//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] QCA 47
appellant. Appeal allowed. The order that no conviction be recorded for each count on either indictment was set aside. Convictions were ordered recorded for each count on the first indictment and for the...
The sentencing judge imposed probation and community service but did not record convictions. The Court of Appeal found that the judge had wrongly proceeded on the basis that the respondent would automatically become a reportable offender for the online offence. The statutory consequence depended on a conviction being recorded or imprisonment being imposed. The Court considered the error important because reportable status and monitoring were relevant to the sentencing decision. It allowed the Attorney-General’s appeal and ordered convictions recorded for all offences, while retaining the other sentencing orders.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,195 words · generated 08/10/2026
The Queensland Court of Appeal allowed an Attorney-General’s appeal against sentence. The respondent had pleaded guilty to seven counts of indecent dealing with a person with an impairment of the mind and one count of using electronic communication to procure a child under 16. The District Court imposed three years’ probation for the first indictment and 80 hours of community service for the second. It took account of 79 days of presentence custody but did not declare that time served. No conviction was recorded for any count ([13]).
1 cited instrument linked from this judgment.
The first group of offences involved the respondent, who owned and operated a swim school, and a 17-year-old swim instructor he employed. He knew she had autism spectrum disorder. On seven occasions over less than three months, when they were alone, he engaged in uninvited sexual conduct involving hugging, kissing and slapping her buttocks ([15]). The second offence occurred while he was on bail for those offences. He communicated with a fictitious 13-year-old girl controlled by an authorised law enforcement agent. The messages included sexualised comments, requests for pictures and invitations to sexual contact. The respondent continued after the supposed child identified herself as 13 ([16]–[17]).
The Attorney-General argued that the sentencing judge had wrongly treated the respondent as automatically becoming a reportable offender in relation to the second indictment, and that the sentences were manifestly inadequate ([14]). The Court upheld the first ground. Because it found that specific error, it did not decide the manifest-inadequacy ground ([46]).
The Court varied only the conviction-recording component of the sentence. It set aside the orders not to record convictions and ordered convictions recorded for each count on both indictments ([66]). The judgment does not replace the probation or community service orders with imprisonment. Boddice JA noted that the Attorney-General had conceded that imprisonment should not be imposed, given the completed community service and continuing compliance with probation ([5]–[7]).
The central error concerned the connection between a conviction and reportable-offender status. The Court stated that, under s 5(2) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), the respondent would become a reportable offender only if a conviction were recorded or he were sentenced to imprisonment ([37]). The sentencing judge had told the respondent that he would become a reportable offender in relation to the second indictment ([34]).
Brown JA examined whether that statement was simply a misdescription of the psychiatrist’s report or reflected the judge’s own legal assumption. The psychiatrist had not said that the respondent would become a reportable offender ([35]). In Brown JA’s reading, the judge made a positive statement about the legal position. The judge had been told in submissions that reportable status depended on a conviction being recorded, but his sentencing remarks did not clarify or correct the statement ([38]–[46]). Because the assumed automatic consequence was wrong, it was an irrelevant consideration in the sentencing exercise ([40], [46]).
The Court also explained that reportable-offender status is a consequence of a sentence, rather than part of the sentence itself, but may still be relevant to the decision whether to record a conviction ([45], [58]). That distinction matters: the legal consequence can inform sentencing, but only if the court identifies it accurately.
Having found error, the Court separately considered whether to exercise its residual discretion to intervene. An Attorney-General’s appeal is subject to stringent requirements. The Court referred to the principle that such appeals are generally for rare and exceptional cases, including to correct an error of principle or a sentence that would undermine public confidence in the administration of justice ([32]). The Attorney-General also bore the onus of negating reasons for the Court not to interfere ([33], [47]).
Brown JA regarded the error as significant because of the nature of the offences and the psychiatrist’s recommendation for ongoing sex-offender treatment and monitoring ([53]–[54]). The Court considered the respondent’s evidence and circumstances, including completed community service, employment as a labourer, counselling, his prior lack of criminal history and the likely impact of further sentencing on rehabilitation ([50]–[51], [63]). It nevertheless concluded that the public interest in proper sentencing and monitoring justified intervention ([54], [64]).
In re-exercising the conviction discretion, the Court applied s 12 of the Penalties and Sentences Act 1992 (Qld). The identified factors included the nature of the offence, the offender’s character and age, and the effect a conviction may have on economic or social wellbeing or employment prospects ([55]). The judgment emphasised that those factors are not exhaustive: the court also considers the potential benefits and detriments to the community of recording or not recording a conviction ([56]).
The balance turned on the offending and risk evidence. The first indictment involved repeated conduct towards a vulnerable complainant in a position of disadvantage. The second involved further sexualised conduct while the respondent was on bail, directed at a person he believed to be 13 ([59]–[62]). Dr Bala considered the further offending to have increased the respondent’s risk profile and recommended treatment and monitoring in the community ([23], [62]). The Court considered that these matters supported disclosure of the convictions for community protection ([64]).
