R v Riseley; ex parte Attorney-General
[2009] QCA 285
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- Appeal Determined (QCA)
- R v Riseley; ex parte Attorney-General[2009] QCA 285
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R v Riseley; ex parte Attorney-General[2009] QCA 285
R v Riseley; ex parte Attorney-General[2009] QCA 285
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 22 September 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 September 2009 |
JUDGES: | McMurdo P, Keane and Holmes JJA |
ORDER: | In CA No 155 of 2009:
In CA No 160 of 2009:
|
CATCHWORDS: | CRIMINAL LAW – SENTENCE – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDER – where applicant convicted on own plea of manslaughter – where victim 19 day old baby – where applicant acted out of weariness and frustration – where applicant failed to obtain medical aid for victim until morning after incident – whether offence beyond "norm" – whether serious violence offence declaration manifestly excessive Corrective Services Act 2006 (Qld), s 182 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, cited |
COUNSEL: | In CA No 155 of 2009: In CA No 160 of 2009: |
SOLICITORS: | In CA No 155 of 2009: In CA No 160 of 2009: |
[1] McMURDO P: The Attorney-General's appeal should be dismissed. The respondent's application for leave to appeal against sentence should be granted and his appeal allowed, but only to the extent of setting aside the serious violent offence declaration and setting a parole eligibility date at 13 May 2011.
[2] I agree with Keane JA's reasons and proposed orders.
[3] KEANE JA: On 10 November 2007 the respondent unlawfully killed a 19 day old baby boy, Isaac Lazarus, who was the child of a young woman with whom the respondent was living at the time. On 13 March 2009 the respondent was convicted, on his own plea, of the offence of manslaughter.
[4] On 26 May 2009 he was sentenced to eight years imprisonment. His offence was declared to be a serious violent offence. The consequence of the declaration is that the respondent must serve 80 per cent of his sentence before becoming eligible for parole.[1] A period of 560 days pre-sentence custody was declared to be time already served.
[5] Pursuant to s 669A(1) of the Criminal Code 1899 (Qld), the Attorney-General of Queensland appeals to this Court against the sentence contending that it was manifestly inadequate. In particular, it is said that the sentence failed to reflect the gravity of the offence, failed to take sufficiently into account the aspect of general deterrence, and gave too much weight to factors going to mitigation.
[6] The respondent applies for leave to appeal against his sentence on the ground that the sentence imposed, including the imposition of the serious violent offence declaration, was manifestly excessive.
[7] I shall summarise the circumstances of the offence, the respondent's personal circumstances and the decision of the learned sentence judge before discussing the parties' arguments.
The circumstances of the offence
[8] The relationship between the respondent and the mother of the deceased infant began shortly before the child was born.
[9] At about 1.00 am on the morning of 10 November 2007, the child's mother was awakened by the crying of the child. She saw the respondent holding the child and asked if "everything [was] okay". The respondent replied: "Yes."
[10] The respondent's 14 year old brother was staying overnight in the lounge room. He heard the respondent say: "Go to sleep. Stop crying." in what was said to be an ordinary tone of voice. At this point the respondent brought the child to his brother. The child was pale and having trouble breathing. The respondent said something about needing to get the child to a hospital. The respondent seemed to be worried, but he soon returned to bed.
[11] In the morning the child was gasping for air and would not take his bottle. The respondent performed CPR on him. The child was then taken to a neighbour's house where a nurse performed CPR on him. At about 10.30 am an ambulance was called. He was taken to hospital. His heart stopped at 9.50 pm.
[12] The child's death was caused by severe brain injuries inflicted within the preceding 12 to 24 hours. He had suffered many injuries, but most serious was a lineal skull fracture to each of the left and right sides of the head. These injuries were consistent with severe blunt force injury to each side of the head. These injuries were inflicted by the application of strong force.
[13] The child had also suffered contusions throughout the length of the spinal column and subdural and subarachnoid haemorrhages. These and other serious injuries were consistent with being held around the chest and shaken repeatedly. The child also suffered a fractured leg and a fractured rib.
