Since 1 November 2025 Queensland has had a victim-harm sentencing purpose. Paragraph (ca) of s 9(1) of the Penalties and Sentences Act 1992 (Qld) makes it a purpose of sentencing “to recognise the harm done by the offender to a victim of the offence”, sitting in the closed list of purposes between deterrence and denunciation. The question for anyone appearing on a sentence is whether it changes the arithmetic.
R v Ara [2026] QCA 190 is the first answer this firm has seen, and on these sentences it was no. The respondent relied on the new purpose to show that a sentence was not manifestly excessive, and that argument failed. Leave was granted and the applicant resentenced, which also makes the judgment a worked example of where the uplifted head sentence belongs when one count carries the criminality of 32 offences.
What the Court decided
The applicant was released from prison on 2 September 2024, aged 23, and from 10 October 2024 committed 32 offences against 25 victims over 12 days, at [1]. Only counts 3 and 29 were armed robberies in company with personal violence, the offences “otherwise generally” being burglaries, attempted burglaries, break and enters and stealing and unlawful use of motor vehicles, and no physical harm was caused to any complainant, at [35]. He pleaded guilty to all 32 offences on 4 June 2026 and was sentenced the next day, after 591 days in custody, to a total effective sentence of nine and one-half years with parole eligibility after six years. On 10 June 2026 the sentencing judge re-opened the sentence, specified a term for each count and nominated count 10 as carrying the nine and one-half years, at [2].
One ground was pressed and it was the applicant’s, that the sentence was manifestly excessive, with five particulars at [4]. Because it was framed by reference to the result of the alleged errors rather than the errors themselves, “it is not necessary for the applicant to establish one or more of the particulars”, at [54]. Mullins P, Thomson AJA and Davis J, in a single joint judgment, granted leave, allowed the appeal and resentenced by variation, at [73]. Count 29 was substituted at eight years and six months and count 10 at six years, most other terms were adjusted downwards, and eligibility for all counts was fixed at 21 April 2028 in substitution for 22 October 2030.
What the new victim-harm purpose added
The respondent put s 9(1)(ca) forward as “one matter … to justify the conclusion that the applicant’s sentence was not manifestly excessive”, at [64]. The answer is part of the reasoning by which the appeal succeeded, not an aside. The consideration is not new, because “it has always been a mandatory consideration for the court pursuant to s 9(2)(e) of the Act to have regard in sentencing an offender to any damage, injury or loss caused by the offender”, at [65]. The object of the amendment was visibility. It implemented recommendation 2 of the Queensland Sentencing Advisory Council’s report Sentencing of Sexual Assault and Rape: The Ripple Effect, and the Explanatory Note recorded that making harm an express purpose “aims to enhance visibility of the recognition of the harm to victims in the sentencing process”, at [66]. What follows is an option rather than an obligation. The amendment “would now give the option to the sentencing judge, where s 9(1)(ca) is applicable, to refer to that as one of the purposes of sentencing the particular offender, even though harm to a victim has always been a mandatory consideration”, at [67].
Then the conclusion, and it is carefully confined. The insertion is consistent with the existing purposes of deterrence, denunciation and community protection in paragraphs (c), (d) and (e), which the sentencing judge had relied on, and “the need for the applicant’s sentences to recognise the harm to his victims does not add anything in the context of the other purposes of sentencing that covered the existing mandatory consideration of recognition of the harm to victims”, at [68]. That is a conclusion about these sentences and the purposes that applied to them. The Court did not decide that the paragraph can never affect a sentence, and it did not identify a case in which it would.
Where the uplift belongs
Both parties had urged the course in R v Nagy [2003] QCA 175, imposing a sentence on the most serious offence to reflect the overall criminality with the others concurrent, and the sentencing judge adopted it, at [50] and [55]. As McMurdo P observed in R v Bowditch [2014] QCA 157 at [2], that avoids the complications of cumulative sentences and is less prone to offend the totality principle. The Court accepted the approach and corrected its application. At [71] it held that “the sentence structure requires some revision, because the most serious offence was count 29, rather than count 10”, count 29 being armed robbery in company with personal violence and count 10 burglary and stealing. Having regard to three comparable decisions, including R v Braeckmans [2022] QCA 25 as the more serious and R v Blenkinsop [2007] QCA 181, the two armed robberies “would have attracted imprisonment in the vicinity of five to six years for each offence had they been the only two counts for which the applicant was being sentenced on guilty pleas”, at [69].
There is a statutory trap in the judgment worth taking away from it. The sentencing judge said the totality warranted a sentence “in the vicinity of 10 years” and discounted to nine and one-half because “at 10 years, the automatic operation serious violent offender provisions would lock in and apply”, requiring 80 per cent to be served, at [47]. The Court found he “was mistaken”. Count 10 was burglary and stealing under s 419(5) of the Criminal Code (Qld), which is not a schedule 1 provision, so a 10 year sentence on it could not have carried a mandatory declaration, and “only counts 3 and 29 involved schedule 1 offences”, at [51]. The gateway in s 161A(a) is a conviction on indictment for a schedule 1 offence, or for attempting one under s 161A(a)(i)(B), plus a sentence of 10 or more years, and not the maximum penalty: s 419(5) carries life imprisonment and is absent from schedule 1. Read against the text of the schedule, the Court’s list of schedule 1 counts looks incomplete, although nothing turned on it. Count 26 was attempted burglary in the night, while armed, in company, under s 419(1), (3)(a), (3)(b)(ii), (b)(iii) and s 535, at [30], and item 44 of schedule 1 lists s 419(1) where s 419(3)(b)(ii) applies, so the attempt limb appears to reach it. Count 20 was dangerous operation of a vehicle under s 328A, at [27], which is item 32. Those counts carried four years and two years, well short of the 10 year threshold, so the correction to count 10 is unaffected. The appeal was not allowed on that mistake, and the Court attributed the revision of the structure to count 29 being the most serious offence. The point stands anyway, that the schedule decides and the maximum does not.
