R v Henshall - [2025] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

R v Henshall [2025] QCA 20

PARTIES:

R
v
HENSHALL, Daniel David
(applicant)

FILE NO/S:

CA No 53 of 2024
DC No 502 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 20 February 2024 (Moynihan KC DCJ)

DELIVERED ON:

Date of Orders: 13 February 2025
Date of Publication of Reasons: 4 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2025

JUDGES:

Flanagan and Boddice JJA and Williams J

ORDERS:

Date of Orders: 13 February 2025

1.   Leave to appeal against sentence is granted.

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”.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – GENERALLY – where the applicant was convicted of one count of sexual assault – where the conviction was recorded – where the applicant had a permanent disability – where the recording of a conviction meant that the applicant was a reportable offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – where the applicant honestly and reasonably believed that the complainant was 16 years old – whether the sentencing Judge erred in failing to give adequate reasons for the recording of a conviction – whether a conviction should be recorded in the re-exercise of the sentencing discretion

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 38
Penalties and Sentences Act 1992 (Qld), s 12

R v Mirza; Ex parte Attorney-General (Qld)[2008] QCA 23, considered
R v RBN[2024] QCA 185, applied
R v ZB (2021) 287 A Crim R 519; [2021] QCA 9, applied

COUNSEL:

A J Edwards KC for the applicant
J D Finch for the respondent

SOLICITORS:

Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FLANAGAN JA: For the reasons given by Williams J, I joined in the making of the orders on 13 February 2025.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Henshall

Details

AGLC: R v Henshall [2025] QCA 20
Case: [2025] QCA 20
Decision Date: 13 February 2025

CaseChat Overview and Summary

The Applicant, Henshall, was convicted of one count of sexual assault and the conviction was recorded. This resulted in the Applicant becoming a reportable offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). The Applicant had a permanent disability and had honestly and reasonably believed that the complainant was 16 years old at the time of the offence. The Applicant sought leave to appeal against the sentence, arguing that the sentencing Judge erred in failing to give adequate reasons for the recording of a conviction. The Applicant contended that in the re-exercise of the sentencing discretion, a conviction should not be recorded.

The court considered whether the sentencing Judge erred in failing to give adequate reasons for the recording of a conviction. The sentencing Judge referred to several factors, including the Applicant's timely plea of guilty, the facts of the offending, the complainant's victim impact statement, the Applicant's age, limited criminal history, subjective features such as family support and personal circumstances, and the Respondent's contention for a sentence of imprisonment. The sentencing Judge found that there were exceptional circumstances and ordered a sentence of probation for 12 months and recorded the conviction. The Applicant argued that the sentencing Judge's remarks were not sufficient and that a conviction should not be recorded.

The court found that the sentencing Judge's remarks were sufficient. The sentencing Judge had balanced the relevant considerations and the considerations in section 12(2) of the Penalties and Sentences Act in deciding whether to record the conviction. The sentencing Judge also noted that recording a conviction would subject the Applicant to the onerous obligations of the reporting legislation, and that the Applicant would agree to being placed on probation and comply with the order. Therefore, the court allowed the appeal against sentence and varied the order by substituting the words "the conviction" with the words "no conviction".

Orders

Orders of the court

Date of Orders: 13 February 2025

1. Leave to appeal against sentence is granted.

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”.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Accordingly, it was submitted that in all the circumstances the sentencing Judge’s remarks were sufficient.Consideration 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. The first issue is whether the sentencing Judge erred in failing to give adequate reasons for the recording of a conviction. In the sentencing remarks the sentencing Judge relevantly refers to the following factors:(a)The timely plea of guilty, with the Applicant pleading guilty at an early time. The Applicant had expressed remorse and cooperated with the authorities.(b)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.(c)The Complainant’s victim impact statement.(d)The Applicant was 35 years old at the time of offending and was 37 at the time of sentence.(e)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.(f)There was no pre-sentence custody.(g)The Applicant’s subjective features, including:(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.(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.(iii)The medical reports in respect of the Applicant’s physical challenges.(h)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.(i)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”.(j)The Applicant submitted that there were “exceptional circumstances” and that a sentence of probation for 12 months and no conviction recorded should be imposed. 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”.

CITATION:	R v Henshall [2025] QCA 20
PARTIES:	R v HENSHALL, Daniel David (applicant)
FILE NO/S:	CA No 53 of 2024 DC No 502 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 20 February 2024 (Moynihan KC DCJ)
DELIVERED ON:	Date of Orders: 13 February 2025 Date of Publication of Reasons: 4 March 2025
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2025
JUDGES:	Flanagan and Boddice JJA and Williams J
ORDERS:	Date of Orders: 13 February 2025 1. Leave to appeal against sentence is granted. 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”.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – GENERALLY – where the applicant was convicted of one count of sexual assault – where the conviction was recorded – where the applicant had a permanent disability – where the recording of a conviction meant that the applicant was a reportable offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – where the applicant honestly and reasonably believed that the complainant was 16 years old – whether the sentencing Judge erred in failing to give adequate reasons for the recording of a conviction – whether a conviction should be recorded in the re-exercise of the sentencing discretion Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 38 Penalties and Sentences Act 1992 (Qld), s 12 R v Mirza; Ex parte Attorney-General (Qld)[2008] QCA 23, considered R v RBN[2024] QCA 185, applied R v ZB (2021) 287 A Crim R 519; [2021] QCA 9, applied
COUNSEL:	A J Edwards KC for the applicant J D Finch for the respondent
SOLICITORS:	Potts Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent