R v Oates[2025] QCA 173

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  On 5 June 2025, the applicant pleaded guilty to two counts of indecent treatment of a child under 16, under 12.  It was ordered that he be imprisoned for 6 months on each count, suspended after serving a period of 2 months’ imprisonment, for an operational period of 6 months.  The terms of imprisonment were ordered to be served concurrently.
2. [2]
   The applicant seeks leave to appeal his sentences.
3. [3]
   Should leave be granted, the applicant relies on three grounds.  First, that the sentencing judge failed to take into account a relevant consideration, namely delay, as a factor in the sentencing exercise.  Second, that the sentencing judge erred in finding that the circumstances did not amount to exceptional circumstances within the meaning of s 9(4) of the Penalties and Sentences Act 1992 (Qld).  Third, that the sentences were manifestly excessive.

Offences

4. [4]
   The offences were committed on 27 November 2022, against the one female complainant aged 4 years’ 7 months.  The applicant was aged 40 years.  He was aged 42 years at the date of sentence.
5. [5]
   The applicant had no prior history for similar conduct, or for any offences involving children.  He did, however, have a criminal history.  It comprised largely public nuisance and property offences, most of which were very dated.  His most recent conviction was for a public nuisance offence committed in December 2014.
6. [6]
   The complainant was the daughter of a friend of the applicant.  The offences were committed in a hallway at the friend’s house.  The applicant had attended during the afternoon and consumed a few drinks.
7. [7]
   The applicant pulled his pants down, exposing a part of his penis to the complainant (count 1).  The applicant asked to see the complainant’s “bum”.  She lifted her dress to the top of her underwear (count 2).  At that point, the complainant’s mother walked into the hallway.  She observed the applicant pulling up his pants and the complainant standing in front of him, holding her dress up above her underwear.  The mother told the complainant to pull her dress down and took her into the kitchen.
8. [8]
   In the kitchen, the complainant disclosed to her mother that the applicant had showed her his “wee wee area” and asked to see her “bum”.  The complainant’s mother made up a story to get the applicant out of the house.
9. [9]
   A complaint was made to police later that same day.  On 10 January 2023, the applicant participated in a formal interview with police.  He denied the offending during that interview.

Procedural history

10. [10]
    The indictment was presented on 18 March 2024.
11. [11]
    The complainant’s evidence was pre-recorded on 19 July 2024.  During cross-examination, it was put to the complainant that the offending did not occur at all.
12. [12]
    A trial of the proceeding was listed for November 2024, but not reached.  The trial was re-listed for June 2025.
13. [13]
    The applicant’s pleas of guilty were indicated just weeks before the listed commencement date for trial.

Sentence hearing

14. [14]
    At the sentence hearing, it was submitted that the applicant’s guilty pleas, albeit late, were entered after negotiations with the Crown and were properly reflective of cooperation and a level of remorse.  Further, having regard to the applicant’s dated and irrelevant criminal history, lack of prior convictions for sexual offending or for offences against children, lengthy period on bail during which there was no further offending, age, the lower end of the scale of seriousness of the offending conduct and the consequences of imprisonment on the applicant, his family, his business and its employees, the court ought to find that there were exceptional circumstances such that a period of actual imprisonment ought not to be imposed.

Sentencing remarks

15. [15]
    The sentencing judge recorded that the applicant had entered pleas of guilty in circumstances where he initially denied the offending, had given instructions which were put to the child complainant in cross-examination denying that the offending occurred and after the indictment had been listed for trial on two separate occasions.  Whilst the pleas of guilty had been entered in circumstances where the Crown had agreed to amend the statement of facts to delete an allegation that the complainant had also pulled down her underwear, the sentencing judge observed that that change was not of great significance.  Accordingly, the pleas of guilty were not early, nor were they especially indicative of cooperation or remorse.
16. [16]
    The sentencing judge also observed that the applicant’s criminal history was dated and largely concerned with nuisance-type offences.  Further, the applicant had a stable relationship, children and his own business.  That business employed several staff and imprisonment was likely to adversely affect that business, leading to its collapse and the loss of employment for the staff, as well as financial hardship for the applicant’s family.  The applicant also had health problems which were likely to make time in jail more onerous.
17. [17]
    The sentencing judge recorded that notwithstanding those factors, the statute required that a sentence of actual imprisonment be imposed unless the circumstances of the case were exceptional.  In considering that question, factors in the applicant’s favour were the pleas of guilty, although of less value than in the case of an early plea, the fact that the offending was less serious than many examples of that kind of offending which come before the court, the likely negative impact of incarceration upon his business and family and the consequences of incarceration to the applicant, having regard to his medical conditions.  As against that, the offending involved two different offences against a very young girl, with no real explanation for the conduct, no indication of rehabilitation and no genuine indication of insight or remorse.
18. [18]
    The sentencing judge found that weighing those matters, the case was not exceptional, looking at the conduct in comparison to comparable authorities, the sentencing judge imposed concurrent sentences of imprisonment for 6 months, to be suspended after serving 2 months for an operational period of 6 months.

