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R v Schenk; ex parte Attorney-General[2016] QCA 131

R v Schenk; ex parte Attorney-General[2016] QCA 131





R v Schenk; Ex parte Attorney-General (Qld) [2016] QCA 131



SCHENK, Mark Anthony


CA No 244 of 2015

MC No 11068 of 2015


Court of Appeal


Sentence Appeal by Attorney-General (Qld)


Magistrates Court at Ipswich – Date of Conviction: 10 September 2015


13 May 2016




12 April 2016


Margaret McMurdo P and Gotterson and Morrison JJA

Separate reasons for judgment of each member of the Court, each concurring as to the order made


Appeal dismissed.


CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the respondent pleaded guilty to facilitating the procurement of a person whom he believed to be under the age of 16 with intent to engage in a sexual act – where the person was in fact a specialist police officer who posed as a 14 year old girl – where the charge was dealt with summarily at the Magistrates Court at Ipswich – where the respondent was sentenced to four months’ imprisonment wholly suspended for an operational period of 18 months – where the Attorney-General of Queensland exercised the right given by s 669A(1)(b) of the Criminal Code (Qld) to appeal to the Court of Appeal, alleging: (1) the sentencing magistrate failed to apply properly the requirements of s 9 of the Penalties and Sentences Act 1992; and (2) the sentence imposed is manifestly inadequate as to both head sentence and suspension in the sense referred to in the last category of discretionary error described in House v The King – where no reference was made for the need for exceptional circumstances if an actual term of imprisonment was not to be imposed by way of sentence – whether the sentencing magistrate failed to have proper regard to s 9 – whether, in any event, exceptional circumstances exist so as to relieve the respondent of an actual term of imprisonment – whether, if appealable error is located, any reason why the residual discretion not to interfere with the sentence is negated

Criminal Code (Qld), s 218B

Penalties and Sentences Act 1992 (Qld), s 9

CMB v Attorney-General (NSW) (2015) 89 ALJR 407; (2015) 243 A Crim R 282; [2015] HCA 9, applied

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited

R v Bedeau [2009] QCA 43, cited

R v Burdon; ex parte Attorney-General (Qld) (2005) 153 A Crim R 104; [2005] QCA 147, cited

R v Campbell [2004] QCA 342, cited

R v Hays (2006) 160 A Crim R 45; [2006] QCA 20, cited

R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489, applied

R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, considered

R v Kennings [2004] QCA 162, cited

R v McGrath [2006] 2 Qd R 58; [2005] QCA 463, considered


M R Byrne QC, with J T Aylward, for the appellant

J J Allen QC for the respondent


Director of Public Prosecutions (Queensland) for the appellant

Legal Aid Queensland for the respondent

[1] MARGARET McMURDO P:  I agree with Gotterson JA’s reasons for refusing this Attorney-General’s appeal against sentence.  This was a borderline case where different judicial officers could have reached different conclusions as to whether there were exceptional circumstances under s 9(4) Penalties and Sentences Act 1992 (Qld) so that an actual term of imprisonment need not be served.  For the reasons identified by Gotterson JA at [45] together with the applicant’s plea of guilty, co-operation, remorse, promising rehabilitative prospects, lack of prior convictions and that the offence was committed upon an adult impersonating a 14 year old child so that no specific victim has suffered harm, I am persuaded there were exceptional circumstances under s 9(4).  I emphasise that whilst one or even some of these factors in combination may not constitute exceptional circumstances, it is the particular circumstances of all those factors in combination that satisfies that description.[1]

[2] I agree with orders proposed by Gotterson JA.

[3] GOTTERSON JA:  On 10 September 2015 at the Magistrates Court at Ipswich, Mark Anthony Schenk pleaded guilty to an offence against s 218B(1)(a) of the Criminal Code (Qld) (“the Code”).  The charge against him was that between 17 and 22 February 2015 he, being an adult, engaged in conduct in relation to a person whom he believed to be under the age of 16 years with intent to facilitate the procurement of the person to engage in a sexual act in Queensland.