The judgment applies existing principles rather than announcing a new general test. Before this decision, the cited authorities established the framework for appellate intervention, the stringent approach to Attorney-General sentence appeals, and the factors relevant to the discretion to record convictions. The Court referred to House v The King in explaining specific error in the exercise of discretion ([30]) and to Hili v The Queen for the principles governing manifest inadequacy ([31]). The Court did not decide the latter issue in this case.
For Attorney-General appeals, the Court relied on authorities including R v O'Sullivan and Lee; Ex parte Attorney-General (Qld) and R v TBH; Ex parte Attorney-General (Qld) for the exceptional nature of intervention ([32]). It referred to CMB v Attorney-General (NSW) for the residual discretion and the Attorney-General’s onus ([47]). R v Schulz; Ex parte Director of Public Prosecutions (Cth) supplied a list of relevant considerations, including guidance to lower courts, delay, rehabilitation, parity and totality ([48]).
On conviction recording, the Court drew on R v ZB. It adopted the proposition that a sentencing judge considers potential benefits and detriments to the community of either course ([56]). The judgment also referred to R v RBN in connection with the significance of future rehabilitation and the community’s interest ([57]). It expressly stated that reportable-offender status may be a relevant sentencing consideration, particularly when deciding whether to record a conviction ([45], [58]).
The decision’s particular application is that the relevance of reportable status does not excuse an incorrect assumption about when that status arises. The judgment records that, in this case, a conviction or imprisonment was required under s 5(2) ([37]). The Court treated the sentencing judge’s contrary assumption as a specific error and then considered the actual statutory consequence as part of the re-exercise of discretion ([46], [58]).
The judgment does not purport to set out the full statutory scheme or address every circumstance in which reportable-offender status may arise. Its discussion is limited to the provisions and facts before the Court. It also does not establish that convictions must be recorded in every case involving a reportable-offender consequence. The result depended on the balancing exercise in this case, including the offending, the risk assessment, the recommended monitoring and the respondent’s personal circumstances ([59]–[65]).
At [37], the Court said that the respondent would become a reportable offender only if a conviction was recorded or he was sentenced to imprisonment. In plain English, the judge could not treat reporting obligations as an automatic consequence of the online offence, independent of the sentencing outcome.
At [45], Brown JA explained that reporting status is a consequence of sentence, not a sentence in itself, but may be relevant to the decision whether to record a conviction. This recognises that consequences outside the formal sentence can still matter to the statutory sentencing discretion.
At [46], Brown JA concluded that the sentencing judge’s statement was a positive assertion of the legal position and was plainly wrong. The Court therefore found that an irrelevant consideration had affected the sentencing decision. This was the error that allowed the appeal.
At [56], the Court stated that the conviction decision requires attention to potential community benefits and detriments. In practical terms, the judge’s task is not confined to the offender’s employment prospects or personal hardship. The public consequences of recording, or not recording, a conviction also form part of the balance.
At [64], Brown JA considered that the community detriment of not recording a conviction was significant because the respondent was assessed as requiring ongoing treatment and monitoring. The Court considered the respondent’s rehabilitation and employment evidence, but found that it did not outweigh the public benefit identified on the evidence.
At [66], the formal orders show the limited scope of the appeal’s result: the non-conviction orders were set aside and convictions recorded. The orders did not replace probation or community service with imprisonment.
The decision is most directly relevant where a sentencing judge considers the consequences of reportable-offender status when deciding whether to record a conviction, but the statutory trigger for that status is misunderstood. The relevant feature here was the judge’s express statement that the respondent would become reportable in relation to the second indictment, despite the legal requirement for a recorded conviction or imprisonment ([34], [37], [46]).
The reasoning also bears on Attorney-General sentence appeals where a specific sentencing error is alleged. The judgment separates proof of error from the further question whether the Court should intervene. The prosecution must satisfy the applicable residual-discretion requirements, and the court considers the nature and materiality of the error along with matters such as rehabilitation and the consequences of resentencing ([47]–[54]).
For s 12 conviction decisions, the case illustrates a fact-sensitive balance involving offence seriousness and repetition, vulnerability of complainants, further offending on bail, personal circumstances, employment effects and the evidence about rehabilitation and monitoring ([55]–[65]). The outcome should not be read as making any one of those facts decisive in every case. The Court considered them together.
The judgment is also relevant where a conviction’s consequences are argued to affect rehabilitation or employment. The respondent had sold his swimming business, had difficulty obtaining employment and had obtained work as a labourer. The Court considered those matters, but noted that the asserted link between convictions and rejection from a particular position was supposition on the evidence before it ([51], [63]). The Court then compared the demonstrated detriments with the community protection benefits it identified ([64]).
