R v BES[2025] QCA 109

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Brown JA.
2. [2]
   BROWN JA:  On 22 January 2025 the applicant entered pleas of guilty and was sentenced.  The charges and sentence imposed are as follows:

3. [3]
   The applicant seeks leave to appeal the sentence contending that:

   1. the learned sentencing judge erred in characterising the applicant’s knowledge of the wrongfulness of his conduct as diminishing his moral culpability and lessening the causal relationship between the applicant’s mental disorders and the offence;
   2. the sentence was manifestly excessive.

Circumstances of the offending

4. [4]
   The applicant and the complainant commenced a sexual relationship after she had told the applicant she was 16 years of age, but was in fact 13 years of age.  The applicant was informed by the complainant of her actual age at the commencement of the maintaining period.  The applicant’s sexual contact varied.  Although the complainant was underage there was no suggestion the sexual contact was not consensual, although given her age, that does not alleviate the seriousness of the offending.
5. [5]
   The complainant had run away from home and had met the applicant when she was with a friend.  That meeting resulted in her being added on a messenger application of the applicant.  At that time the complainant told the applicant she was 16 years of age.  The complainant and applicant messaged each other for some time after that.  In June 2021, the complainant messaged the applicant and asked if she could go to his house.  He agreed.  They smoked marijuana together.  When she woke up she was in the applicant’s lap.  She remained at the applicant’s house for a week and had consensual sex at least once.
6. [6]
   The applicant’s sister told the applicant that the complainant was in a residential care facility.  The complainant then told him her age.  After the applicant discovered that the complainant was 13 years of age he was, initially, upset with her but then subsequently said it was okay and the relationship between them continued.
7. [7]
   The applicant and complainant had an unlawful sexual relationship for approximately seven and a half months between 17 June 2021 and 27 January 2022.  The number of times the two of them engaged in sexual conduct was not able to be particularised by the complainant.
8. [8]
   Between 19 June 2021 and 26 January 2022, the police found the applicant and complainant together on several occasions, particularly after the complainant had been reported missing by her carers.  The defendant would order Ubers to pick the complainant up and take her to his house.  According to the complainant they had sexual conduct during that period between June 2021 and February 2022 “all the time”.^[1]
9. [9]
   On occasions the applicant called the complainant “a dirty little slut” and spat on her face when they had sex.^[2]  At other times he would call her a “good girl”.^[3]  The applicant also often asked the complainant to call him “daddy” when they had sex but she refused.^[4]  The applicant was on occasion during the relationship aggressive and controlling of the complainant at times.  On one occasion when the complainant was at his house he told her to “get the fuck out”, grabbed her arm to drag her and then pushed her out the door.^[5]
10. [10]
    Between February 2022 and January 2023, no sexual contact occurred as the complainant was undergoing an intensive intervention program.
11. [11]
    On 10 January 2023 the complainant was at the beach and could not get home.  She contacted the applicant and he drove her home.  The next day she went to his house and they recommenced their sexual relationship.  Between 10 January 2023 and 9 April 2023, the complainant and applicant had consensual sex an estimated 10 to 30 times.
12. [12]
    The above conduct constituted count 1.  The specific instances of sexual intercourse the complainant could recall were the subject of counts 2-4.
13. [13]
    Count 2 related to sexual intercourse having occurred on or about 19 June 2021 when the applicant slept over at the complainant’s house.  He and the complainant had consensual sex.  The complainant’s mother found the applicant in her bed and called the police.  The applicant initially lied to police and said he and the complainant were just friends and had not had sex but later said that they did have consensual sex but he thought that she was 16.  The complainant told police she had told the applicant that she was 13 the week before when she was at his house.  She denied having sex with the applicant the previous night, although she had admitted that they had consensual sex the previous week.
14. [14]
    In February 2022 the complainant had surgery to have her tonsils and adenoids removed.  After getting out of the hospital the complainant stayed at the applicant’s house and on the second night the applicant and complainant had sex.  That resulted in the charges which is the subject of count 3.
15. [15]
    On 14 March 2023 the complainant found out she was pregnant.  At the time she was 15.  She told the applicant that she was pregnant.  He was initially shocked and scared but subsequently told his recovery facilitator that he was excited.  His recovery facilitator reported the fact that the complainant was pregnant to police after learning the complainant was 15.
16. [16]
    In April 2023, the complainant met up with the applicant to tell him that she did not want him or his family to be involved in the baby’s life.  They returned to the applicant’s house.  The complainant ultimately agreed to have sexual intercourse with the applicant.  That was the subject of count 4.  After sex the complainant found she was bleeding.  The applicant took her to the hospital.  The applicant refused to go inside with her.  The applicant then began calling the complainant from his mother’s phone to accuse her of cheating on him.
17. [17]
    In the period between 9 and 17 April, the applicant called the complainant to apologise for not going into hospital with her.  During the call he referred to the complainant as his girlfriend and the baby as being his and apologised saying that he “never should have fucked an underaged girl”.  He also said that he did not go into the hospital with her because he was scared about being arrested and going to jail.^[6]
18. [18]
    The applicant was arrested on 4 May 2023.  He declined to participate in an interview.