Consideration

Ground 1

19. [19]
    The applicant submitted that the sentencing judge failed to take into account the delay of approximately two and a-half years between the commission of the offences and sentence.  It was submitted that that delay was relevant as the applicant’s liberty had been curtailed for a long time, leading to uncertainty about his future, there had been an absence of any re-offending demonstrating a low risk of re-offending and good prospects of rehabilitation, there had been bail compliance consistent with a conclusion that personal deterrence did not feature, and there had been a negative impact on the applicant’s mental health.  It was submitted that the sentencing judge’s finding that there was “no indication of rehabilitation” failed to appreciate that the significant period of no offending whilst on bail showed rehabilitative promise and that the applicant was a low risk of further offence.
20. [20]
    A consideration of the sentencing remarks supports a conclusion that there was no such failure.  Further, there was no error in the sentencing judge’s observation that there was no indication of rehabilitation.
21. [21]
    Any delay in sentencing occurred in circumstances where the applicant had not merely had a prior trial listing that had not been reached.  There had been a pre-recording of the complainant’s evidence, during which it was put to the complainant that the offences did not take place, there had also been a further trial listing, with pleas only entered close to that listed hearing.  In those circumstances, a delay of two and a-half years cannot be said to be significant.
22. [22]
    Further, there was no evidence of rehabilitation.  The applicant only entered pleas of guilty shortly prior to trial and had previously put to the complainant a complete denial of the offending.  The change in factual circumstances agreed by the prosecution prior to the pleas being entered were not significant.  There was no explanation offered for the offending and no indication that the applicant had sought any professional assistance to address the circumstances of the offending.
23. [23]
    The sentencing judge’s conclusion that the pleas of guilty were not indicative of insight or genuine remorse was also apposite.  Having regard to the previous positive assertion to the complainant, in evidence, that the offences did not occur, the pleas were not indicative of insight or genuine remorse.  They were consistent with an acceptance that the case was a strong case.  Not only was there a prompt complaint, there was a consistency between the preliminary complaint evidence and the account given by the complainant to police.  There was also an eyewitness account, from the complainant’s mother, of witnessing the applicant pulling up his pants, whilst her daughter had her dress raised above her underwear.

Ground 2

24. [24]
    The sentencing judge correctly observed that there was no precise formulation for what amounts to exceptional circumstances and that it required a consideration of the particular circumstances to determine whether they constituted an exceptional case.
25. [25]
    The applicant submits that the low level offending was a factor in itself, which may have led to a finding of exceptional circumstances, and when combined with the pleas of guilty, rehabilitative prospects and low risk of re-offending, the sentencing judge erred in finding that there was not exceptional circumstances.
26. [26]
    Whilst it is correct that the applicant’s offending was of short duration and did not involve any physical touching of the child, the applicant’s offending conduct was serious.  The child was very young.  The offending occurred in her own home.  It involved not only the applicant exposing himself to the child, but also asking the child to expose herself to him.  Those circumstances could not be said to be so low level as to warrant a finding of exceptional circumstances in themselves.
27. [27]
    Further, the applicant’s pleas of guilty were late, occurred after there had been a positive denial of the offending conduct put to the child and where there was no evidence placed before the court of any steps taken by the applicant to seek to address the circumstances which led to such disturbing behaviour.  There was also no evidence supportive of insight and genuine remorse.
28. [28]
    Against that background, notwithstanding the significant consequences of actual imprisonment to the applicant, his family, his business and the employees of that business, the finding that there were not exceptional circumstances was correct.

Ground 3

29. [29]
    To succeed on this ground, it is not sufficient for the applicant to establish that the sentence was different or even markedly different from comparable decisions.  The applicant must establish that the sentence imposed was so different as to warrant a conclusion that there must have been a misapplication of principle, or a finding that the sentence imposed was plainly unreasonable or unjust.^[1]
30. [30]
    Once it is accepted that there was no error in the conclusion that exceptional circumstances were not established, there is no basis upon which to conclude that concurrent sentences of 6 months’ imprisonment for each count, suspended after serving 2 months for an operational period of 6 months, were manifestly excessive.
31. [31]
    The applicant’s offending was serious.  The child was extremely young.  There was no evidence of insight or genuine remorse.  Further, the sentences imposed were consistent with comparable authority.
32. [32]
    Against that background and having regard to a requirement that the applicant serve actual time in custody, absent a finding of exceptional circumstances, the sentences fell within a sound exercise of the sentencing discretion.
33. [33]
    Such sentences do not evidence any misapplication of principle.  They are neither plainly unreasonable, nor unjust.

Conclusions

34. [34]
    As the applicant is unable to establish any of the proposed grounds of appeal, a grant of leave to appeal sentence would be futile.

Orders

35. [35]
    I would order that:

1. The application for leave to appeal sentence be refused.
2. A warrant issue, such warrant to lie in the Registry for 24 hours to allow the applicant to first surrender himself into custody.

36. [36]
    DOYLE JA:  I have read and agree with the reasons for judgment of Boddice JA and with the orders proposed by his Honour.

37. [37]
    CROWLEY J:  I agree with Boddice JA.