The judgment was delivered on 20 March 2026. The provided judgment contains no account of later decisions applying or distinguishing R v EAD; Ex parte Attorney-General (Qld). Accordingly, later judicial treatment cannot be established from this source.
The judgment itself explains how it treated earlier authorities. It cited House v The King and Hili v The Queen for general appellate principles, but did not need to apply the manifest-inadequacy ground after finding specific error ([30]–[31], [46]). It applied the residual-discretion principles from CMB v Attorney-General (NSW), and relied on Schulz for relevant considerations when deciding whether to intervene ([47]–[48]).
It treated R v ZB as authority for considering community benefits and detriments under s 12 and referred to R v RBN in relation to the offender’s prospects and the community’s interest ([56]–[57]). It also cited R v Bunton for the proposition that reportable status may be relevant to sentencing ([45]). These are treatments of earlier cases by the Court in EAD, not evidence of how courts subsequently treated EAD itself.
The judgment does not decide the Attorney-General’s second ground that the sentences were manifestly inadequate. It expressly found it unnecessary to do so after upholding the specific-error ground ([46]). That ground therefore should not be treated as having been resolved in the case.
The decision also does not provide a comprehensive account of s 5 of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). It states the relevant trigger as applied to the respondent, but does not examine other categories of reportable offences, exceptions or procedural mechanisms ([37]). Those matters remain outside the reasoning supplied here.
The Court explains that reporting status may be relevant to the s 12 discretion, but does not set out a universal method for weighing that consequence against employment, social wellbeing or rehabilitation in other factual settings ([45], [55]–[58]). The result depended on the particular evidence, including the psychiatrist’s assessment and the recommended monitoring ([62]–[64]).
Finally, although the Court discussed the respondent’s counselling and rehabilitation, it noted that the evidence did not reveal the results of counselling in terms of rehabilitation ([63]). The judgment therefore does not determine how different or more detailed evidence of treatment progress might affect the balance in another case.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v EAD; Ex parte Attorney-General (Qld) [2026] QCA 47
PARTIES: R / v / EAD / (respondent) / EX PARTE ATTORNEY-GENERAL OF QUEENSLAND / (appellant)
FILE NO/S: CA No 249 of 2025 / DC No 444 of 2025 / DC No 634 of 2024
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT: District Court at Cairns – Date of Sentence: 25 September 2025 (Kent KC DCJ)
DELIVERED ON: 20 March 2026
DELIVERED AT: Brisbane
HEARING DATE: 4 February 2026
JUDGES: Boddice JA, Brown JA, Wilson J
ORDERS: Appeal allowed. Sentence below varied: to set aside the order that in respect of each count on both the first and second indictment no conviction be recorded; and to order that convictions be recorded for each count on the first indictment and for the count on the second indictment.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the respondent pleaded guilty to seven counts of indecent dealing with a person with an impairment of the mind, and on a separate indictment, one count of using electronic communication to procure a child under 16 – where the sentencing judge did not record convictions with respect to the first or second indictment – where the sentencing judge took into account that the respondent would become a reportable offender under s 5 of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 – where the Attorney-General contends that the sentencing judge erred by taking into account an irrelevant consideration as the respondent would only become a reportable offender if his convictions were recorded – whether convictions should be recorded / Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 5 / Penalties and Sentences Act 1992 (Qld), s 12 / CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9, cited / Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited / House v The King (1936) 55 CLR 499, cited; [1936] HCA 40, cited / R v Bunton [2019] QCA 214, cited / R v O'Sullivan and Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196; [2019] QCA 300, cited / R v RBN [2024] QCA 185, considered / R v Schulz; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 150, considered / R v TBH; Ex parte Attorney-General (Qld) [2025] QCA 190, considered / R v Yaroslavceff [2022] SASCA 123, considered / R v ZB (2021) 287 A Crim R 519; [2021] QCA 9, considered
COUNSEL: C N Marco for the appellant / J J Sheridan for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Osborne Butler Lawyers for the respondent
BODDICE JA: I agree with Brown JA that the sentencing process was infected by specific legal error. I also agree with the orders proposed by Brown JA.
Brown JA’s comprehensive summary of the circumstances of the respondent’s offending, his antecedents, the psychiatric report and the sentencing remarks, which I gratefully adopt, allow me to briefly state my reasons.
First, a clear reading of the sentencing remarks supports a conclusion that the sentencing judge was sentencing the respondent on the basis that he would be a reportable offender. That conclusion was erroneous.
That error was material, particularly when regard is had to the psychiatric opinion that the respondent’s positive prospects of rehabilitation arose in the context of a recommendation that the respondent have sex offender treatment and monitoring on release into the community. As such, the sentencing discretion miscarried.
Second, in any re-exercise of the sentencing discretion, it is significant that the Attorney-General concedes that having regard to the successful completion to date of the community service orders and the respondent’s ongoing compliance with the probation order, there ought not to be imposed on the respondent a sentence of imprisonment.