[4] After hearing submissions from the prosecutor and Mr Schenk’s solicitor, the presiding magistrate convicted Mr Schenk and sentenced him to four months’ imprisonment wholly suspended for an operational period of 18 months.

[5] On 9 October 2015, the Attorney-General of Queensland exercised the right given by s 669A(1)(b) of the Code to appeal to this Court against the sentence.[2]  Mr Schenk is the respondent to the appeal.

Circumstances of the offending

[6] The sentencing proceeded upon a Schedule of Facts[3] from which the following circumstances are drawn.

[7] The respondent accessed an adult internet dating site.  There, he “met” a specialist police officer who posed as a 14 year old girl.  The fictional child had a first name of “Ashleigh”.  The respondent did not know that Ashleigh was under 16 years of age.  Based on the online profile provided by the website, he thought that she was 18 years old.  He told her his mobile phone number, expecting she would contact him.  Ten days later, she messaged him at about 5.40 pm.  The two conversed via text messages for a little over two and a half hours.

[8] In the initial stages of that conversation, Ashleigh indicated that she was a 14 year old.  The respondent’s reaction, in part, was to say “… well looks like we can chat but that’s about it … I’m a naughty man but cannot afford that sort of trouble”.  He said he had had a few drinks and that he would get “a little horny when drunk”.

[9] Later, the respondent initiated the idea that Ashleigh send him a photo of herself.  When she asked what sort of photo, he intimated one of her vagina by replying “um … goes meow”.  A generic photo of a young woman in a bathing costume in a swimming pool was sent to him.  During the ensuing conversation, the respondent sent to Ashleigh a photo of himself bare chested.  He continued to say she was pretty and asked for a photo with “a higher rating” and explained that he wanted to see “straight up pussy”.  A generic photo of a young woman’s genital area clothed in pink underpants was sent to him.  He responded “[v]ery sexy as … pity nothing exposed …” and sent Ashleigh a close up image of his erect penis.  He asked her to return an image of herself that was “completely naked”.  After sending an image to him showing a young female’s breasts, Ashleigh terminated the contact.

[10] Three days later, Ashleigh texted the respondent at about 9.20 am.  She initiated small talk and then asked him if he still wanted to talk to her even though she was only 14 years old.  He said that they could chat but she was “a little bit too young for what I want.”  Later in the conversation, the respondent suggested that they should meet.  Despite some reluctance on Ashleigh’s part, the respondent persisted.  He texted “I’m almost tempted … I secretly still want a front on vag pic lol … no clothes”, and later went on to suggest that he would take a photo of the two of them having sexual intercourse.

[11] The text conversation continued with the respondent describing in considerable detail the sexual acts that he would like Ashleigh to perform on him and he to perform on her.[4]  She indicated that she had never done those kinds of things before.  The respondent sent another photo of his erect penis.  He suggested that Ashleigh could travel either to a train station or to his house so that they could meet.  Ashleigh terminated the conversation after about four hours.

[12] About two hours later, Ashleigh texted the respondent to say that she would be at Goodna railway station just after 11 am on the following day.  Through a series of further text messages, they arranged to meet.  However, at about 11 pm that evening, the respondent texted Ashleigh to cancel the meeting.

[13] At 7 am on the following day, the respondent texted Ashleigh to say that he had decided they should meet after all and suggested a different train station near his house.  He said that they could stay on the station platform in front of the cameras but “if you start getting curious we can dawdle in the park … which is a 5 mins walk from there”.  After some minutes, Ashleigh offered to meet the respondent at a third railway station in the Ipswich CBD, about a 30 minute walk from his house.  At 10.10 am she texted the respondent to say that she had arrived at the station and was waiting for him outside the Woolworths supermarket on the Ipswich mall.  He was apprehended by police about 40 minutes later.

[14] The respondent participated in an interview with police in which he downplayed the nature and extent of his text conversations with Ashleigh.  He admitted to believing she was 14 years old and to knowing that it was an offence to engage in sexual activity with a child of that age.  He said that he was initially trying to avoid it and did not know why he relented.  He was “drunk and lonely” and curiosity got the better of him.