The applicant’s antecedence

19. [19]
    The applicant was between 22 and 24 at the time of offending and 25 at the time of sentence.  The evidence however showed that the applicant suffered significant mental health impairments and reduced intellectual capacity.  According to the opinion of the psychologist, Dr Andrews, the applicant was more emotionally and socially congruent with teenagers due to his development disorders.
20. [20]
    The applicant had an unrelated criminal history in respect of drug-related offending.  All the charges have been dealt with in the Magistrates Court and he had not been subject to any term of imprisonment.
21. [21]
    The applicant had a difficult life.  He was diagnosed with autism spectrum disorder (ASD) at the age of three and later diagnosed with attention deficit hyperactivity disorder (ADHD).  By the age of five he was diagnosed with an intellectual disability.  At the age of seven he was involved in a car accident with his family.  As a result of that accident, his mother and father spent a long period of time in hospital and later in rehabilitation.  The applicant and his twin sister were cared for by their grandmother for almost two years.  Both parents suffered brain injuries which resulted in them not being able to fulfil the duties of parents at the same level as before they had the accident.  The applicant was diagnosed with post traumatic stress disorder (PTSD) as a result of the accident.
22. [22]
    The applicant attended a special school through to grade 12.  He subsequently obtained employment in hospitality, which he had difficulty in maintaining it appears, as a result of his disabilities.  He struggled to engage socially at school or form meaningful social relationships.  He engaged in cannabis use which the psychologist considered worsened his mental health.
23. [23]
    The applicant entered a timely plea of guilty.  References from his mother and his support workers and counsellor, provided on his behalf at sentence, supported his remorse, positive treatment for his mental health and obtaining NDIS support which made a positive difference.  The references of his support workers also noted his gentle and caring character and the rehabilitative steps he had taken to improve his circumstances including ceasing the use of cannabis.