[14] The respondent gave differing accounts of the circumstances in which the child was injured. On the night of 10 November 2007 he said that the child was fine all night but was cold and blue in the morning. On 12 November 2007 he told police: "I'm so sorry. I didn't mean for this to happen." He went on to say that he had picked the child up when he was crying during the night and squeezed him out of frustration and sleep deprivation. At this point the child was hiccupping as if he was struggling for breath. The respondent said that he had not realised that he had hurt the child, although he checked on him twice because he was concerned that he might have hurt him. The respondent denied mentioning to his younger brother that he thought that the child should go to hospital. He said that after he spoke to his brother, he put the child back in his cot at which point he was breathing normally.
[15] On 15 November 2007 the respondent told the child's mother that the police had forced him to admit things he did not do, and that he had only cuddled the child and returned him to the cot. Later he said he had accidentally bumped the child's head on the wall beside the cot, but the child was breathing "okay".
[16] On 20 November 2007 he told the child's mother that he had accidentally dropped the child, but that he was fine. He again denied telling his brother that he thought something was wrong with the child. On 27 November, in a further conversation with the child's mother, he continued to assert that he had only dropped the child.
[17] On 7 July 2008, when the respondent was committed for trial, he was asked by the Magistrate if he wished to enter a plea. He said: "What happened was accidental and I had no intent to hurt the little fellow and it was just that the circumstances of accident, I collapsed and fell into the cabinet with him in my arms."
The respondent's personal circumstances
[18] The respondent was 21 years old when he committed the offence. He was 22 years old when he was sentenced.
[19] The respondent's criminal history is of little relevance. It consists of convictions for unlawful use or possession of motor vehicles, house breaking and breaches of domestic violence orders. None of these offences involved actual personal violence. He has not previously been imprisoned.
[20] A report by Dr Freeman, a clinical psychologist, was tendered at sentence on the respondent's behalf. From that report, it appears that the respondent has a history of substance abuse which began when he was eight years old. The respondent's childhood was unhappy: his parents separated and he was subjected to sexual abuse by one of his mother's male friends. He said that he began smoking cannabis to ease the emotional anguish of this sexual abuse. Psychological testing showed that he was below average intelligence.
[21] The respondent is the father of four children with his former partner. That relationship commenced when he was 15 years old.
[22] The respondent has a good work history. He was employed as a long haul truck driver at the time of his offence.
[23] Dr Freeman's opinion is that the respondent has good prospects of rehabilitation and is of low risk of re-offending.
The sentence
[24] At sentence, the Crown Prosecutor submitted that the appropriate range of punishment was between eight and 10 years imprisonment, with a serious violent offence declaration being warranted by the level of violence used against a defenceless infant and the subsequent denial of medical treatment. On the respondent's behalf, it was submitted that a sentence of eight years imprisonment with parole eligibility after three years and six months was appropriate. It was further submitted that if a serious violent offence declaration were made, the appropriate range would be seven to nine years with the proper penalty being seven years.
[25] The learned sentencing judge accepted that the respondent acted as he did out of tiredness and frustration. Her Honour said:
"In [R v Ross], Court of Appeal No 347 of 1996, the Court reviewed a number of sentences imposed for infant manslaughter and noted that the unlawful killing of a young child arises through circumstances ranging from killing in the course of systematic, gratuitous abuse (usually by a de facto), killing because of accumulated frustrations or a single occasion of frustration, or killing by a mother who is mentally disturbed as an aftermath of the birth. That observation was quoted with approval by the Court of Appeal in [R v Hall; ex parte Attorney-General of Qld] [2002] QCA 125.
The present case is within the second category identified in Ross but, as the prosecutor submitted, there are unexplained features of this killing. By all accounts the evening had been quite a routine one. The boy Joshua had not heard any excessive crying and he did not notice anything unusual about your tone of voice. You told police in the record of interview that you were very tired not having slept for three nights. There is no suggestion that you were adversely affected by alcohol or drugs. But the nature of the injuries is consistent only with a brutal assault on a helpless baby.
There was severe shaking, there were one or two severe blows to the head, and there were other blows to the head."
[26] Her Honour went on to discuss the respondent's personal circumstances. Of particular relevance for present purposes are the following observations:
"In the circumstances it seems that the risk of re-offending is not high and your prospects for rehabilitation are good. You have performed well on remand and undertaken what limited courses have been available to you. Dr Freeman has stressed the importance of your avoiding illicit substances and noted that you appear motivated to do so."