The respondent’s personal circumstances

[15] The respondent was 28 years old at the time of the offending. He had no prior convictions. He had been involved in a motor vehicle accident and experienced a relationship break up in the December preceding the offending.

[16] The respondent had a modest employment record.  He had been the manager of a bottle shop where, several months prior to being sentenced, he had been the victim of a robbery and thereafter had ceased that employment.  He had refrained from seeking further employment because of the possibility that he might have to spend some time in prison.[5]

[17] A report prepared by Dr V Kovacevic, consultant psychiatrist, was tendered at the hearing.[6]  It noted that the offending occurred when the respondent was lonely, drunk and otherwise intoxicated by cannabis.  He did not exhibit any diagnosable psychiatric conditions.  In those circumstances, Dr Kovacevic thought that he was unlikely to require any extensive psychological treatment or rehabilitation programs.

Sentencing remarks

[18] The sentencing magistrate noted the respondent’s early plea.  She recounted the circumstances of his offending.  She expressed the view that Ashleigh sent “mixed messages”.  She claimed to be inexperienced; yet she was the one who initiated contact twice after she had terminated the first conversation and sent images to which the respondent reacted.  Reference was made to Dr Kovacevic’s opinion, to the respondent’s work history, and to certain references which indicated that he was otherwise a person of good character.

[19] Her Honour had been provided by the prosecutor with the decisions of this Court in R v Kennings[7] and R v Campbell.[8]  She noted that through her own research, she had located the decisions in R v Burdon; ex parte Attorney-General (Qld),[9] R v McGrath,[10] and R v Hays.[11]  Reference was made by her Honour to the circumstances in Kennings, Campbell, McGrath and Hays and to the sentences imposed in those cases, namely, 18 months’ imprisonment suspended after three months in the first two of them and in Hays, and four months suspended after six days in McGrath.

[20] The sentencing magistrate concluded her remarks with the following:

“… [Dr Kovacevic] does not think that you require any extensive psychological treatment or that you are someone who would continue to commit offences of this nature and that your judgment was clouded by alcohol and that you expressed that you were drunk and lonely.  It’s also another, I think, redeeming feature about all of this.  Quite a lot of this seems to be conversation about yourself being lonely, what you were doing.  It doesn’t seem to have that flavour of being aggressive and predatory, that that is the only reason you are communicating with this person.  And again, you’ve seemed apprehensive about your behaviour.

In any case, you’ve made the stupid decision over the course of that – those five days – in particular, that last 26 hours – to engage in this sort of conduct.  I take into account the Penalties and Sentences Act, the purposes for which sentence must be imposed.  And because this is an offence under section 9, subsection (5) and (6), a term of imprisonment should be imposed.  There are some very much mitigating factors which I find distinguish you from the other cases that have come before the Court.  I think I’ve already put those on the record, however just to summarise: firstly, this girl was 14, not 13.  You initially met on an adult website.  You weren’t trawling the internet looking for chat-rooms with young girls.  She initiated the contact off the website.  I don’t accept the proposition that she was coming across to you as being innocent and naïve.  Had she been innocent and naïve, I don’t think it would have escalated to this point.  She came across as, to me, sending you very mixed messages about her maturity and what she was prepared to do.  And I say that particularly because of the images that she sent you very quickly over that three-hour period.

So those mitigating features, to me, persuade me that any term of imprisonment should be wholly suspended to allow you to remain in the community.  Had there been more than one charge, I would also have been persuaded to have given you some sort of community-based order to allow you to continue to see a psychologist to treat your depression and any issues that may continue with alcohol or drugs.  So all up, in respect of the sentences, I do think a term of imprisonment should be imposed.  General deterrence – and it sort of looms large in a sentence such as this.  Certainly, defending – people in the community must be deterred from corrupting children who don’t know better.  But for the reasons I’ve already outlined, I am persuaded that that term of imprisonment should be wholly suspended.