Psychological reports

24. [24]
    Reports of a psychologist, Dr Andrews and psychiatrist, Dr Johnson, were tendered at sentence.
25. [25]
    At the time of the report, the psychiatrist observed that the applicant had a diagnosis of recurring psychotic illness, likely schizophrenia, with a differential of recurrent substance induced psychosis given his significant cannabis use.  The psychiatric report noted that the applicant suffered a learning difficulty and intellectual impairment and was found to meet the criteria to have a mild intellectual development disorder.  His IQ fell into the extremely low range across all areas except for the verbal comprehension index which was borderline range.
26. [26]
    The psychiatrist found that the applicant had the capacity to know he was having a relationship with the complainant and that his account indicated that his understanding was that they were in a relationship when she was a minor.  The psychiatrist considered that he had the capacity to control his actions, especially over the long period which the offending occurred, notwithstanding he behaved erratically on occasions.  While the psychiatrist found his intellectual impairment was likely to reduce his problem solving abilities, including in navigating relationships and managing distress, the psychiatrist did not believe he was wholly deprived of the capacity to control his actions regarding the continued relationship.  Nor did the psychiatrist consider he was deprived of the capacity to know that he ought not to have maintained the relationship.
27. [27]
    In relation to the offences, the psychiatrist did not consider that he was deprived of the capacity to understand what he was doing in relation to the offence, that he was not deprived of the capacity to control his actions, nor was he deprived of the capacity to know that he ought not to commit the offence.  The report concluded that the offences were not due to unsoundness of mind in the sense of total deprivation of relevant capacities.  The psychiatrist did however consider that due to limitations within his support network, his intellectual impairment and exposure to illicit substances from a young age, his decision making and judgment can be somewhat impaired and he certainly appeared to benefit from added support and scaffolding around these contributing factors.
28. [28]
    The applicant was assessed by a clinical psychologist and neurologist, Dr Andrews, who provided a report dated 5 March 2024.
29. [29]
    Dr Andrews observed that the applicant had limited social support during his late childhood and teenage years, following his parents being in the car accident.  It was noted that he struggled socially due to significant social anxiety and symptoms of ASD.
30. [30]
    Dr Andrews considered that the applicant’s suffering both ASD and ADHD and a learning disorder affected his schooling experience, academic achievement and his social and emotional development.  That was further impacted by his suffering PTSD.  Dr Andrews found that while the applicant had been able to develop a basic understanding of social interactions and relationships and had learnt skills to allow him to socially interact in a simple yet awkward manner, he lacked age appropriate social cognition, social problem solving and consequential thinking skills.  Dr Andrews found he had moderate difficulties with social cognition and severe difficulties with social communication.
31. [31]
    Dr Andrews considered that most relevant to his offending was his impairments in social functioning, social reasoning, emotional regulation and engagement in maladaptive coping strategies such as substance abuse.  Dr Andrews found that his cognitive assessment results indicated his general reasoning and problem solving skills were in the borderline range and well below age expected levels.  In relation to executive function tasks he demonstrated a concrete/literal style of thinking.  Those impairments contributed to his social, emotional and interpersonal difficulties.  Dr Andrews found that due to his developmental disorders the applicant is more emotionally and socially congruent with teenagers and that his reduced cognitive functioning lent to him more easily interacting with teenagers who he found less anxiety-provoking and shared similar interests.
32. [32]
    Dr Andrews found several drivers for the applicant’s continuation of the relationship with the complainant after discovering that she was under the legal age of consent.  While maintaining the relationship was a way to meet the applicant’s intimacy and sexual needs, he had limited consideration of the impact upon the complainant.  He had difficulties ceasing his interactions with the complainant and engaged in maladaptive attempts to cease contact with the complainant, including requesting the police to take the complainant back to her residence when they attended his house for a welfare check and being nasty to the complainant.  According to the applicant, the lack of action by those supporting him, the complainant’s carers and people in authority, demonstrated a lack of concern about the relationship which alleviated his own concerns and which he took as a level of permission around continuing the relationship.
33. [33]
    Dr Andrews did however consider that the applicant was aware of the age of consent and continued the relationship after being made aware of the fact that the complainant was underage.  He took responsibility for his actions and admitted at the time that he knew his actions were wrong.  Dr Andrews considered that he understood the nature of the charges and that they resulted from him having a sexual relationship with the complainant.  Dr Andrews noted that the applicant would struggle with the custodial environment and would be at risk of victimisation and developing anti-social traits.
34. [34]
    At the time of sentencing the applicant had obtained support from NDIS and had a support team to assist his daily living tasks, including selfcare, socialising skills, decision making skills and was attending appointments.