Absent that concession, which was properly made having regard to the nature of appeals against sentence by the Attorney-General, the serious aspects of the respondent’s further offending whilst on bail for sexual offences would have warranted the imposition of a period of imprisonment.
Having regard to that concession, and the respondent’s performance to date on the previous orders, I would re-exercise the sentencing discretion by imposing the same sentences of probation and community service. I would, however, record convictions for each offence.
The offences in the first indictment were committed in circumstances where the respondent was in a position of trust and authority over a much younger complainant who was at a significant disadvantage. The respondent engaged in that conduct persistently, despite her obvious discomfort, on seven separate occasions over a period of under three months. Such conduct warranted the recording of convictions, notwithstanding the fact that the respondent had no prior criminal history and his conduct was inconsistent with previous otherwise good character.
The offence on the second indictment also called for a conviction to be recorded. The respondent engaged in serious further offending whilst on bail for sexual offences. Although the person he was messaging was not in fact a 13 year old girl, the respondent plainly believed that to be the case. Disturbingly, the sexualised messages continued even when the 13 year old girl reminded him of her age.
In determining whether to record a conviction, a sentencing judge must consider the potential benefits and detriments to the community. The principal goal of that balancing process is to choose the outcome which was of greater benefit to the community. The respondent’s conduct was of a nature where there was a need for the community to know that the respondent had engaged in such conduct. The recording of a conviction is the only appropriate course in such circumstances.
Circumstances of the offending
The offences, the subject of the first indictment, were committed between 18 November 2023 and 3 February 2024. The respondent owned and operated a swim school in Cairns and employed the complainant as a swim instructor. The respondent was aware that the complainant had a diagnosis of autism spectrum disorder. On 7 occasions, the respondent, when alone in the company of the complainant, engaged in uninvited sexual conduct involving hugging, kissing, and slapping her buttocks. The complainant reported the matter to the police and the respondent was arrested and charged. The respondent was later granted bail.
The offence, the subject of the second indictment, occurred whilst the respondent was released on bail in respect of the offences the subject of the first indictment. While on bail, the respondent engaged in a conversation with a fictitious 13-year-old female child called ‘Zoey’ controlled by an authorised law enforcement agent. During that conversation, the respondent invited sexual contact and engaged in grooming behaviours, asked for pictures and sent pictures of himself shirtless and asked whether she minded “hanging with someone whos [sic] slightly older”, if she wore “a bikini or one piece” and if she would “kiss someone as old as [the respondent]”.
The respondent also made sexualised comments towards Zoey, including “I might have an all day sucker for you ... a big lolly you can stick in your mouth” and “you could come sit on my lap and have a cold beer if you want”. When Zoey raised that she was 13 more than once, the respondent would respond with comments such as “I wont [sic] tell anyone if you dont [sic] tell anyone”. Police subsequently executed a search warrant at the respondent’s address and arrested the respondent. The respondent declined to participate in an interview and was remanded in custody until the date of his sentence.
The respondent’s antecedents
The respondent was between 49 and 50 at the time of offending and was 51 at the time of sentence. He had no prior criminal history. The respondent came from a stable and supportive family, had completed high school and an apprenticeship and had worked as a swimming coach most of his adult life and had taken over the family swimming business. The respondent has had two wives. His second wife left him prior to the second offending. He has a teenage daughter from his first marriage with whom he shares custody.
The first offence occurred whilst the respondent was experiencing low self-esteem and marital stress stemming from issues between his second wife and daughter.
After the initial offences in 2023, the respondent’s state showed signs of improvement after engaging in therapy. He deteriorated again after a breakdown in the respondent’s second marriage and both of his ex-wives entering new relationships, which caused the respondent to experience a lack of personal support and engage in further alcohol abuse. The respondent would often binge-drink, and had been drinking from lunchtime onwards on the day of the second offending.
The respondent entered an early plea of guilty in respect of each indictment. Personal references, including from his ex-wife, an employee and family and community members were tendered on his behalf, which spoke to his longstanding contributions to the community and otherwise good character. These references noted the rehabilitative steps he had taken and opined that the offending was out of character.
Psychiatric Report
A psychiatrist report was provided by psychiatrist Dr Bala. According to the opinion of Dr Bala, the respondent did not meet the criteria for paedophilic disorder, nor did he suffer from a psychiatric condition. According to Dr Bala, the respondent has a history of alcohol abuse and used sex and sexual outlets as a coping mechanism in times of low self-esteem and personal stress. In relation to the first offending, Dr Bala considered that there was evidence of loosening boundaries with a vulnerable victim and exploiting the vulnerability at a time when the respondent was experiencing marital difficulties and self-esteem issues. In relation to the second offending, Dr Bala considered that the respondent deteriorated after a period of counselling and impulsively reoffended when he felt abandoned and alienated. The respondent had no explanation as to why the two victims were relatively young.