Take – weighing up all the factors, you are convicted and sentenced to four months’ imprisonment wholly suspended for the next 18 months. …”[12]

The appeal

[21] The stated ground of appeal is that the sentence imposed is manifestly inadequate.  However, the appellant’s submissions advance what are two independent grounds of appeal.  They are that:

(i) the sentencing magistrate failed to apply properly the requirements of s 9 of the Penalties and Sentences Act 1992 (“the P&S Act”); and

(ii) the sentence imposed is manifestly inadequate as to both head sentence and suspension in the sense referred to in the last category of discretionary error described in House v The King.[13]

[22] The respondent submits that there was no error in sentencing: s 9 was addressed and, in terms of House, the sentence imposed is not “unreasonable or plainly unjust”.  Alternatively, if the sentencing magistrate did err, the appellant has failed to discharge the onus of satisfying this Court that it ought not exercise its residual discretion to dismiss the appeal.

Ground 1

[23] At the time of the respondent’s offending and sentencing, ss 9(4), (5) and (6) of the P&S Act were in their current form.  They provide as follows:

“(4)In sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years, the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.

(5)For subsection (4), in deciding whether there are exceptional circumstances, a court may have regard to the closeness in age between the offender and the child.

(6)In sentencing an offender to whom subsection (4) applies, the court must have regard primarily to—

(a)the effect of the offence on the child; and

(b)the age of the child; and

(c)the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and

(d)the need to protect the child, or other children, from the risk of the offender reoffending; and

(e)the need to deter similar behaviour by other offenders to protect children; and

(f)the 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; and

(g)the offender’s antecedents, age and character; and

(h)any remorse or lack of remorse of the offender; and

(i)any medical, psychiatric, prison or other relevant report relating to the offender; and

(j)anything else about the safety of children under 16 the sentencing court considers relevant.”

The expression “actual term of imprisonment” is defined to mean “a term of imprisonment served wholly or partly in a corrective services facility”: s 9(13).

[24] In McGrath, this Court had decided that an offence against s 218A of the Code was an offence which met the statutory descriptor then used in s 9(5) of the P&S Act of an “offence of a sexual nature committed in relation to a child under 16 years”, regardless of whether the recipient of the offender’s communication was an actual child under 16 years of age or not.[14]  Section 218A, which was enacted in 2003,[15] is concerned with the use of the internet or other forms of electronic communication with intent to procure children under 16 years of age for a sexual purpose.  Section 218B, enacted in 2013,[16] is concerned with grooming children under that age.

[25] The reasoning in McGrath on this point is applicable to s 218B notwithstanding a slight difference in wording between the two sections.  Its cogency for present purposes is assured by the express provision in s 218B(6) that, for the offence for which the section provides, it does not matter that the person believed to be under 16 years of age is a fictitious person represented to the adult offender as being a real person.[17]  Indeed, the respondent makes an appropriate concession that s 9(4), which now contains the same statutory descriptor, applied to his sentencing.[18]

[26] Section 9(4) required that the respondent serve an actual term of imprisonment unless there were exceptional circumstances.  The wholly suspended sentence that was imposed is not one that requires him to serve an actual term of imprisonment as that expression is defined.

[27] The sentencing magistrate did not refer to s 9(4) or to its terms in the course of her sentencing remarks.  No reference was made for the need for exceptional circumstances if an actual term of imprisonment was not to be imposed by way of sentence.  Nor did her Honour discuss whether any particular circumstance or circumstances might satisfy the exception for exceptional circumstances in the provision.  The applicant submits that these features of the sentencing remarks indicate that her Honour failed to have regard for the provisions of s 9(4) and, in that way, erred in sentencing the respondent.