Sentencing considerations

35. [35]
    The sentencing judge took into consideration:

    1. the applicant’s antecedents in terms of his age and criminal history;
    2. the circumstances of his offending;
    3. his plea of guilty and demonstrated remorse;
    4. his favourable character references from a number of sources;
    5. his personal background, particularly as detailed by his mother, his difficulties from a young age, his diagnosis with an intellectual disability from the age of five and that he suffered bullying at school and was isolated from his peers;
    6. the traumatic circumstance of the car accident involving his family;
    7. the psychiatric report and psychological report to which he gave appropriate weight.  He took into account that the applicant was diagnosed with ASD and ADHD and that he suffered from a lifelong neurodevelopmental disorder and met the criteria for a disorder of intellectual impairment;
    8. that Dr Andrews detailed the impact of the applicant’s disabilities and had assessed him as lacking theory of mind as a result of ASD, which is the ability to understand that others may have different emotional states and will fail to appreciate the effect of behaviour upon others; and
    9. that he had a diagnosis of serious mental illness, likely to be schizophrenia for which he was being treated.
36. [36]
    The sentencing judge stated that:^[7]

“Your mental impairment somewhat reduces your moral culpability, but you nevertheless had the ability to make rational choices, as was evidenced by what you said about not going into the hospital with the complainant.  That shows that you knew the wrongfulness of your conduct.  I accept that any time in prison will be difficult for you.”

37. [37]
    In sentencing the applicant, the sentencing judge noted the purposes of sentencing, but stated “[h]aving regard to your mental impairment, personal and general deterrence are not significant factors in this case.”^[8]  His Honour had regard to the cases referred to him as yardsticks and the maximum penalties for the offending.  His Honour  had regard primarily to the factors in s 9(6) of the Penalties and Sentences Act, as well as s 9(4)(c) which provides that an offender must serve an actual term of imprisonment unless there are exceptional circumstances, which the applicant’s counsel had submitted was the case in relation to the applicant.
38. [38]
    In sentencing his Honour stated:^[9]

“I have determined that the appropriate sentence for count 1, repeated sexual conduct with a child, is three years’ imprisonment. That was within the broad range that was accepted to be appropriate by your counsel. The question is whether there are exceptional circumstances that justify a departure from the requirement that you serve actual imprisonment. I have given appropriate weight to your intellectual disability and mental illness, as well as the factors relied upon by your counsel, Ms Horne, particularly at paragraph 4 of her helpful written submissions. However, at the end of the day, I am not persuaded that there are exceptional circumstances that justify a departure from the requirement imposed by the law that you serve actual imprisonment. However, having regard to the mitigating factors, the period of actual imprisonment will be the least period that I consider can be imposed, having regard to all of the circumstances.”

39. [39]
    His Honour ordered the applicant to serve actual imprisonment for a period of 4 months.