Dr Bala considered that while the respondent’s initial offending would have placed him as a low-risk category, with the continuation of offending whilst on bail that risk profile was increased to average. Dr Bala considered the effect of the increase from low to average risk “…means [the respondent] should have sex offender treatment and monitoring when released into the community”. Dr Bala considered that the respondent had good prospects of rehabilitation, particularly in light of his period in custody.
Dr Bala opined that the respondent needed ongoing therapy to improve his poor coping style and to develop alternative coping skills, which also needed to involve monitoring and reducing his alcohol risk. The respondent did not however require psychiatric treatment.
Sentencing considerations
The sentencing judge took into consideration:the respondent’s lack of criminal history;the significant impact caused by 79 days of pre-sentence custody served by the respondent, which was a significant factor in the sentencing judge determining not to impose imprisonment and not to declare the time served;the circumstances of his offending;his antecedents;that he had lost his business, would no longer be able to be a blue card holder and would have to find alternative employment;that the period of 79 days in custody had had particular impact upon him;what he regarded as impressive references which supported the offences being out of character;his plea of guilty and demonstrated remorse;his reasonable to quite good prospects of rehabilitation;the fact he would be required to seek alternative employment outside of the swimming industry as a result of his offending;the victim impact statement of the complainant to the first offences, who had described that she has ongoing difficulties sleeping, experiences flashbacks, suffers from stress and now doesn’t like people touching her. While she initially lost her job, income, trust and smile, she had regained similar employment at the time of sentence. The sentencing judge considered that the complainant’s statement reflected the fact that the impacts were significant but not ongoing and that she had been resilient, had entered into a recovery process and was still working in the swimming industry; andthe opinion of Dr Bala referred to above, including the respondent’s prospects of rehabilitation.
In sentencing the respondent, the sentencing judge noted the purposes of sentencing to include:punishing the respondent to an extent and in a way that is just in all the circumstances;assisting the respondent’s rehabilitation, which is a primary purpose;deterring others from committing the same or similar offences;making it clear that the community denounces the respondent’s conduct; andprotecting the Queensland community from any future misdeeds by the respondent, which the sentencing judge noted as best achieved by his successful rehabilitation.
The sentencing judge also noted that an additional purpose of sentencing in sexual offences against children is to deter others from engaging in the kind of behaviour that was the subject of the second indictment, in order to protect children.
In determining that he would order probation and impose a community service order, the sentencing judge stated that:3
“There has been some debate in court today consequent upon some indications by me about recording a conviction or otherwise. The relevant discretion is in section 12 of the Penalties and Sentences Act. Relevant circumstances include the nature of the offences – or the nature of the offence in each case, your character and age, and the impact recording a conviction will have on your economic or social wellbeing and chances of finding employment. All of those are relevant factors.
A number of them stand in your favour. The nature of the offences is not at the most serious end of the scale. Your previous character is good. Recording a conviction will have an impact on your prospects of finding employment and it would also have an impact, presumably, on your economic or particularly social wellbeing.
The sentencing process is one of instinctive synthesis and as has been observed, at least at an intermediate appellate level on more than one occasion, there is no one correct sentence for each offender and set of offences. Sentencing must be individualised and as has been acknowledged, it is one of the complicated exercises of discretion by a Judge at first instance.
What I have concluded at the end of the day is firstly that it is not necessary for to you serve any further time in prison and I do intend to offer you probation and community service. My inclination is to not sentence to you [sic] imprisonment and instead of making a prison probation order, take into account the 79 days that you have served and make a three-year probation order as well as a community service order.”
“That being the case, it does fall for me to consider whether or not to record a conviction. And I described the nature of the discretion set out in section 12 of the Act. The nature of the offences in each case, whilst serious, are not at the most serious end of the spectrum. Your character and age, Mr EAD, are – or at least your previous character is in your favour. Your age is probably against you. You are certainly mature for a first offender.
I do consider that recording a conviction will have a significant impact on your economic or social wellbeing or chances of finding employment. As has been stated previously, it is important that people be given the best opportunity to rehabilitate and the [sic] reintegrate into the community, and in that sense, taking steps that will damage your employment prospects are not helpful to the rehabilitation process.
I do take into account, of course, the countervailing feature that people dealing with you in the future, both in a social and an employment sense, are entitled to have the truth revealed to them, that you have been found guilty of these offences. But in weighing these various matters in the balance, particularly given your lengthy unblemished history until now and the fact that you have been significantly penalised by a period of imprisonment and the loss of your business, in all the circumstances, in a finely balanced case, I come down on the side of not recording a conviction.”
Relevant principles
The Attorney-General contends that there was a specific error made by the sentencing judge by taking into account, in effect, an irrelevant consideration, namely that without recording a conviction the respondent would still be a reportable offender. It is one of the errors of discretion recognised in House v The King.5 In the event that specific error is found, a court will generally re-exercise the discretion to determines the appropriate sentence.