[28] For the respondent, it is submitted that because the sentencing magistrate referred to ss 9(5) and (6), she must have been cognisant of the requirements of s 9(4) and, further, that it is to be inferred that she must have concluded that there were exceptional circumstances within the meaning of s 9(4) which displaced the requirement for service of an actual term of imprisonment.[19]  It is the more easy to draw the inference, it is suggested, in light of decisions of this Court that s 9(4) does not introduce a two stage process in which the sentencing judicial officer first decides whether or not exceptional circumstances exist.[20]

[29] I am unable to accept the respondent’s submissions for the following reasons.  It is, I think, quite clear from a consideration of the transcript of the submissions at sentence that the sentencing magistrate did not have regard for s 9(4).

[30] The prosecutor did not expressly refer to that section or to its provisions.  She did make the observation that “obviously, in offences such as this the principle that imprisonment is a sentence of last resort does not apply”.  That observation was unhelpful.  Insofar as it may have implied that there were other offences to which such a principle applied, it was wrong because a principle to that effect, which had been enacted as s 9(2)(a)(i) in the P&S Act, had been repealed in 2014.[21]  Had it been intended as an allusion to s 9(4), it was deficient in not referring to the provisions of the section, including the exception.

[31] Moreover, the observation served to firm in the sentencing magistrate’s mind that the applicable version of the P&S Act was one that contained such a principle in s 9(2).  So much is revealed by her Honour’s enquiry of the respondent’s solicitor whether he accepted that s 9(2) did not apply, to which the solicitor replied in the affirmative.[22]

[32] That enquiry was evidently prompted by an earlier version of s 9(5) which had provided that the principles mentioned in s 9(2)(a) did not apply to the sentencing of an offender for any offence of a sexual nature committed in relation to a child under 16 years.  That version of s 9(5) did not have any requirement for service of an actual term of imprisonment.  Section 9(6), at that time, was similar to its present form but contained the introductory words “[i]n sentencing an offender to whom subsection (5) applies”.  These were the versions of ss 9(5) and (6) respectively which her Honour apparently had in mind when she referred to those provisions in the sentencing remarks which I have cited.  They were the versions which applied when McGrath was decided.  They appear in the headnote to the authorised report of that decision.[23]

[33] A requirement that an offender for an offence of a sexual nature committed in relation to a child under 16 years serve an actual term of imprisonment unless there are exceptional circumstances, was first enacted in 2010 in a reformulated s 9(5), specifically as s 9(5)(b).[24]  In turn, s 9(5)(b) was enacted as s 9(5) and renumbered as s 9(4), and amendments were made to the remnant s 9(5A), which was renumbered as s 9(5) and to s 9(6) to refer to “subsection (4)”.[25]  This history of legislative changes appears to have been overlooked in this instance.

[34] It has been accepted by this Court that a finding whether exceptional circumstances exist is but one part of the overall process of “instinctive synthesis” described by McHugh J in Markarian v The Queen[26] whereby each of the factors relevant to the sentence are identified and then weighed before a value judgment is made as to a sentence which is, in all of the circumstances of the case, appropriate.[27]  That task is one which, of course, must be undertaken with a conscious regard for the terms of the relevant statutory provision which requires a finding as to exceptional circumstances to be made.

[35] The failure of the sentencing magistrate to have regard to the provisions of s 9(4) was an error of law.  It was a version of the first category of error described in House.  Consistently with the decision of the High Court in Kentwell v The Queen,[28] the jurisdiction of this Court to vary the sentence and impose such sentence as to it seems proper is enlivened on that account.  Unless this Court, in the separate and independent exercise of its discretion, concludes that no different sentence should be imposed, the appeal must be allowed and a new sentence imposed.[29]

Ground 2

[36] The jurisdiction under s 669A(1) having been enlivened by the error on which Ground 1 is based, it is unnecessary to consider the separate error alleged in Ground 2 as a source of jurisdiction in this case.  That is one reason for not deciding whether this ground is made out.  There is a second reason to which I shall refer in due course.

[37] In developing an argument that the sentence imposed is manifestly inadequate, the appellant criticised the distinction drawn by the sentencing magistrate between a 13 year old child and a 14 year old child as one of no real moment.  Reliance was placed upon the circumstance that the respondent was not merely led on, his lurid descriptions of the acts that he wished to engage in with Ashleigh, his participation in making arrangements to meet, and his actual attendance at the pre-arranged meeting venue.

[38] Reference was made to Kennings, Campbell, Burdon and McGrath.  The respondent was given a sentence comparable with that of the offender in McGrath.  That offender had communicated over a period of two months with two persons whom he believed to be 13 year old girls.  Whilst there was sexually explicit conversation, he, like the offender in Kennings, did not send any explicit images to the girls.  Conversation about possible meetings never materialised into anything.  He had engaged in significant efforts at rehabilitation.  The sentence imposed of four months’ imprisonment was modified by this Court to continue the rehabilitation without the interruption of imprisonment, by suspending the sentence after six days imprisonment that he had served.

[39] Reference was also made to the decision of this Court in R v Bedeau.[30] At a trial, the offender was convicted of two counts of using the internet to procure a child to engage in a sexual act and one count of using the internet with intent to expose a child to an indecent act.  He was sentenced on each count to 18 months’ imprisonment with no provision for early release.  This Court varied the sentence to order suspension after six months with an operational period of three years.  This offender communicated with a police officer who posed as a 14 year old girl.  There were three conversations, the second of which was initiated by the child but quickly moved to a sexually lurid discourse at the offender’s initiative.  He offered to engage in sexual conduct.  A meeting was arranged but did not take place.  A further similar conversation took place on the following day.  The offender attempted to arrange another meeting and sent photographs depicting adults engaged in sexual activity.  Communication ceased when the offender deduced that it was a police officer pretending to be his correspondent who had left a telephone message for him.

[40] The Court was informed that each of the cases referred to by the appellant was decided at a time prior to enactment of the statutory antecedent to s 9(4).  Each involved a procuring offence or offences under s 218A of the Code at a time when the maximum penalty was five years’ imprisonment.[31]  For the respondent’s offending, the maximum penalty is five years’ imprisonment, there being no circumstance of aggravation alleged against him.  However, because the charge was dealt with summarily, the maximum sentence that the sentencing magistrate could have imposed was three years’ imprisonment.

[41] It follows that in none of those cases was the sentencing judge or this Court required to consider whether exceptional circumstances existed.  However, that would not, of itself, necessarily limit their utility for comparative purposes in any assessment of whether the sentence imposed at first instance was manifestly inadequate.  But what is significant is that the result of any such assessment would be of limited utility for the task that this Court now has to undertake.  That is so because the range of circumstances to be taken into account by this Court in finding whether exceptional circumstances exist differs significantly from that which the sentencing magistrate would have had to consider.  The differences are elaborated in the discussion of discretionary matters which follows.

[42] The limited utility to which I have referred provides the second reason.  In these circumstances, I consider it unnecessary to express a concluded view with respect to Ground 2.

Discretionary matters

[43] A consideration by this Court of a just sentence that might be imposed in the applicant’s case necessarily requires, as part of the overall process, a finding to be made as to whether exceptional circumstances exist in the respondent’s case.  The term “exceptional circumstances” is not defined for the purposes of the P&S Act; nor is it a term of art with its own ascertained meaning within a legal context.

[44] To my mind, the term comprehends a consideration of the full range of circumstances relevant to the sentencing of the offender and a determination of whether, within that range, there are circumstances, or a combination of circumstances, that qualify as exceptional.  Specifically, in my view, the range includes, but is not limited to, the acts or neglects that constitute the offence or offences for which the offender is being sentenced.  Where the issue is considered by an appellate court for re-sentencing purposes, it may include the sentencing process itself and relevant events thereafter.

[45] The respondent’s circumstances are unique in that when he was sentenced, the sentencing magistrate was not referred to, and did not have regard for, an important provision of the applicable statutory regime.  Had that provision been heeded, the respondent might have been sentenced to actual time in prison.  Beyond that, he has had to live with the uncertainty of a pending appeal in which the appellant presses for a term of actual imprisonment.  Since being sentenced, the respondent has complied with the reporting conditions attached to his sentence.[32]  He attained a Certificate III in Hospitality on 3 February 2016; he has obtained placements through the Work for the Dole program; and he has undertaken labouring work.[33]  His unchallenged evidence is that since being sentenced, he has not used illicit drugs and has consumed alcohol in moderation.[34]

[46] In my view, these factors characterise the respondent’s circumstances as exceptional.  Insofar as they involve professional lapses at his sentence, they are, one would hope, unprecedented.  These factors are apt to constitute exceptional circumstances within the meaning of s 9(4) as would dispense with the requirement that an actual term of imprisonment be served by the respondent.