The pleas and the non-parole period
The sentencing judge had said the applicant would be given significant credit for pleading at the earliest occasion, at [45], and said he was reflecting the plea by reducing the head sentence, at [47] and [50], while fixing eligibility at six years of the nine and one-half. At [70] the Court held that the overall criminality meant six years for one armed robbery “must be increased significantly”, but that “it is difficult to see how a head sentence of nine and one-half years’ imprisonment to serve six years in actual custody before being eligible for parole reflects significant credit for those guilty pleas”. Having regard to the significant cooperation with the administration of justice, the prospects for rehabilitation shown by participating for a lengthy period in custody in a drug program, and the applicant’s age and background, “there was no justification for postponing the eligibility for parole past the mid-point of the sentence”. The sentence as structured was manifestly excessive and “unreasonable or plainly unjust”, in the words of House v The King (1936) 55 CLR 499, 505, even though the applicant was not seeking to show specific error, at [70].
Where the Court landed matters as much as the criticism. It took eligibility neither to the mid-point nor to one-third. “The reduction should not be as low as one-third, because of the aggravating circumstance that the subject offences were committed so soon after the applicant’s release from a long period in custody”, at [71]. Eligibility was fixed after “approximately 40 per cent” of the eight and one-half year head sentence, being three and one-half years in custody.
A parenthetical observation sits alongside this, considered obiter, and it matters for how material is put on a sentence. At [43] the Court said in parenthesis that the fact an offender’s drug addiction was an accepted cause of the offending “is not a matter of mitigation”. Instead, “material or submissions before a sentencing judge which show the willingness of a drug addicted offender to engage in programs to deal with the addiction” is relevant to the prospects for the offender’s rehabilitation, at [43]. The applicant had spent 14 months on the Opioid Substitution Program while on remand, at [44], which is among the matters relied on at [70].
How each point fared
| Point, and who advanced it | Outcome |
|---|---|
| Applicant’s sole ground: manifestly excessive, with five particulars at [4] | Succeeded and decided the application, at [70], [71] and [73]. No particular had to be established, at [53] and [54] |
| Respondent’s reliance on the new s 9(1)(ca) purpose to show the sentence was not manifestly excessive | Failed, at [68], on a conclusion confined to the other purposes of sentencing that already covered the recognition of harm |
| That the sentencing judge “was mistaken” about the serious violent offence consequence of 10 years on count 10, at [51] | An express finding, but not the basis on which the appeal was allowed. Revision of the structure was attributed to count 29, at [71] |
| That a drug addiction accepted as a cause of offending is not a matter of mitigation, at [43] | Considered obiter, in a parenthesis about the mitigating factors listed below |
| Whether any particular independently established appealable error | Not decided. The appeal was allowed with the applicant “not seeking to show specific error”, at [70] |
Published 20 October 2026.
What this leaves open
The question the judgment does not answer is what s 9(1)(ca) adds where the other purposes relied on do not already cover the recognition of harm. The conclusion at [68] is tied to the position where they did, and no example of the other case was given. Two narrower questions remain. The Court corrected the schedule 1 position as it applied to count 10 and resentenced on the manifest excess of the structure imposed, without considering whether a head sentence of 10 years or more was open on count 29, which is a schedule 1 offence. And “his age and background” at [70] is not expanded. The reasons record that the applicant is a Torres Strait Islander and is functionally illiterate, and that brief submissions on social disadvantage made below in reliance on Bugmy v The Queen [2013] HCA 37 were “not a submission that was pursued in this Court”, at [42].
Related reading
- R v Johnson: the pre-sentence custody declaration must be made even when no time counts
- Farrugia v The King: shared counsel and co-offenders on sentence
- R v Saghir: what the statutory ban on Markuleski directions actually prohibits
- Criminal law at Fraser Lawyers
Source: R v Ara [2026] QCA 190, Supreme Court of Queensland, Court of Appeal, Mullins P, Thomson AJA and Davis J, heard 9 September 2026 and delivered 29 September 2026, on a sentence application from the District Court at Brisbane, sentenced 5 and 10 June 2026 (Haddrick ADCJ). The provisions were checked against the current compilation, and paragraph (ca) was confirmed absent from s 9(1) as in force on 31 October 2025. The legislation list in the catchwords cites “Criminal Code (Qld), s 9(2)(ca)”; the reasons at [64], [67] and [68] put the paragraph in s 9(1) of the Penalties and Sentences Act 1992 (Qld), the compilation confirms it, and the reasons govern. The Court considered six comparable decisions at [57] to [63]. Two are named here, being the two the Court relied on at [69] whose citations were verified against a primary source for this note; the third decision relied on at [69] is not named because its citation could not be verified. Schedule 1 was checked as in force at the time of the offending and as currently in force.
Facing sentence in Queensland on multiple charges? Which count carries the head sentence, and what is put before the court about rehabilitation, can decide how long is actually served before parole is available. Contact Fraser Lawyers to discuss where you stand. |
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