[27] The learned sentencing judge summarised the Crown's contention that the offence should be declared to be a serious violent offence. Her Honour said:
"The prosecutor submitted that the following features should be taken into account: the inexplicable aspects of the offending to which I have already referred, the high level of violence directed at the child's head in addition to the severe shaking, how small the child was, and your failure to seek help until mid-morning, by which time it was too late. Your counsel submitted that I should also take into account on this point your antecedents and your progress in prison."
[28] The learned sentencing judge accepted the Crown's contention. In this regard, her Honour said:
"'… The discretionary powers granted by section 161B(3)(iv) [of the Penalties and Sentences Act 1992 (Qld)] are to be exercised judicially and so with regard to the consequences of making a declaration.
A critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80 per cent of the head sentence before being able to apply for parole. By definition, some of the offences in the schedule to the Act will not necessarily, but may, involve violence as a feature, such as trafficking in dangerous drugs or maintaining a sexual relationship with a child.
The discrete discretion granted by section 161B(3)(iv) requires the existence of factors which warrant its exercise but the overall amount of imprisonment to be imposed should be arrived at having regard to the making of any declaration or not doing so.
…
… [T]he just sentence which is the result of a balancing exercise may well require that the sentence imposed for [a] declared serious violent offence be toward the lower end of the otherwise available range of sentences where the circumstances of the offence do not take it out of the norm for that type …'
…
I accept the submissions of the prosecutor that the factors she enumerated do take this case out of the norm.
My starting point in the sentence is that the range of penalty for manslaughter of an infant perpetrated out of frustration is eight to
10 years.
Where the sentence should fall within the range is affected by your youth, your plea of guilty, your antecedents and your prospects of rehabilitation. Those factors would all suggest that in your case it would be appropriate to sentence at the lower end or bottom of the range.
But, as I have said, I do think this is a case out of the norm, and so the exercise of the discretion to impose a serious violent offence declaration is enlivened. If I sentenced you to seven years with a declaration, you would have to serve a minimum of 5.6 years. If I sentenced you to eight years with a declaration, you would have to serve a minimum of 6.4 years. If I sentenced you to nine years without a declaration, you would have to serve a minimum of 4.5 years.
In my view the circumstances of the offending were such that a penalty of eight years' imprisonment with a declaration would be a proper sentence to take account of the need for punishment, the need for deterrence (both personal and general), the need to protect the community and the need to foster your prospects of rehabilitation."
The appeal by the Attorney-General
[29] On behalf of the Attorney-General, it is argued that "for unlawful killings of this type a sentence of less than 10 years imprisonment, which mandates a declaration that the offence is a serious violent offence, is manifestly inadequate." This submission was not made to the learned sentence judge. It is not consistent with the submissions which were made by the Crown, or with previous decisions of this Court concerned with what the learned sentence judge decided as the second category of infant manslaughter. While it must be acknowledged that the law must maintain a level of deterrence for the protection of vulnerable infants,[2] the submission made on behalf of the Attorney-General should not be accepted in the circumstances of this case.
[30] In R v Hall; ex parte Attorney-General of Qld,[3] the offender pleaded guilty to the manslaughter of his baby son. The baby suffered serious brain damage from one incident of shaking. The baby did not die for 10 months; he spent this time hospitalised and in pain. Hall was 40 years old with a criminal history which included assault occasioning bodily harm to another baby. He was initially sentenced to four years imprisonment. The Attorney-General appealed against that sentence. In this Court, Williams JA, with whom Philippides J agreed, said:[4]
"Given the circumstances of the offence and the respondent's criminal history a head sentence in the range 8 to 9 years would ordinarily be called for. That has to be discounted for the plea of guilty and the other mitigating circumstances, primarily the personal factors relating to the respondent. When such considerations are given effect to the appropriate sentence is one of six years imprisonment."
