R v Henshall[2025] QCA 20

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  For the reasons given by Williams J, I joined in the making of the orders on 13 February 2025.
2. [2]
   BODDICE JA:  The reasons for judgment of Williams J reflect my reasons for joining in the orders made by this Court on 13 February 2025.
3. [3]
   WILLIAMS J:  The Applicant, Daniel David Henshall, applied to the Court for leave to appeal the sentence imposed on 20 February 2024 on the ground that it was manifestly excessive.
4. [4]
   At the hearing on 13 February 2025, leave was granted for the notice of appeal to be amended to include an additional ground that the sentencing Judge erred in failing to give adequate reasons for the recording of a conviction.
5. [5]
   Following further oral submissions, the Court ordered:

   1. Leave to appeal against sentence is allowed.
   2. The appeal against sentence is allowed.
   3. The order made on 20 February 2024 in relation to count 1 on Indictment no 502 of 2023 is varied by substituting the words “the conviction” with the words “no conviction”.
   4. The Court will publish its reasons at a later date.
6. [6]
   These are the reasons for the orders made on 13 February 2025.

Conviction and Sentence

7. [7]
   On 18 December 2023 the Applicant was arraigned and convicted on Indictment 502 of 2023 in the District Court of one count of sexual assault pursuant to s 352(1)(a) of the Criminal Code (Qld) (Criminal Code), namely:

“that on the twentieth day of October, 2021 at Kelvin Grove in the State of Queensland, [the Applicant] unlawfully and indecently assaulted [the Complainant].”^[1]

8. [8]
   On 20 February 2024 the Applicant was sentenced in the District Court to probation for a period of 18 months, with a conviction recorded.
9. [9]
   The application for leave to appeal the sentence related only to the recording of a conviction.

Applicant’s antecedents and offending

10. [10]
    A feature of this case was the personal circumstances of the Applicant which included as follows:

    1. The Applicant was 35 years of age at the time of sentence.
    2. The Applicant has been in a wheelchair since the age of two when he had a paraspinal cancerous tumour removed from his cervical 3 level to thoracic 3 and subsequent chemotherapy.
    3. The Applicant was left with no sensation below his stomach, weakness in his left upper arm and is completely incontinent.
    4. The Applicant’s incontinence is managed with a catheter for his bladder, a MACE Stoma that allows for an enema to be administered to the colon to manage faecal cleanliness, and nappies or pads.
11. [11]
    The circumstances of the offending were dealt with in an Agreed Statement of Facts, which relevantly includes:

    1. On 20 October 2021, the Applicant was approached in the food hall at the Queensland University of Technology, Kelvin Grove Campus by the Complainant after he dropped something.
    2. At the time the Applicant was studying a Master of Philosophy, majoring in Entrepreneurship.
    3. The Complainant picked up the item dropped by the Applicant and gave it to him before returning to her seat at a table with friends.
    4. The Complainant’s friends left and then the Applicant approached the Complainant and struck up a conversation.
    5. The Applicant asked how old the Complainant was and she said she was 16 and in grade 11 at school.  In fact, the Complainant was 14 years old and lied about her age.
    6. The Complainant and the Applicant talked about her studies and his studies.
    7. The Applicant told the Complainant she was beautiful, cool and sexy.
    8. The Applicant intermittently touched the Complainant’s leg and thigh with a flat palm, sometimes moving his hand up and down her leg and sometimes leaving it on her leg before moving it off.
    9. Further, at times, the Applicant also touched his pants in the genital area.  At the sentence hearing, it was accepted that this act did not have a sexual aspect or relate to his arousal.  Rather, this act was to ensure that his catheter was properly attached.
    10. The Complainant felt uncomfortable but found it difficult to move away because of the positioning of the Applicant and his wheelchair.
    11. When a male friend came into the food hall, the Complainant stood up and moved away from the Applicant.
12. [12]
    In respect of the issue of about the Complainant’s age, the guilty plea proceeded on the basis that the Applicant had an honest and reasonable belief that the Complainant was 16.