The second ground is that the sentence was manifestly inadequate. In that regard, the relevant principles are set out by the High Court in Hili v The Queen.6 An error is inferred where a sentence is manifestly inadequate or otherwise unreasonable or plainly unjust. Intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed, rather the difference must be such that the court will infer there has been a misapplication of principle.7 In order to establish the sentence is manifestly inadequate, the Court must be satisfied the sentence is out of the range of sentences that could have been imposed and therefore there must have error even though it is not possible to identify it.8
In the case of appeal by an Attorney-General, more stringent requirements must be met before appellate intervention is justified, even if error is found.9 There is a longstanding principle that an appeal by an Attorney-General should only be instituted and allowed in rare and exceptional cases where “allowing the appeal is desirable in order to address an error of principle, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, or to establish and maintain adequate standards of sentence. It also extends to correcting a sentence which is so inadequate that it bespeaks error of principle, or would undermine public confidence in the administration of justice”.10
It is for the Attorney-General to demonstrate that the residual discretion should be exercised.11
Was there specific error?
“You were diagnosed by him as having an alcohol use disorder and you are something of a binge drinker. He does opine that you have reasonable prospects of rehabilitation in the context that I have described and you will become a reportable offender in relation to the second indictment.”
(emphasis added)
Dr Bala however made no such statement about the respondent becoming a reportable offender as part of his opinion.
There is no further reference in the sentencing remarks clarifying whether or not the sentencing judge adopted the underlined proposition as being the legal position in fact.
Although the respondent had committed a prescribed offence, under s 5(2) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004, it was only in the circumstance that a conviction was recorded or he was sentenced to imprisonment that he would be a reportable offender under that Act.
In exchanges with counsel, and particularly with counsel for the defence, the sentencing judge had been informed that the respondent would become a reportable offender if a conviction for the second tranche of offending was recorded.
The real question is whether the sentencing judge merely misspoke as to the content of Dr Bala’s report or was acting on a wrong assumption that the respondent would become a reportable offender automatically in relation to the second indictment.
It is submitted on behalf of the Attorney-General that given the statement made which did not emanate from Dr Bala and the lack of later clarification, it was evident that the sentencing judge had taken into account an irrelevant consideration in his sentence. Given the statement is plainly wrong, insofar as a conviction would be required or a period of imprisonment ordered before the respondent would become a reportable offender, it plainly would be an irrelevant consideration.
While the Attorney-General sought to attach significance to a reference in the defence counsel’s submissions that for the offence on the second indictment, the respondent would automatically become a reportable offender, little can be inferred from that. In the oral exchange with the defence counsel, the defence counsel had clarified that a conviction for the second tranche of offending had to be recorded before the respondent would automatically become a reportable offender.
The respondent contended that the words “in the context that I have described” demonstrated that the sentencing judge did not act on the basis that the respondent would automatically be a reportable offender based on the offence committed on the second indictment.
The difficulty with the respondent’s contention is that on a natural reading, the reference to those words “in the context that I have described” refers to the reasonable prospects of rehabilitation, particularly by reference to the matters referred to in the previous paragraph in respect of Dr Bala’s findings. Nor did his Honour’s previous reasons provide any context for the respondent being referred to as a reportable offender.
Residual discretion
Having found error, the Court must still consider whether the nature of the error means that this case can be characterised as being a rare and exceptional case which warrants this Court exercising its residual discretion to interfere with the sentence. The onus lies on the Attorney-General “to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised”.15
In R v Schulz; Ex parte Director of Public Prosecutions (Cth)16 Bond JA relevantly stated that:
“[57] Relevant considerations include the extent to which the determination of the Court would provide guidance to courts or practitioners in the future; the imminence of the offender's release from custody, on parole or otherwise; delay or other fault on the part of the prosecution; the effect of any further resentencing on progress towards the respondent’s rehabilitation; parity; and totality.”
The Attorney-General contends that protection of the community by recording of a conviction justifies the exercise of the residual discretion in this case.
As part of the Court’s consideration as to whether to give leave and resentence, it is necessary to consider the concern with double jeopardy and not unnecessarily exposing a defendant to being twice vexed as a result of facing resentencing by an appeal court.17 The Attorney-General does not seek to have this Court interfere with the sentence of probation or community service, given that the respondent has already completed the community service ordered by the sentencing judge. The Attorney-General does however contend that several factors weigh in favour of the protection of the community by requiring the conviction to be disclosed, particularly the ongoing need for monitoring in the community as identified by Dr Bala, the nature of the offending and the age of the complainants.
In considering whether to intervene, this Court also has regard to a further affidavit of the respondent, which is relevant to the re-exercise of the sentencing discretion. In his affidavit, the respondent swears to the fact that he has completed the community service to which he was sentenced in relation to the second offence. He has sold his swimming business and has had difficulty obtaining further employment, which he attributes to his convictions in relation to the two offences. He has however obtained employment as a labourer. He has also engaged with counselling directed by the Department of Community Protection. These matters, together with his lack of criminal history, advanced age, the fact the offending is at the lower end of the scale of seriousness for the offences and the “resilience” of the complainant to the first offence are relied upon by the respondent as militating against the re-exercise of the sentencing discretion, particularly given the effect of further resentencing upon the respondent’s rehabilitation.
