 lines 43-44.

[34] That was the proposal in the applicant’s written submissions at the sentencing, paragraph 7.

[35] AB 32 lines 1-3.

[36] AB 32 lines 9-13. It was what was submitted in the Crown’s written outline on sentencing, paragraph 9.9(VII).

[37] Printed at 4.12pm on Friday 13 October 2023, the day of sentencing.

[38] Amended on Monday 16 October 2023.

[39] The same amendment appears on the Court Order Sheet.


Editorial Notes

  • Published Case Name:

    R v Downs

  • Shortened Case Name:

    R v Downs

  • MNC:

    [2023] QCA 223

  • Court:


  • Judge(s):

    Mullins P, Morrison JA, Bond JA

  • Date:

    17 Nov 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.