Contentions from the sentence and on appeal

13. [13]
    The Respondent contended for a sentence of a term of imprisonment for six to twelve months, wholly suspended.
14. [14]
    However, as the Complainant was in fact under 16 years of age but the Applicant had an honest and reasonable belief of the Complainant’s age, the Respondent accepted at the sentence hearing that it was open for the Court to make a finding of exceptional circumstances with the consequence that an actual term of imprisonment not be imposed.^[2]
15. [15]
    Ultimately, the Respondent also accepted that if the Court was satisfied that a probation order be imposed, it was appropriate not to record a conviction.
16. [16]
    The Applicant contended for a sentence of 12 months’ probation without a conviction being recorded.
17. [17]
    It is clear from the transcript of the sentence hearing and the sentencing remarks that the sentencing Judge was particularly concerned with whether a conviction should be recorded or not.
18. [18]
    Section 12 of the Penalties and Sentences Act 1992 (Penalties and Sentences Act) provides that:

1. “(2)
   In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—

1. the nature of the offence; and
2. the offender’s character and age; and
3. the impact  that recording a conviction will have on the offender’s—

1. economic or social wellbeing; or
2. chances of finding employment.”

19. [19]
    It was also recognised that if probation was ordered with a conviction recorded, then the Applicant would become a reportable offender under the terms of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Reporting Legislation).
20. [20]
    The Reporting Legislation applied as s 5(1) provides that a reportable offender includes a person sentenced for a reportable offence.  A reportable offence under s 9 includes a prescribed offence mentioned in Schedule 1, Item 9, if the offence is committed in respect of a child.  Sexual assault is such a prescribed offence and the exceptions identified in s 5(2)(b) do not apply in respect of the current offending.
21. [21]
    As a result of s 38 of the Reporting Legislation the sentence had the effect that the Applicant became a reportable offender for 10 years.
22. [22]
    At the sentence hearing, submissions were made on behalf of the Applicant that a conviction ought not to be recorded taking into account:

    1. that the offence was not a serious example of sexual assault as it did not involve touching of the genitals or breasts;
    2. the combination of subjective features; and
    3. the Applicant’s prospects of rehabilitation.
23. [23]
    The relevant subjective features relied upon included as follows:

    1. The Applicant had no relevant criminal history and had committed no offences in the two years and four months since the offending occurred.  It was submitted that the offending was an isolated aberration and there was a low risk of reoffending.
    2. The offending was at the lower end of the spectrum.
    3. As a result of his physical incapacities, the Applicant had faced hardship throughout his life.^[3]
    4. Despite the above, the Applicant had completed further education including:
       1. (i)
          a Diploma of IT (Network Engineering) in 2007;
       1. (ii)
          a Diploma of Sound Production in 2015;
       1. (iii)
          a Diploma of Languages (Mandarin) in 2015;
       1. (iv)
          a Bachelor of IT in 2016; and
       1. (v)
          a Master of Business (International Business Major) in 2019.
    5. At the time of the offending the Applicant was studying a Master of Philosophy majoring in Entrepreneurship, due to be completed in August 2024.  The Applicant had an intention to pursue a PhD in this area.
    6. The Applicant had engaged in volunteer work.  In 2018 and 2019 the Applicant volunteered as a member of the Sporting Wheelies and Disabled Association.  Further he assisted with the National Wheelchair Basketball Championships two years in a row and the National Boccia Championships.  In 2019 he volunteered at the Australian Human Resources Institute.
    7. The Applicant had worked in IT.  At the time of the sentence the Applicant ran his own business in database design.  The Applicant intended to grow this business and to employ other disabled members of the community.  The focus of his intended PhD in Entrepreneurship was access for people with disabilities.  These business plans included engagement with government to obtain endorsement and funding, and also to engage with international partners in America.
24. [24]
    The Applicant’s father provided evidence in a reference of the Applicant’s otherwise good character and employment options in academia.  At the sentence hearing Counsel contended that the recording of a conviction would seriously negatively affect the Applicant’s prospects of working at a university.
25. [25]
    At the sentence it was ultimately submitted that recording a conviction would add “additional obstacles” and, together with being a reportable offender, would in effect cripple the Applicant’s business aspirations and hopes for future employment.
26. [26]
    The Applicant submitted that the Respondent relied on three comparative authorities which involved actual touching of breasts or genitals.  Further, two of those involved convictions after trial and the third involved a more serious criminal history.
27. [27]
    It is in these circumstances that the Applicant contended that the comparative authorities relied upon were unhelpful.  Particularly, where none of the offenders had any physical incapacities such as those held by the Applicant.
28. [28]
    At the sentence the Applicant relied on R v Mirza; Ex parte Attorney-General (Qld)^[4] as a comparative authority.  It was submitted that the offending in R v Mirza was more serious, but the decision was relied upon as an illustration of no conviction being recorded.
29. [29]
    The case involved an attempted indecent treatment of an 11 year old boy, where the offending had a maximum of seven years imprisonment.  The offender was a 25-year-old medical student (with no previous convictions) who became a family friend and told a child, in front of other children, that a massage would feel better on his penis.  He then tried to put his hand in the boy’s pants but was pushed away.  The conduct stopped at that point.  A sentence of 12 months’ probation with no conviction recorded was imposed after a guilty plea.
30. [30]
    The Applicant contended that the sentencing Judge gave no real reasons as to why a conviction was recorded.  It is also contended that this was especially important in this case where it was such a central issue.
31. [31]
    The Applicant referred to several decisions of the Court of Appeal in relation to the exercise of discretion not to record a conviction.^[5]  These cases will be considered further later in these reasons.
32. [32]
    In relation to whether the sentence imposed was manifestly excessive, the Respondent contended that on the facts of this case:

    1. The Applicant was a well-educated man who waited until the Complainant school girl was alone and isolated before approaching her.
    2. The Applicant was cognisant of the Complainant’s discomfort and apprehension and commented on this.
    3. The Applicant persisted in his actions.
33. [33]
    It is contended that in these circumstances the offence was not fleeting and spanned “some” minutes.
34. [34]
    The Respondent identified the following features as relevant to the exercise of the sentencing discretion:

    1. The Applicant received a disability support pension but did aspire to grow the business as outlined above.  Further, the Court was informed that the Applicant “may return to academia in the future”.
    2. The Applicant had a limited, dated and ultimately irrelevant criminal history.
    3. It was not disputed that the Applicant touching his groin in the course of his offending was due to concern about his catheter and not sexual arousal.  However, this circumstance:
       1. (i)
          did not minimise or reduce the objective seriousness of the offending, nor the impact upon the Complainant;
       1. (ii)
          was not known or could not have been known to the Complainant at the time; and
       1. (iii)
          needed to be considered in light of the “sexual inuendo” inherent in the comments made to the Complainant.
    4. No explanation was given as to why the Applicant approached the Complainant.
    5. What occurred could not be construed as a misjudgement or a misreading of social cues.
    6. The offence is a concerning example of its type given the Applicant’s mature years, his intelligence, and the deliberateness and persistence of his advance.
35. [35]
    The Respondent contended that the recording of the conviction was open on the exercise of discretion pursuant to s 12(1) of the Penalties and Sentences Act given the following circumstances which were uncontentious at the sentence:

    1. the age discrepancy between the Applicant and Complainant;
    2. the Complainant was clearly a school student;
    3. the Applicant waited until she was alone to approach her;
    4. the Complainant expressed her discomfort at the Applicant’s advance;
    5. the Applicant persisted with the engagement of the Complainant; and
    6. the Applicant committed the offence charged.
36. [36]
    The Respondent accepted that it is relevant that the Applicant had indicated that he had the ambition to work with or employ other disabled members of the community or to enter academia to teach.  However, the Respondent contended that these factors provided a basis to conclude that the community would be better served by the recording of a conviction.  In this regard the Respondent relied on the decision in R v ZB [2021] QCA 9.
37. [37]
    In relation to the second ground, the Respondent submitted that the sentencing Judge’s reasons were sufficient and the ground was not made out.
38. [38]
    In particular, the Respondent identified:

    1. The sentencing remarks do reference s 12 of the Penalties and Sentences Act in a summary way.
    2. After addressing the factual circumstances of the offending, the Applicant’s antecedents and submissions advanced by Counsel, the sentencing Judge said:

“I have also balanced the considerations in section 12(2) of the Penalties and Sentences Act in deciding whether to record the conviction in this case”.

3. The sentencing Judge expressly noted the consequence of recording the conviction that the Applicant would be subject to the regime under the Reporting Legislation.
4. Subsequent to the above, the sentence was pronounced, including the recording of a conviction.