[31] In Hall, White J said:[5]
"Here the learned sentencing judge gave due regard to all of the relevant factors but it seems to me that he gave insufficient weight to the respondent's past history of violence and in particular the offence in 1983 where injuries were inflicted on his new born baby, and the long period of suffering, so far as can be understood, of the infant, Amituanai (1995) 78 A Crim R 588. As Williams JA has noted, since this is an Attorney's appeal, moderation is called for. I agree with his Honour that given the circumstances of the offence and the respondent's criminal history a head sentence in the range of eight to nine years would ordinarily be called for. Taking into account the respondent's plea of guilty and matters personal to him, particularly his intellectual deficits as well as the need for deterrence which is an important function of the court in attempting to protect the most vulnerable in the community, the appropriate sentence is one of six years imprisonment."
[32] It is to be noted here that the present respondent was a much younger man than Hall. Furthermore, Hall had a criminal history involving personal violence against an infant. And yet in Hall after the Court took into account the offender's plea of guilty, a sentence of six years imprisonment was imposed. On appeal, the Attorney-General sought a declaration that the offence was a serious violent offence and that application was refused.[6]
[33] In R v Chard; ex parte A-G (Qld),[7] a case where ultimately fatal injuries were inflicted on a seven and a half week old baby over a four day period. This Court allowed an appeal by the Attorney-General effectively substituting a period of seven years imprisonment for a sentence of six years. Williams JA, with whom the Chief Justice and Jones J agreed, said:
"The prolonged abuse of a baby of this age would call for a head sentence at least in the range eight years to 10 years; the offence is far more serious than the isolated instance of shaking in Hall [R v Hall; ex parte Attorney-General of Qld [2002] QCA 125]."
[34] The Chief Justice emphasised the protracted nature of the physical abuse of the child in the following additional observations:[8]
"This was not a case of isolated cruelty borne of anger or frustration. It is the sustained character of the treatment meted out to the infant, that the respondent 'contrived occasions to be alone with the child' during which he inflicted injury, and that the respondent endeavoured to conceal his responsibility by casting the blame onto others, which in my view placed this case in a plane beyond that applicable to Hall [2002] QCA 125.
On the other hand, the respondent's plea of guilty, and his less serious criminal history (than Hall's), warrant a sentence of seven years imprisonment, in the context of the range of eight to nine years indicated in Hall."
[35] In the present case there was not the prolonged abuse which occurred in Chard. This affords to regard the respondent's criminality as no greater that that involved in Chard even though the fact that the victim in this case suffered serious head injuries, considered alone, might suggest otherwise.
[36] Reference to this Court's decisions in Chard and Hall suggests that a sentence of eight years imprisonment, even without a serious violent offence declaration is a distinctly heavy sentence for this category of offence once mitigating factors such as the plea of guilty and the respondent's rehabilitation are taken into account. It is to be noted that no submission was made to this Court on the appeal that Chard and Hall should be regarded as out of step with other decisions of this Court or of other intermediate courts of appeal in Australia. There is, therefore, no reason why this Court should not continue to regard Chard and Hall as affording authoritative guidance in relation to this category of case.
[37] This Court is entitled, in the exercise of its discretion under s 669A(1) of the Criminal Code, to decline to act upon a submission made for the first time on appeal and contrary to the position adopted by the Crown at sentence. It is well settled that only in exceptional cases will this Court act upon a submission by the prosecution that a sentence higher than that sought by the prosecution before the learned sentencing judge should be imposed by this Court.[9]
[38] In my respectful opinion, no exceptional circumstances have been identified which would warrant the prosecution being allowed a "second bite of the cherry".[10] In truth, the sentence which was imposed in this case was more severe than the sentences imposed by previous decisions of the Court in cases of similar criminality. The appeal by the Attorney-General should be dismissed.
The respondent's application for leave to appeal
[39] The issue arises on the respondent's application whether the sentence was manifestly excessive. The gravamen of the respondent's argument on his application for leave to appeal concerns the exercise of the discretion to declare his offence to be a serious violent offence. In particular, it is said that the circumstances of this case were not such as to take it outside the "norm"[11] for the offence of manslaughter so as to warrant the making of the declaration.
[40] The first argument advanced on the respondent's behalf is that it is not possible to conclude that this case is an example of manslaughter outside the "norm" because the degrees of culpability in cases of manslaughter are so various.[12] Accordingly, so it is said, in conformity with this Court's decision in R v McDougall and Collas,[13] a serious violent offence declaration could not properly be made. This argument misunderstands the decision in R v McDougall and Collas.