The sentence imposed by the sentencing judge was not the result of submissions made by either party. The sentence imposed, without recording a conviction, was in fact considerably more lenient than that submitted by either the defence or the Crown. Although each party submitted that a sentence of imprisonment was open, neither the Crown nor the defence submitted that the respondent should serve a further period in custody given the 79 days served.
The incorrect assumption made by the sentencing judge was a significant error given the nature of the offences and the identified need for ongoing monitoring of the respondent by Dr Bala.
In the circumstances of this case, I consider that the Attorney-General has discharged her onus. Given the nature of the offences and the respondent’s ongoing need for monitoring and therapy as identified by Dr Bala, public confidence in the administration of justice would be undermined if the Court did not intervene where there is clear error and that error has led to the subsequent sentence imposed which does not accord with the proper exercise of the discretion under s 12 of the insofar as the recording of a conviction was to the greater benefit of the community.
Re-exercise of discretion
A court’s consideration whether or not to record a conviction is guided by s 12 of the Penalties and Sentences Act 1992, and in particular the circumstances in s 12(2) of that Act which include:the nature of the offence;the offender’s character and age; andthe impact that recording a conviction will have on the offender’s economical or social wellbeing or chances of finding employment.
The considerations listed in s 12(2) are not the only factors to which the Court can have regard. The Court must consider the potential benefits and detriments to the community of adopting the course of recording a conviction as opposed to not recording a conviction.18 As was said by Sofronoff P in R v ZB:19
“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.”
In this context, part of recording a conviction requires consideration of the effect that recording or not recording a conviction will have on the respondent’s status (or lack thereof) as a reportable offender.21 The latter was not considered by the sentencing judge.
The offending was against a 17 year old and someone who purported to be 13 years old. The offending being directed against such young women was unexplained and Dr Bala considered that the risk of reoffending was increased by the second tranche of offending whilst on bail.
In the case of the first tranche of offending, it was repeated offending in circumstances where the respondent was well aware of the impairment of the complainant concerned. While she has regained employment, the impacts upon her are ongoing.
In the case of the second indictment, the respondent offended whilst on bail in circumstances where he clearly was under the belief that the person to whom he was chatting was a 13 year old girl, and yet continued to engage in conversation of a sexual nature. It is an aggravating factor that the respondent offended whilst on bail, again against a perceived young person.
Dr Bala characterised the second tranche of offending as concerning and observed that the respondent had no explanation as to why the two victims were relatively young age compared to his usual partners. Significantly, while the respondent had had an unblemished past (prior to the first tranche of offending), Dr Bala identified the respondent as requiring ongoing treatment and monitoring. While Dr Bala characterised the second tranche of offending as that “[h]e likely impulsively reoffended with the online solicitation offence in 2024 while feeling abandoned and alienated”, Dr Bala recommended that the respondent needed ongoing psychological therapy to improve his poor coping style and develop alternative coping skills. He noted that the second tranche of offending “increases the risk profile to average, which means he should have sex offender treatment and monitoring when released into the community. He has good prospects for rehabilitation having been affected by the arrest and the aversive experience of being in custody and being exposed to challenging and traumatic encounters”. Those matters strongly weigh in favour of disclosure of the conviction for the benefit of the community.
While the respondent has undertaken counselling with a psychologist, his evidence doesn’t reveal the results of that counselling in terms of his rehabilitation. It may be acknowledged that this is his first offending and he has suffered significant consequences as a result, through the loss of his business and not being able to work in the swimming industry, though he has obtained some employment as a labourer. The respondent’s evidence that he was rejected for a position for which he was qualified as a result of his convictions is mere supposition.
Appeal allowed.
Sentence below varied: to set aside the order that in respect of each count on both the first and second indictment no conviction be recorded; andto order that convictions be recorded for each count on the first indictment and for the count on the second indictment.
CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346 at [34] per French CJ and Gageler J and at [54]–[56] per Kiefel, Bell and Keane JJ. ↩
Ibid at [57] per Kiefel, Bell and Keane JJ. ↩
AB 46/42-47/16. ↩
AB 48/31-49/1. ↩
(1936) 55 CLR 499. ↩
(2010) 242 CLR 520. ↩
(2010) 242 CLR 520 at 538-539 [59]. ↩
(2010) 242 CLR 520 at 539 [60]. ↩
R v O'Sullivan and Lee; Ex parte Attorney-General (Qld) [2019] QCA 300 at [56]. ↩
R v TBH; Ex parte Attorney-General (Qld) [2025] QCA 190 at [43] quoting the observations of Doyle JA in R v Yaroslavceff [2022] SASCA 123 at [70]. ↩
CMB v Attorney-General (NSW) (2015) 256 CLR 346 at [33]-[36], [56] and [66]; R v TBH; Ex parte Attorney-General (Qld) [2025] QCA 190 at [5] and [42]. ↩
AB 46/5-10. ↩
R
EAD; Ex parte Attorney-General
(2015) 256 CLR 346
(2010) 242 CLR 520
(1936) 55 CLR 499
Appeal allowed. The order that no conviction be recorded for each count on either indictment was set aside. Convictions were ordered recorded for each count on the first indictment and for the count on the second indictment. The Court did not alter the probation or community service orders: [50], [66].