39. [39]
    The Respondent contended that the sentencing Judge made it clear at an early stage that the central issue in the exercise of the Court’s discretion was whether to record a conviction.  Further, during the sentence hearing the sentencing Judge tested Counsel in respect of various aspects relevant to the issue, including the serious nature of the offending.
40. [40]
    Further:

    1. The sentencing Judge had both written and oral submissions from the Applicant’s Counsel specifically addressing the issue of the consequence of the recording of a conviction upon the Applicant’s economic and social wellbeing.
    2. Counsel was made aware of the several aspects of the Applicant’s offending that were viewed seriously by the Court.  This included that:
       1. (i)
          the Complainant was dressed in her school uniform;
       1. (ii)
          the Applicant’s approach was unwelcome;
       1. (iii)
          the Complainant was obviously uncomfortable; and
       1. (iv)
          the offending went on for a while.
41. [41]
    The Respondent submitted that these matters were uncontentious.
42. [42]
    The impact of the regime under the Reporting Legislation if the Applicant had a conviction recorded was specifically addressed before the sentencing Judge.  In particular, the following factors were considered:

    1. the reporting regime would apply notwithstanding the Applicant’s belief that the Complainant was 16 years of age; and
    2. the operation of the reporting regime was triggered by the Complainant being in fact 14 years of age.
43. [43]
    The sentencing Judge acknowledged the “unusual features” of this case that pulled in different directions.
44. [44]
    The Respondent relied upon the submissions and exchanges with the sentencing Judge as demonstrating the consideration by the sentencing Judge of:

    1. the nature of the offence as revealed by the agreed facts; and
    2. the impact on the Applicant of the recording of a conviction.
45. [45]
    Relevantly, it was also accepted that the offending would be required to be disclosed whether a conviction was recorded or not if the Applicant pursued a career in academia in the future.
46. [46]
    The Respondent referred to and relied upon the authorities of R v RBN [2024] QCA 185 and R v CCF [2018] QCA 285.
47. [47]
    The Respondent contended that here, unlike in the case of R v RBN, there were no areas in dispute which required the sentencing Judge to make factual findings.  Here:

    1. The Applicant had pleaded to an offence of sexual assault.
    2. The statement of agreed facts outlined the acts of engaging the Complainant in conversation while he touched/rubbed her thigh, referring to her as “beautiful” and “sexy”.
    3. It was not disputed that the Applicant touching of himself was out of concern as to the positioning of his catheter.
    4. The fact in (c) did not detract from the sexual element of the offence to which the Applicant had pleaded guilty.
48. [48]
    The Respondent contended that the offence was the Applicant’s intrusion upon the Complainant’s person in a sexual way, and there was no dispute as to the subjective features personal to the Applicant.
49. [49]
    Further, it is submitted that the challenges in the Applicant’s life were not contended to have contributed to the offence nor provided an explanation for the behaviour.
50. [50]
    Overall, the Respondent contended that detailed and focused submissions were made to the sentencing Judge as to the impact of the recording of a conviction upon the Applicant.  The sentencing Judge referred to the Applicant’s age and character, and also his future aspirations for further studies and expansion of his business.
51. [51]
    Ultimately, the Respondent contended that, read in the broader context of the particular focus in oral argument upon the impact of those factors, the sentencing Judge’s remarks demonstrate that he had considered those matters.
52. [52]
    Accordingly, it was submitted that in all the circumstances the sentencing Judge’s remarks were sufficient.

Consideration

53. [53]
    At the hearing of the application for leave to appeal, the Applicant’s Counsel addressed the second ground first.  Logically, that is the correct order to consider the grounds and that starting point is adopted in these reasons.
54. [54]
    The first issue is whether the sentencing Judge erred in failing to give adequate reasons for the recording of a conviction.
55. [55]
    In the sentencing remarks the sentencing Judge relevantly refers to the following factors:

    1. The timely plea of guilty, with the Applicant pleading guilty at an early time.  The Applicant had expressed remorse and cooperated with the authorities.
    2. The facts of the offending as set out in the agreed statement of facts, including that the sentence proceeded on the basis of an honest and reasonable, but mistaken, belief that the Complainant was 16.
    3. The Complainant’s victim impact statement.
    4. The Applicant was 35 years old at the time of offending and was 37 at the time of sentence.
    5. The Applicant did have a limited criminal history, with no previous or subsequent like offending.  The Applicant had not reoffended and was a low risk of reoffending.
    6. There was no pre-sentence custody.
    7. The Applicant’s subjective features, including:
       1. (i)
          The character reference from the Applicant’s father, family support, personal circumstances and life challenges, including managing tetraplegia and incontinence from a very young age, education and sporting activities.
       1. (ii)
          The Applicant’s future aspirations, including working in academia, completing a Master of Philosophy and commencing a PhD, continuing to grow his own database design business and supporting other disabled members of the community.
       1. (iii)
          The medical reports in respect of the Applicant’s physical challenges.
    8. The Respondent contended for a sentence of imprisonment of 6 to 12 months.  Pursuant to s 9(4) of the Penalties and Sentences Act, a period in actual custody was required unless exceptional circumstances were found.
    9. The Respondent acknowledged that it would be “within the sound exercise of discretion to find exceptional circumstances” and “if probation were to be imposed, that a conviction not be recorded”.
    10. The Applicant submitted that there were “exceptional circumstances” and that a sentence of probation for 12 months and no conviction recorded should be imposed.
56. [56]
    His Honour went on to state:

“Balancing the relevant considerations, I find that there are circumstances in this case which, in combination, amount to exceptional circumstances.  I have also balanced the considerations in section 12(2) of the Penalties and Sentences Act in deciding whether to record the conviction in this case.  And noting the fact that recording a conviction will see you subject to the onerous obligations of the reporting legislation, and I am also told that you would agree to being placed on probation and to comply with the order, including an additional requirement that you submit to medical, psychiatric or psychological treatment as directed.

In those circumstances, the orders are: in relation to count 1, I order that you be released under the supervision of an authorised corrective services officer for a period of 18 months …. and the conviction is recorded”.

57. [57]
    The sentencing Judge does not explain why the conclusion was reached to record a conviction, particularly where this conclusion was contrary to the position contended for by both the Applicant and the Respondent if probation was ordered.
58. [58]
    The Court of Appeal has previously considered the exercise of the discretion whether to record a conviction in R v ZB [2021] QCA 9, R v RBN [2024] QCA 185 and R v OAB [2024] QCA 51.
59. [59]
    In R v ZB^[6] the Court was not dealing with a specific ground of sufficiency of reasons but was considering whether the exercise of the discretion to record a conviction was in error.
60. [60]
    President Sofronoff helpfully identified the consequence of recording a conviction^[7] and the benefits^[8] and the detriments of so doing.  In respect of a decision not to record a conviction, his Honour noted:

“The decision not to record a conviction thus denies the community the benefit of the information that would otherwise be available when it might be relevant to an assessment of the offender’s character.  The renunciation of these benefits conferred by the recording of a conviction is not for nothing.  The benefit is foregone because a sentencing judge has decided that, in the circumstances of the case, it is to the greater benefit of the community to afford the offender the privilege of non-disclosure.  Incidentally the offender also enjoys the personal benefits of this privilege but that is not the point of making the order”.^[9]

61. [61]
    As to the exercise to be undertaken by the sentencing judge, Sofronoff P further stated:

1. “[10]
   A sentencing judge must consider the potential benefits and detriments to the community of adopting either course.  That is what the opposing factors stated in s 12(2) of the Penalties and Sentences Act require … as is implied by the factors that are identified in s 12(2)(b) and (c), the offender’s subjective circumstances so far as they relate to the offender’s future prospects are also significant matters.  They raise for consideration whether the promise of future rehabilitation calls for and justifies affording the offender the advantages that flow from not recording a conviction.  To put it another way, the question is whether the community will be better served by not placing the obstacles created by a recorded conviction in the path of the offender towards rehabilitation.  The issue is not one of tenderness to the offender.

1. [11]
   Consequently, once it is decided that an offender’s case is one that is prima facie apt for probation, a question will arise whether the prospects of rehabilitation offered by the probation process might be unduly jeopardised by the possible effect that the recording of a conviction might have upon the offender’s chances of finding employment and upon the offender’s social and economic well-being, which might include the effect upon the offender’s self-confidence after the end of the criminal justice process.  It can easily be envisaged that a conviction might be recorded although probation is ordered, for example, because the need for public denunciation of the commission of the offence is so great that the resultant risk of weakening the potential of rehabilitation by recording a conviction must be borne.  Also, an offender’s prior convictions might render not recording a conviction pointless because it offers no benefits while denying information which might be needed.”