Ground one

40. [40]
    The applicant contends that the sentencing judge erred in giving weight to the applicant’s acknowledgement to the complainant that he knew what he did was wrong, following his attendance at hospital and treated that as lessening the impact of his mental disorders relevant to the reduction in his moral culpabilities.  The applicant contends that the degree to which his mental disorder accounted for his criminality in the reduction of moral culpability was and should have been treated as a separate issue.  The applicant’s counsel contended that the disclosure to the complainant after he had taken her to hospital should have served as a mitigating feature showing his remorse and taking responsibility for his role.  It was contended that the sentencing judge’s reasoning, by referring to the applicant’s ability to know what he did was wrong, after referring to the impact of his mental impairment reducing his moral culpability, constituted an error in the exercise of the sentencing discretion as it treated the statement as lessening the impact of his mental health impairments.  That error is said to have resulted in a sentence which is manifestly excessive in all of the circumstances.
41. [41]
    The Crown submits that his Honour did not conflate the two matters, but in any event submits that the insight was relevant to the question of reduction of moral culpability.
42. [42]
    A fair reading of the sentencing judge’s comments does not suggest he treated the fact that the applicant had the ability to make rational choices and understood the effect of them, as diminishing the effect of his mental health impairments.  The fact that the applicant was capable of making such choices was acknowledged in the reports of both the psychologist and the psychiatrist and relevant to his level of mental health impairment and effect on his offending.  That plainly was relevant to the level of the applicant’s moral culpability having regard to the considerations outlined in R v Verdins.^[10]
43. [43]
    The sentencing judge made the comment about moral culpability after having observed that the applicant was suffering a serious mental illness, namely schizophrenia, rather than in the context of his observations as to his mental impairment from lifelong conditions of ASD, ADHD and an intellectual impairment, the impacts of which had been discussed by Dr Andrews.
44. [44]
    The psychiatrist, Dr Johnson, in her report said in relation to the applicant’s psychosis and schizophrenia, that they did not deprive him of the capacity to control his actions.^[11]  In addition to the matters referred to earlier, the psychiatrist considered he was not deprived of the capacity to know that he ought not to maintain the relationship.  She did not find he was deprived of the capacity to understand what he was doing at the time of the offence was wrong or that he ought not commit the offence.  She acknowledged, however, that his cannabis use and intellectual impairment would likely have affected his decision-making or problem solving abilities, a matter which was discussed in more detail by Dr Andrews, which the sentencing judge had earlier acknowledged.
45. [45]
    Dr Andrews did not discuss schizophrenia as being one of the conditions relevantly giving rise to his impairments that were affecting him with respect to his offending, although she considered that his cannabis use had contributed to his poor mental health.
46. [46]
    The fact that the sentencing judge did not use the comment referred to by the applicant to reduce the effect of the applicant’s mental health impairment and its relationship with his offending was made clear by his Honour’s subsequent discussion as to the purposes of sentencing noting that “[h]aving regard to your mental health impairment, personal and general deterrence are not significant factors in this case.”^[12]  That was a clear acknowledgement of the applicant’s mental health impairments and its causal relationship with his offending in the sense discussed by the Victorian Court of Appeal in R v Verdins at [26].^[13]  While the applicant’s impaired functioning did reduce his moral culpability, neither the report of Dr Johnson or Dr Andrews supported a finding that the impairment was of a degree to eliminate the need for personal and general deterrence altogether.^[14]
47. [47]
    An assessment of an offender’s moral culpability “includes both a consideration of the objective seriousness of their offence but also extend to a consideration of some of their personal circumstances, including circumstances which may affect their capacity to reason, appreciate the full wrongfulness of their actions or control their conduct.”.^[15]  It is evident that was the assessment made by the sentencing judge.  The fact that the applicant was conscious and understood that his actions in his sexual offending against the complainant were wrongful and was able to control his actions, demonstrated that his impaired mental functioning at the time of the offending did not reduce his moral culpability to being non-existent.  While of reduced relevance, general and personal deterrence remained relevant to sentencing.  As was submitted by the Crown, the assessment by Dr Andrews and the drivers of the applicant’s offending conduct which she identified did not suggest that the applicant’s mental health acted to impair his appreciation of the offence he was committing, but rather affected his ability to assess its impact on the complainant and to stop the relationship continuing.
48. [48]
    The submission that the applicant’s comments to the complainant after the hospital should have been treated as a mitigating circumstance on the basis it showed remorse and took responsibility for his role is misconceived.  In context, it was more a statement of regret for his conduct when the complainant was at the hospital and an acknowledgement that he had personal exposure due to his relationship with the complainant when she was underage.
49. [49]
    The complaint of the applicant is one of weight rather than an error in the assessment of the relevant evidence.
50. [50]
    There was no error by the sentencing judge.