[47] At the heart of this appeal is the appellant’s proposition that the respondent’s sentence should be varied so as to require him to serve an actual term of imprisonment.  The presence of exceptional circumstances that would dispense with such a requirement is relevant to the exercise of the discretion whether to vary the respondent’s sentence.

[48] The recent decision of the High Court in CMB v Attorney-General (NSW)[35] concerned an Attorney-General’s appeal against non-custodial sentences imposed on an offender for child sexual assault offences.  The Attorney-General appealed under s 5D of the Criminal Appeal Act 1912 (NSW) which is enacted in terms relevantly comparable to those of s 669A of the Code.  In speaking of s 5D, French CJ and Gageler J observed:

[32]Section 5D of the Criminal Appeal Act serves the dual function of conferring capacity on the Attorney General or the DPP to appeal against a sentence pronounced by a court of trial in proceedings to which the Crown in right of New South Wales was a party, and of conferring power on the Court of Criminal Appeal in such an appeal to impose a different sentence.  That power is conferred by the concluding words of s 5D(1) in terms that ‘the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper’.

[33]Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as ‘residual’ ought not to be misunderstood.  To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust.[36]  The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met.  Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised.”

[49] Their Honours[37] then cited with approval the following statement by Heydon JA in R v Hernando:[38]

“[I]f [the Court of Criminal Appeal] is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles.  The first is to locate an appellable error in the sentencing judge’s discretionary decision.  The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.”

This statement was also cited by Kiefel, Bell and Keane JJ in CMB[39] and given their approval.[40]

[50] In this appeal, by success on Ground 1, the appellant has surmounted the first hurdle of which Heydon JA spoke.  The second hurdle is to negate any reason why the residual discretion not to interfere, as understood, should be exercised.

[51] I would accept a submission made for the appellant that, absent exceptional circumstances, the actual term of imprisonment mandated by s 9(4) is a powerful consideration against exercise of the discretion not to interfere.[41]  However, where there are exceptional circumstances, that consideration loses its force.

[52] Here, to surmount the second hurdle, the appellant need persuade this Court why the respondent’s sentence should be varied notwithstanding the exceptional circumstances.

[53] The task confronting the appellant is the more challenging when account is taken of the undesirability of which Fraser JA spoke in R v Hopper; Ex parte Attorney-General (Qld)[42] of correcting a sentence on appeal by imposing a relatively short period of actual custody when to do so would interrupt the rehabilitation and reintegration into society upon which an offender, particularly a youthful and psychologically vulnerable one, had embarked.  Although this respondent is neither youthful nor psychologically vulnerable, he has responsibly complied with his reporting conditions, abstained from illicit drugs and pursued avenues of employment in the period since he was sentenced.

[54] In my view, for these reasons, the appellant has not surmounted the second hurdle.  I would therefore not vary the respondent’s sentence so as to require him to serve an actual term of imprisonment.  Nor would I vary the head sentence by substituting a longer term of imprisonment with none of it to be actually served.  There would not be much practical purpose in making such a variation.


[55] It follows that this appeal must be dismissed.  I would observe that this is a result which has come about, to a very significant extent, as a consequence of what happened at the sentence hearing, including the sentence then passed and its intervening impacts on the respondent.  I would caution that because it was unnecessary here to consider whether the sentence at first instance was manifestly inadequate having regard to the circumstances then to be considered by the sentencing magistrate, the outcome of this appeal ought not be taken as implicitly signalling that, in the opinion of this Court, the sentence imposed at first instance was not manifestly inadequate.