[41] In R v McDougall and Collas, this Court said:[14]
"It is where the making of a declaration is discretionary that a difference in views has arisen about whether declarations are available as a sentencing tool, when the circumstances are not beyond the norm for that offence (Jerrard JA can confess to having supported each of the different views at different times; see for example R. v. BAW [2005] QCA 334 and R. v. BAX [2005] QCA 365). The following observations may assist sentencing courts:
• the discretionary powers granted by s. 161B(3) and (4) are to be exercised judicially and so with regard to the consequences of making a declaration;
a critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80 per cent of the head sentence before being able to apply for parole (See the judgment of McMurdo P. in R. v. Eveleigh [2003] 1 Qd.R. 398 citing the majority view in R. v. DeSalvo (2002) 127 A.Crim.R. 229). By definition, some of the offences in the Schedule to the Act will not necessarily – but may – involve violence as a feature, such as trafficking in dangerous drugs or maintaining a sexual relationship with a child;
• the discrete discretion granted by s. 161B(3)(4) requires the existence of factors which warrant its exercise, but the overall amount of imprisonment to be imposed should be arrived at having regard to the making of any declaration, or not doing so (See the judgment of Holmes J. in R. v. Bidmade (2003) 39 M.V.R. 470);
• the considerations which may be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing;
• the law strongly favours transparency and accessible reasoning (Markarian v. R. (2005) 215 A.L.R. 213 at 225 [39]), and accordingly sentencing courts should give reasons for making a declaration, and only after giving the defendant an opportunity to be heard on the point (R. v. Cunningham [2005] QCA 321 at [5]; C.A. No. 145 of 2005, 29 August 2005);
• for the reasons to show that the declaration is fully warranted in the circumstances (A requirement stated by McPherson J.A. in R. v. Collins [2000] 1 Qd.R. 45 at 56, and approved by the whole court in R. v. Bojovic [2000] 2 Qd.R. 183 at 190 [29]) it will usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them (A proposition established in R. v. Collins [2000] 1 Qd.R. 45 and repeated in R. v. Orchard [2005] QCA 141);
• without that last feature, it may be difficult for the reasons to show that the declaration was warranted;
• where a discretionary declaration is made, the critical question will be whether the sentence with that declaration is manifestly excessive in the circumstances; accordingly the just sentence which is the result of a balancing exercise may well require that the sentence imposed for that declared serious violent offence be toward the lower end of the otherwise available range of sentences;
• where the circumstances of the offence do not take it out of the 'norm' for that type, and where the sentencing judge does not identify matters otherwise justifying the exercise of the discretion, it is likely that the overall result will be a sentence which is manifestly excessive, and in which the sentencing discretion has miscarried; probably because of an incorrect exercise of the declaration discretion."
[42] That a serious violent offence declaration may be appropriate in a manslaughter case was recognised in R v A[15] and again by this Court in R v McDougall and Collas:[16]
"The considerations which may lead a sentencing judge to conclude that there is good reason to postpone the date of eligibility for parole will usually be concerned with circumstances which aggravate the offence (R. v. DeSalvo (2002) 127 A.Crim.R. 229 at 231 [10] and 232 [15]) in a way which suggests that the protection of the public or adequate punishment (Cf. s. 9(3)(b) of the Act) requires a longer period in actual custody before eligibility for parole than would otherwise be required by the Act having regard to the term of imprisonment imposed (R. v. Eveleigh [2003] 1 Qd.R. 398 at 430–431 [111]). In that way, the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside 'the norm' for that type of offence (R. v. DeSalvo (2002) 127 A.Crim.R. 229 at 230 — 231 [8] — [9], and 232 [16]; R. v. BAW [2005] QCA 334 at [27] — [28]).
An example of a sentence in which the learned judge did express reasons, upheld on appeal, for the discretionary declaration of a serious violent offence for an offence of manslaughter, is in R. v. AR. [2003] QCA 538. The judge referred to a relatively long period of pre-planning, the preparation for commission of the offence, a strong element of revenge, the fact that that applicant was the instigator of the offences and the principal offender, and was responsible for the vast majority of the violence inflicted on the complainant. Weapons were used."