Manifest excess

51. [51]
    Even if his Honour did not err in the respect contended by the applicant, the applicant submits that the combination of factors relevant to the sentence were such that the sentencing judge was required to conclude that those matters constituted exceptional circumstances on the facts of the case.  In particular the applicant contends that the features relevant to the applicant were not transferrable to ordinary members of the community and their presence were exceptional circumstances resulting in a manifestly excessive sentence.
52. [52]
    In order to succeed in 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’”(footnotes omitted).^[16]
53. [53]
    The consideration of whether circumstances in any given case justify a finding of exceptional circumstances is a matter for the discretionary judgment of the sentencing judge.^[17]
54. [54]
    In R v BCX, Burns J at [34] stated:

“Any assessment whether exceptional circumstances exist in a particular case will therefore need to be undertaken with those considerations at the forefront of the sentencing judge’s mind.  In this regard, it can be seen that they not only include factors going to an assessment of the objective seriousness of the offence, the effect of that offence on the victim and the need for personal and general protection and deterrence, but also such considerations as the offender’s prospects of rehabilitation (including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community), the offender’s antecedents, age and character, whether there is remorse and any medical, psychiatric, prison or other relevant report relating to the offender.”

55. [55]
    In the present case, like BCX, one cannot conclude that the sentencing judge’s finding that there were not exceptional circumstances was an error.  His Honour took into account all of the relevant features, including those which militated towards there being exceptional circumstances such as his mental health impairment and intellectual disability, together with the matters summarised by the applicant’s Counsel in her submissions.  He acknowledged that any time in prison would be difficult for the applicant.
56. [56]
    The assessment of whether there are exceptional circumstances is not one which has one unique right answer.^[18]
57. [57]
    In R v TBE^[19] the court found that the messaging by the applicant which sought to groom the underage complainant was not exceptional, notwithstanding that the messages did not contain indecent content or the fact that the applicant had amorous feelings for the complainant.  Justice Kelly stated that “wholly ignored the reality that the offending involved grooming a child, with knowledge of the child’s age and with knowledge that any sexual relationship with the child was illegal.  At the heart of the offending was conduct engaged in for the purpose of later sexually exploiting a child”.^[20]
58. [58]
    At paragraph [31] Kelly J referred to the question of whether exceptional circumstances were established on the facts of a particular case which he stated involves “an assessment which calls for a value judgment as part of the instinctive synthesis involved in the exercise of the sentencing discretion.  When considering whether exceptional circumstances exist, the starting point involves identifying the criminality of the conduct revealed by the facts and circumstances of the offending.  As was observed in R v Bredal, ‘…the greater the objective seriousness of an offence the more difficult it will be to establish the case is relevantly exceptional’”.^[21]
59. [59]
    In the present case the objective seriousness of offending against a complainant who was only 13 years old when the offending began and took place over an extended period of time, involving full sexual intercourse, was however significant.  The applicant appreciated that was wrong due to her age, even if his conduct was unfortunately condoned by a number of people around him.
60. [60]
    While general deterrence and personal deterrence were, as his Honour recognised, not significant factors, they remained factors in the present sentence as did denunciation for the conduct involved.
61. [61]
    Although the present case was a difficult one given the applicant’s circumstances, it was open to the sentencing judge to form the view that there were not exceptional circumstances.
62. [62]
    The sentencing judge reduced the time to be spent in custody by the applicant to what he regarded as the minimum period, a period of some 4 months, which in the circumstances of his offending, where an unlawful sexual relationship with a 13 year old was maintained over an extended period, reflected a significant reduction from what otherwise would have been imposed upon someone who did not have the applicant’s mitigating circumstances.
63. [63]
    The applicant did not point to any sentences demonstrating the sentence was manifestly excessive.  In the circumstances, the sentence imposed does not indicate a misapplication of principle due to it being unreasonable and unjust.
64. [64]
    In all of the circumstances the applicant has failed to establish that the sentence imposed was manifestly excessive.  Application for leave should be refused.
65. [65]
    The order that the Court should make is:

1. Application for leave to appeal against sentence is refused.

66. [66]
    RYAN J:  I agree with Brown JA.