[56] I would propose the following order:

1. Appeal dismissed.

[57] MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the order his Honour proposes.


[1] R v BCX [2015] QCA 188, [1], [29] – [36] and [48].

[2] Notice of Attorney-General’s Appeal Against Sentence: AB25-26.

[3] Exhibit 1: AB19-22.

[4] The acts included her playing with his erect penis and penile penetration by him of her vagina.

[5] AB10 l45 – AB11 l6.

[6] Exhibit 3: AB23-24.

[7] [2004] QCA 162.

[8] [2004] QCA 342.

[9] [2005] QCA 147; (2005) 153 A Crim R 104.

[10] [2005] QCA 463; [2006] 2 Qd R 58, which her Honour identified sub nom R v CM.

[11] [2006] QCA 20.

[12] AB17 ll7-44.

[13] (1936) 55 CLR 499 at 505.

[14] Per Mackenzie J at [36], de Jersey CJ and Williams JA agreeing.

[15] Sexual Offences (Protection of Children) Amendment Act 2003 s 17, effective 1 May 2003.

[16] Criminal Law (Child Exploitation and Dangerous Drugs) Amendment Act 2013 s 19, effective 29 April 2013.

[17] This provision is analogous to s 218B(7).

[18] Respondent’s submissions paragraph 4.

[19] Respondent’s submissions paragraph 5.

[20] R v Theohares [2016] QCA 51 at [17], [18]; citing R v BCX [2015] QCA 188 at [35].

[21] Per the Youth Justice and Other Legislation Amendment Act 2014 s 34(1), effective 28 March 2014.

[22] AB9 ll3-5.

[23] Although it is not clear that her Honour had read the authorised report at that time.

[24] Per the Penalties and Sentences (Sentencing Advisory Council) Amendment Act 2010 s 5. At the same time, a provision equivalent to the current s 9(5) was enacted as s 9(5A) and the definition of “actual term of imprisonment” was inserted.

[25] Youth Justice and Other Legislation Amendment Act 2014 ss 34(5), (6) and (7), effective 28 March 2014.

[26] [2005] HCA 25; (2005) 228 CLR 357 at [50], [51].

[27] BCX at [35].

[28] [2014] HCA 37; (2014) 252 CLR 601 per French CJ, Hayne, Bell and Keane JJ at [35].

[29] Ibid, also per Gageler J at [42].

[30] [2009] QCA 43.

[31] Absent a circumstance of aggravation, it is now ten years’ imprisonment.

[32] Affidavit M A Schenk sworn 23 March 2016 paragraph 3.

[33] Ibid paragraph 7-9.

[34] Ibid paragraph 10.

[35] [2015] HCA 9; (2015) 243 A Crim R 282.

[36] Markarian v The Queen (2005) 228 CLR 357 at 371 [28]; [2005] HCA 25; Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at 581 [7]; [2009] HCA 13; 254 ALR 379 at 381; [2009] HCA 13, citing House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505; [1936] HCA 40; Bugmy v The Queen (2013) 249 CLR 571 at 597 [51]; [2013] HCA 37.

[37] At [34].

[38] [2002] NSWCCA 489; (2002) 136 A Crim R 451 at [12].

[39] At [59].

[40] At [66].

[41] Appeal Transcript 1-14 ll28-36.

[42] [2014] QCA 108; [2015] 2 Qd R 56 at [42], Boddice J agreeing.


Editorial Notes

  • Published Case Name:

    R v Schenk; Ex parte Attorney-General (Qld)

  • Shortened Case Name:

    R v Schenk; ex parte Attorney-General

  • MNC:

    [2016] QCA 131

  • Court:


  • Judge(s):

    McMurdo P, Gotterson JA, Morrison JA

  • Date:

    13 May 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment-10 Sep 2015Date of Sentence.
Appeal Determined (QCA)[2016] QCA 13113 May 2016Appeal dismissed: Margaret McMurdo P, Gotterson and Morrison JJA.

Appeal Status

Appeal Determined (QCA)

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