Third, in considering the exercise of the residual discretion, the onus lay on the Attorney-General to negate any reason why the residual discretion not to interfere should be exercised.1 A careful and distinct consideration of the question whether that onus has been discharged,2 supports a conclusion that the Attorney-General discharged that onus.
Whilst it may be accepted that the recording of convictions will have an effect on the progress of the respondent’s rehabilitation, a re-sentencing to record convictions is warranted in the present case. To do otherwise would not reflect a proper exercise of the sentencing discretion, under s 12 of the Penalties and Sentences Act 1992. It is for the greater benefit of the community that there be a proper exercise of the sentencing discretion.
BROWN JA: The respondent was convicted after pleas of guilty to seven counts of indecent dealing with a person with an impairment of the mind, and on a separate indictment to one count of using electronic communication to procure a child under 16 (second indictment). The respondent was sentenced to 3 years’ probation in respect of the first indictment and 80 hours of community service in respect of the second indictment. No conviction was recorded with respect to the offences on either the first or second indictment. A period of 79 days pre-sentence custody was taken into account but was not declared as time served.
The Attorney-General of Queensland (the Attorney-General) appeals the respondent’s sentence on two bases. First, that the learned sentencing judge erred in taking into account that the respondent would become a reportable offender in relation to the second indictment, and secondly, that the sentence imposed was manifestly inadequate.
There is no other reference in the sentencing judge’s reasons to the prospect of the respondent becoming a reportable offender particularly when discussing whether or not to impose a period of imprisonment or a conviction. The sentencing judge did refer to the respondent receiving supervision on probation, but did not make reference to whether or not he would be a reportable offender.
While whether or not an offender is to become a reportable offender is a consequence of a sentence rather than a part of the sentence per se, it had been the subject of submissions made to the sentencing judge and is a matter that can be relevantly considered, particularly in the context of whether or not to record a conviction.13 In the present case, the defence counsel submitted that it was a factor that was said to militate against a period of imprisonment given that the obligation had been described as very onerous and “[i]t provides a direct degree of supervision though not of a therapeutic nature”.
By the positive statement “…and you will become a reportable offender in relation to the second indictment…”14 (emphasis added), the sentencing judge was himself stating the position rather than acting on a misconception that the matter had been recorded by Dr Bala. Given that statement and the lack of any further clarification in that regard, it may be inferred that the sentencing judge did consider it a relevant matter to consider in determining the appropriate sentence. The statement was plainly wrong, insofar as it assumed that the automatic effect of the respondent being convicted of the offence on the second indictment was that he would become a reportable offender. In acting upon that assumption, the sentencing judge did take into account an irrelevant consideration. The Attorney-General has established ground one of her appeal. It is therefore unnecessary to consider the second ground and whether the sentence is manifestly inadequate.
Given the matters identified by Dr Bala, the ongoing monitoring which would result from him being a reportable offender would serve to protect and benefit the community. The potential detriments to the community of not recording a conviction were significant, particularly where the respondent was considered to require ongoing treatment and monitoring, and therefore was not rehabilitated to a level that the protection of the public was assured. The evidence does not support a finding that recording a conviction is so detrimental to the respondent’s economic and social wellbeing and rehabilitation that it would outweigh the public benefit served by recording a conviction.
In the circumstances of this case a conviction should have been recorded for the benefit of the protection of the community.
The orders of the Court should be:
R v Bunton [2019] QCA 214 at [36], citing R v Rogers [2013] QCA 192 at [40]-[42]. ↩
AB 46/8-9. ↩
CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346 at 359 [34] per French CJ and Gageler J and 365-366 [54]-[56] per Kiefel, Bell and Keane JJ. ↩
[2023] QCA 150 at [36], [56]-[57]. ↩
[2022] SASCA 123 at [69]–[72] per Doyle JA, although in dissent referred to with approval in R v Schulz; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 150 at [74] per Dalton JA and the Court in R v TBH; Ex parte Attorney-General (Qld) [2025] QCA 190 at [43]. ↩
R v ZB [2021] QCA 9 at [10]. ↩
[2021] QCA 9 at [10]. ↩
[2021] QCA 9 at [10]. Followed by Bond JA in R v RBN [2024] QCA 185. ↩
[2021] QCA 9 at [10]. ↩