62. [62]
    In the circumstances of that case, the Court allowed the appeal, set aside the recording of a conviction and ordered that no conviction be recorded.  However, the basis for doing so varied:

    1. Sofronoff P found error in recording the conviction where the probation order addressed therapy, supervision and monitoring and negated to a sufficient degree the need for reporting under the Reporting Legislation, such that the community was not better served by a conviction being recorded.
    2. McMurdo JA found error in recording a conviction as the sentencing judge was “so influenced by the abhorrent nature of some of the images” that the seriousness of the offence outweighed other considerations, such that the “nature of the offence” was determinative.
    3. Jackson J found error in the above combination of circumstances, having regard to all of the circumstances of the case.
63. [63]
    In R v RBN^[10] the Court of Appeal considered a specific ground that the sentencing judge erred by failing to provide adequate reasons as to his decision to record a conviction.  Bond JA, with whom Mullins P and Freeburn J agreed, granted leave to adduce further evidence, granted leave to appeal, allowed the appeal and set aside the sentence that recorded a conviction, but otherwise confirmed the sentence.
64. [64]
    The reasons of Bond JA are particularly applicable to the current considerations.  At the sentence hearing, the Crown submitted that a fine or a community service order would be appropriate.  The defendant’s Counsel agreed.  The principal issue was whether a conviction should be recorded.  The Crown conceded it was open either way.  The defendant’s Counsel submitted that not recording a conviction was appropriate.
65. [65]
    Bond JA noted the comments of Sofronoff P in R v ZB that the “principal goal of the balancing process called for by s 12 was to choose the outcome which was of greater benefit to the community” and that the sentencing judge must consider the potential benefits and detriments to the community of adopting either course.^[11]  Further, Sofronoff P’s remarks have been referred to with approval in R v OAB [2024] QCA 51, R v Graham [2023] QCA 125 and the New South Wales Court of Criminal Appeal in R v AB [2022] NSWCCA 3.
66. [66]
    The sentencing remarks were analysed to reveal that the sentencing judge:

    1. Had regard to the agreed statement of facts and the victim impact statement.
    2. Summarised the facts.
    3. Recorded the age of the defendant at the time of offending and at sentence, that there was no criminal history, a guilty plea and some remorse.
    4. Recorded the defendant’s work history and qualifications.
    5. Referred to the authorities (including R v ZB) referred to by the parties and the rival contentions of the parties (including as to the recording of a conviction).
    6. Stated that he had taken into account the nature of the offence, the defendant’s age and otherwise good character, and “the impact recording a conviction will have on [the defendant’s] economic and social wellbeing, or chances of finding employment”.
    7. Concluded by stating “[b]ut balancing the relevant considerations … fined a total amount of $1500 …. The conviction is recorded.”^[12]
67. [67]
    The applicant in that case sought leave to adduce further evidence, including evidence as to the difficulties in finding work due to criminal history check requirements.  While multiple grounds were raised, Bond JA considered that it was only necessary to consider the ground that there was error due to a failure to provide reasons that weighed up the relevant balancing factors required by s 12 of the Penalties and Sentences Act (and consistent with R v ZB).^[13]
68. [68]
    His Honour relevantly stated at [19]:

“It must be acknowledged that the sentencing discretion requires an instinctive synthesis to be performed having regard to the relevant considerations.  Further, in many if not most cases the explanation of why the balancing of the relevant considerations favoured the conclusion reached could be expressed in a relatively brief, if not summary way.  Nevertheless, in the particular circumstances of this case, the expression of reasons required more than was done.”

69. [69]
    His Honour went on to note some specific aspects relevant to the particular factual circumstances.  However, some matters are of general relevance, including:

    1. The sentencing judge said he had taken into account matters “to the extent they were relevant” but did not state how he found them to be relevant.^[14]
    2. “The necessity for the sentencing judge to give reasons for his decision required him to make a finding as to the extent of the impact which recording a conviction might have on the applicant’s economic and social wellbeing or chances of finding employment and he did not make that finding.”^[15]
    3. The reasons do not address whether the recording of a conviction would not be “appropriately proportionate” to the nature and seriousness of the offence.^[16]
70. [70]
    Ultimately, Bond JA concluded that the reasons were inadequate.  In particular:

“The reader is left in the dark as to what considerations were balanced against what the judge regarded as the seriousness of the offence and why the disproportionate argument was rejected”.^[17]

71. [71]
    The current case gives rise to very similar considerations.  The reader is totally left in the dark.  In fact, reading the sentencing remarks the reader is left with the question whether recording a conviction was a typographical error, and whether it should have read “no” conviction recorded.  The position of the parties was stated but there was no explanation of why a contrary position had been reached.
72. [72]
    Further:

    1. There is no consideration of whether the recording of a conviction was “appropriately proportionate” to the nature and seriousness of the offending, particularly where:
       1. (i)
          Recording a conviction resulted in the Applicant being subject to the reporting regime under the Reporting Legislation for a period of 10 years.
       1. (ii)
          The Complainant lied to the Applicant about her age and the Applicant had an honest and reasonable belief that she was 16.  The fact that the Applicant was actually 14 years of age brought the offence within the Reporting Legislation.
       1. (iii)
          The Applicant was charged under s 352(1)(a) of the Criminal Code with sexual assault.  If he had been charged under s 210 of the Criminal Code with indecent treatment of a child, then his honest and reasonable belief as to the Complainant’s age would have been a defence pursuant to s 210(5) of the Criminal Code.
    2. There is no finding as to the extent of the impact which recording a conviction might have on the Applicant’s economic and social wellbeing or chances of finding employment.
    3. There is no consideration of the Applicant’s prospects of rehabilitation, and the impact of recording a conviction on his rehabilitation.
73. [73]
    Accordingly, the ground that the sentencing Judge erred in failing to give adequate reasons for the recording of a conviction was established.
74. [74]
    As the second ground had been established, it was not necessary to consider the first ground that the sentence was manifestly excessive.
75. [75]
    For these reasons, I agreed with the order of the Court that leave be granted to appeal and that the appeal be allowed.

Exercise of the sentencing discretion

76. [76]
    In re-exercising the sentencing discretion the focus was on whether a conviction should be recorded.  In this regard, the submissions made as to whether the original sentence recording a conviction was manifestly excessive provided some assistance.
77. [77]
    Neither party contended that the 18 months’ probation order was not appropriate, nor that the sentencing Judge erred in finding “exceptional circumstances”.  However, in the independent exercise of the sentencing discretion the Court does not “merely [adjust] the sentence actually passed to allow for the error identified”.^[18]
78. [78]
    In accordance with s 9(1) of the Penalties and Sentences Act, the purposes of the sentence are as follows:

    1. To punish the offender to an extent or in a way that is just in all of the circumstances.
    2. To provide conditions that the Court considers will help the offender be rehabilitated.
    3. To deter the offender or other persons from committing the same or a similar offence.
    4. To make it clear that the community, acting through the Court, denounces the sort of conduct in which the offender was involved.
    5. To protect the Queensland community from the offender.
79. [79]
    Undertaking the single step process of instinctive synthesis, the following sentence is appropriate in all of the circumstances:

    1. there are “exceptional circumstances” in the particular circumstances of this case such that a period in actual custody is not required;
    2. an 18 month period of probation; and
    3. no conviction should be recorded.
80. [80]
    Considering the factors in s 12(2) of the Penalties and Sentences Act and other relevant considerations, the reasons for not recording a conviction are as follows:

    1. In respect of the nature of the offence:
       1. (i)
          While a serious offence, this offence was not a more serious example of sexual assault involving actual touching of genitals or breasts and could be described as towards the lower end of the spectrum.
       1. (ii)
          The Applicant pleaded guilty, and the sentence proceeded, on the basis of agreed facts, including that the Applicant held an honest and reasonable belief that the Complainant was 16 years of age.
       1. (iii)
          If a conviction was recorded in combination with a probation order, the Applicant automatically became a reportable offender for a period of 10 years under the Reporting Legislation as a consequence of the Complainant being 14 years of age at the time of the sexual assault.  This resulted notwithstanding the Applicant’s honest and reasonable belief.
       1. (iv)
          The Applicant touching his pants in the genital area did not have a sexual aspect or relate to arousal, but rather was to ensure his catheter was properly attached.
    2. In respect of the Applicant’s character and age:
       1. (i)
          The Applicant had a limited criminal history with no relevant previous offending of a similar nature and the Applicant has committed no offences in the period since.  Consequently, the risk of re-offending is low.
       1. (ii)
          The Applicant is a mature man, who was 35 years of age at the time of the offending.
       1. (iii)
          The Applicant has faced significant challenges since an early age and suffers a permanent disability.  Despite these hardships, the Applicant has attained significant education achievements, including multiple diplomas and degrees.
       1. (iv)
          The Applicant has been involved with the Sporting Wheelies and Disabled Association, the National Wheelchair Basketball Championships and the National Boccia Championships.
       1. (v)
          The Applicant has worked in the IT area and at the time of the original sentence had a business in database design. The Applicant’s future aspirations include:
       1. (a)
          Growing that business together with employing other disabled members of the community.
       1. (b)
          Undertaking a PhD in Entrepreneurship with a focus on access for people with disability.
       1. (c)
          Employment in academia.
    3. In respect of the impact that recording a conviction would have on the Applicant’s economic or social wellbeing and chances of finding employment:
       1. (i)
          It can be inferred that prospective employers, particularly educational institutions and disability sporting associations, would require criminal history checks to be done and a record of conviction would adversely affect the Applicant’s prospects for positions, both paid and volunteer.
       1. (ii)
          Recording a conviction would seriously negatively affect the Applicant’s prospects of working at a university.^[19]
       1. (iii)
          Recording a conviction would result in additional obstacles to the Applicant growing the business and future employment.
       1. (iv)
          Recording a conviction would result in the Applicant being a reportable offender which would require him to report regularly for a 10 year period.  Given the Applicant’s permanent disability the reporting obligation would be even more onerous.  Further, having to report regularly would seriously negatively affect the Applicant’s prospects of employment.
       1. (v)
          Each of these features would have a significant impact on the Applicant’s economic and social wellbeing.  The Applicant receives a disability support pension and his ability to supplement that income would be impacted by his reduced prospects of finding employment.
       1. (vi)
          There is also likely to be an impact on the Applicant’s ability to be involved in the various sporting associations and this is likely to have an impact on his social wellbeing.
    4. The Complainant’s victim impact statement reflects the significant impact that the offending has had on the Complainant.  That impact may partially reflect the Complainant’s actual age of 14 years, rather than the incorrect age that she told the Applicant giving rise to his honest and reasonable, but mistaken, belief.
    5. The Applicant has expressed remorse.^[20]
    6. As part of the probation order, the Applicant agreed to, and was ordered to, comply with the additional requirement to submit to medical, psychiatric or psychological treatment as directed.  In the particular circumstances of this case, the probation order addresses any need for professional therapy, supervision, and monitoring and negates to a sufficient degree any need for monitoring under the Reporting Legislation.  Consequently, there is no need to record a conviction in order to achieve the monitoring under the Reporting Legislation.
    7. The Applicant’s prospects of rehabilitation offered by probation might be jeopardised by the possible effect of the recording of a conviction given the likely impact on the Applicant’s prospects of employment and volunteer opportunities and on his economic and social wellbeing.
    8. In respect of whether the community would be better served if a conviction was or was not recorded:
       1. (i)
          Recording a conviction in the circumstances of this case would result in an adverse impact on the Applicant which would be disproportionate to the seriousness of the particular offending, which supports the conclusion that the community would be better served if a conviction was not recorded.  This is especially so in the combined circumstances of the Applicant’s honest and reasonable belief as to the Complainant’s age, the mandatory impact of the Reporting Legislation and the Applicant’s particular personal circumstances.
       1. (ii)
          The recording of a conviction is likely to have an impact on the Applicant’s current and on-going rehabilitation,^[21] which supports the conclusion that the community would be better served if a conviction was not recorded.  To record a conviction would give insufficient weight to the purpose of rehabilitation in the Applicant’s particular circumstances and in the circumstance of (i) above.
    9. The position of both the Applicant and Respondent at the original sentence hearing that if a probation order was made then no conviction should be recorded is consistent with the matters identified above.  There is no reason to depart from that position.
    10. The public interest is not served by requiring a conviction to be recorded in this particular case.  The public interest is better served by no conviction being recorded as:
        1. (i)
           the Applicant’s subjective characteristics, the nature of the offending and the Applicant’s prospects of current and future rehabilitation are given due weight; and
        1. (ii)
           it avoids any disproportionate impact that may result from the recording of a conviction.
81. [81]
    Accordingly, for these reasons I agreed with the order made on 13 February 2025 that the order made on 20 February 2024  in relation to Count 1 on Indictment 502 of 2023 be varied by substituting the words “the conviction” with the words “no conviction”.