[43] The fact is that the victim of this manslaughter was a helpless infant. How the injuries sustained by the deceased child came to be inflicted by the respondent is still not fully explained by him. The nature of the injuries was such that they could only have been inflicted by a brutal assault. That is especially so in relation to the head injuries. And apart from the serious aggravating fact that the life that was lost was that of a helpless baby, the impact on the victim's family in this case was devastating.
[44] On the other hand, it does not appear that there was prolonged violence against the child. The respondent acted out of weariness and frustration. There was no pre-planning or use of a weapon. The respondent was a very young man at the time. But while it may be accepted that the respondent was adversely affected by tiredness and frustration, his failure to take steps earlier to render the child medical aid is a circumstance of aggravation: it does suggest a degree of callous disregard for the child. It is also, however, explicable as an error of judgment by a tired and immature young man who suffered serious social disadvantage and is of less than average intelligence.
[45] It is also said on the respondent's behalf that the learned sentencing judge failed to take into account the respondent's antecedents and his progress in terms of rehabilitation.
[46] It is apparent from her Honour's sentencing remarks that, while she was alive to the respondent's low risk of re-offending and his good prospects of rehabilitation, she considered that the protection of the public was a consideration relevant to the sentence imposed in this case.
[47] In my respectful opinion, the principal considerations which inform the sentence in this case relate to general deterrence and the necessity, on behalf of the community, to denounce offences of this kind. The need to protect the public from a likely occurrence of personal violence by the respondent himself does not loom so large. There is little reason to think that the respondent will re-offend in this way.
[48] In any event, I am unable to see how any of the considerations relevant to the sentencing of the respondent can justify the much more severe penalty imposed on the respondent than was imposed on the offenders in Hall and Chard. In Hall, after mitigating circumstances and the offender's plea of guilty were taken into account, the offender was sentenced to six years imprisonment which meant that he was obliged to serve three years imprisonment before becoming eligible for consideration for parole. The sentence imposed on the respondent in this case obliges him to serve 6.4 years in actual custody before he will become eligible for consideration for parole. In my respectful opinion, a disparity of this order is not justifiable by any of the considerations which bear upon sentence. Even if one were to regard the criminality of the offending in this case as closer to that involved in Chard than in Hall a sentence which obliged the respondent to serve three and a half years in custody before becoming eligible for parole would be appropriate especially bearing in mind the desirability of affording the respondent the benefit of a lengthy period of supervision on parole.
[49] I conclude that the sentence imposed on the respondent was manifestly excessive. In my opinion, a proper sentence requires the removal of the serious violent offence declaration and the fixing of a parole eligibility date at about the three and a half year mark.
Orders
[50] The Attorney-General's appeal should be dismissed.
[51] The respondent's application for leave to appeal against sentence should be granted. His appeal should be allowed, but only to the extent of setting aside the serious violent offence declaration and setting a parole eligibility date at 13 May 2011.
[52] HOLMES JA: I agree with the reasons of Keane JA and with the orders his Honour proposes.
Footnotes
[1] See s 182 of the Corrective Services Act 2006 (Qld).
[2] R v Irvine & Attorney-General of Queensland [1997] QCA 138 at 3.
[3] [2002] QCA 125.
[4] [2002] QCA 125 at [17].
[5] [2002] QCA 125 at [39].
[6] [2002] QCA 125 at [18] – [19].
[7] [2004] QCA 372 at [23].
[8] [2004] QCA 372 at [2] – [3].
[9] Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321 at 341 [62]; R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154 at [93] – [102]; R v Lacey; ex parte A-G (Qld) [2009] QCA 274 at [148], [150], [153], [156].
[10] Cf R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154 at [93] – [102]; R v Lacey; ex parte A-G (Qld) [2009] QCA 274 at [156].
[11] R v McDougall and Collas [2007] 2 Qd R 87 at 96 – 97 [19], [21] – [23].
[12] R v Potter; ex parte A-G (Qld) (2008) 183 A Crim R 497 at [4].
[13] [2007] 2 Qd R 87.
[14] [2007] 2 Qd R 87 at 96 – 97 [19] (citations footnoted in original).
[15] [2003] QCA 538.
[16] [2007] 2 Qd R 87 at 97 [21] – [22].