R v Auer; ex parte Attorney-General
[2011] QCA 222
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Auer; ex parte Attorney-General[2011] QCA 222
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R v Auer; ex parte Attorney-General[2011] QCA 222
R v Auer; ex parte Attorney-General[2011] QCA 222
SUPREME COURT OF QUEENSLAND
PARTIES: | R |
FILE NO/S: | CA No 90 of 2011 |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 6 September 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 August 2011 |
JUDGES: | Muir and Fraser JJA and Margaret Wilson AJA |
ORDERS: | 1. Appeal against sentence allowed.2. Sentence varied by increasing from four years to nine years the term of imprisonment imposed on count 1.3. Sentence varied by setting aside the sentence imposed on count 9 and substituting a sentence of three years imprisonment to be served concurrently with the sentences on the other counts.4. Sentence varied by omitting the order fixing 30 August 2012 as the parole eligibility date.5. Declare that the 348 days spent in presentence custody between 30April2010 and 12 April 2011 be taken to be time already served under the sentences. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to 16 sexual offences – where the respondent was convicted of one count of maintaining a sexual relationship with a child, five counts of indecent treatment of a child under 16 years and under 12 years and under his care, five counts of rape and five counts of indecent treatment of a child under 16 years and under 12 years – where the victims of the offences were six female children – where the respondent was sentenced to seven years imprisonment made up of four years for the maintaining offence and a cumulative term of three years for one of the rapes, the sentences for the other offences being concurrent – where the respondent’s conduct involved grave breaches of trust – where the respondent had a lengthy criminal history of sexual and other offending – where the evidence against the respondent in 12 of the 16 counts of which he was convicted depended solely or substantially on his admissions – whether the sentences were manifestly inadequate Child Protection (Offender Reporting) Act 2004 (Qld) Corrective Services Act 2006 (Qld), s 182, s 184 Criminal Code 1899 (Qld), s 210, s 229B, s 349, s 669A Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Penalties and Sentences Act 1992 (Qld), s 9, s 161B AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered |
COUNSEL: | A W Moynihan SC, with R M Britnell, for the appellant |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant |
- MUIR JA: I agree with the reasons of Margaret Wilson AJA and with the orders she proposes.
- FRASER JA: I have had the advantage of reading the reasons for judgment of Margaret Wilson AJA. I agree with those reasons and with the orders proposed by her Honour.
- MARGARET WILSON AJA: The Attorney-General has appealed against the leniency of the sentences imposed on the respondent,[1] who pleaded guilty to 16 sexual offences.
The offences and the sentences
- The respondent’s offending extended over four months between late June and late October 2009. He pleaded guilty to –
- one count of maintaining a sexual relationship with a child;
- five counts of indecent treatment of a child under 16 years (in each case the child being under 12 years and under his care);
- five counts of rape; and
- five counts of indecent treatment of a child under 16 years (in each case the child being under 12 years).
- The victims of the offences were six female children. I will refer to them as “Child 1”, “Child 2”, et cetera.
- On 13 April 2011, the respondent was sentenced to a period of seven years imprisonment, which was made up of four years imprisonment for the maintaining offence, and a cumulative term of three years imprisonment for one of the rapes. The sentences for the other offences were concurrent. Pre-sentence custody of 348 days was declared time already served, and 30 August 2012 (effectively after two and a half years from when the sentence began) was fixed as the date upon which he would be eligible for parole. Further particulars of the sentences are contained in the table annexed to these reasons for judgment (“Annexure A”).
- To succeed in this appeal, the appellant must demonstrate error on the part of the sentencing judge.[2] Senior counsel for the appellant submitted that the sentencing judge erred in two respects –
- in finding that the applicable range was five to seven years imprisonment; and
- in having regard to whether or not the respondent might become subject to an order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).
The appellant submitted that given the respondent’s criminal history, and the need to protect children from the risk of the respondent re-offending, then the proper sentence was 10 years imprisonment, which would necessarily attract a serious violent offence declaration.
Further, he submitted that even if a head sentence of seven years imprisonment was appropriate, the sentencing judge erred in fixing the parole eligibility date. He submitted that the sentencing judge ought to have imposed a term of seven years for the maintaining offence and made a declaration of the commission of a serious violent offence[3] – with the consequence that the respondent would have to serve 80 per cent of that term before becoming eligible for parole.
- Counsel for the respondent conceded that the range of five to seven years imprisonment was probably too low. He submitted that seven years was at the bottom of the appropriate range, without identifying the top end. The upshot of his submission was that seven years imprisonment was within range, albeit at the bottom of the range.
The circumstances of the offending
- The respondent’s conduct was fairly described by the sentencing judge as appalling, and as “classic grooming of a child for the purposes of sexual gratification.”
Child 1(aged 8 to 9 years)
- The principal victim, Child 1, was the daughter of the respondent’s girlfriend, and the offending all occurred in or around the house he shared with the child’s mother.
- The respondent pleaded guilty to maintaining an unlawful sexual relationship with her over a four month period. He told police that after he moved into the household he assumed responsibility for bathing Child 1. After she showered, he would dry her and ask her if she had cleaned herself properly in between the legs. He would place a finger in her labia, then sniff his finger and tell her whether she was clean. Then he would rub the child’s vagina to “clean” her. This happened about twice a month. He also admitted that every night over a three week period, after the child wet the bed, he wiped her vagina in a way that was designed to gratify him but otherwise unnecessary. He admitted having an erection sometimes when he was changing her, and that on one occasion she grabbed his erect penis. On four or five occasions when he saw her scratching her groin area he pushed her underwear to one side and rubbed or tickled her vagina. On one of those occasions the child said that what he did made her feel “funny”, and he took the opportunity to discuss masturbation with her. He helped her masturbate herself on two occasions.
- There were two counts of indecent treatment of Child 1. The first related to an occasion when the respondent took a photograph of the child’s vagina with his mobile telephone. The second related to an occasion when the child entered his bedroom when he was having sexual intercourse with her mother. He was aware of the child’s presence, although her mother was not. He continued to have intercourse. Sometime later, when the child asked him what she had witnessed, he discussed sexual intercourse with her and encouraged her to masturbate herself.
- In the fortnight prior to 30 October 2009, the respondent digitally raped Child 1. He put his finger into the area of her vagina but apparently outside the vaginal passage, in the area of the labia.
- Child 1 was interviewed by police on four separate occasions, but did not make any allegations of a sexual nature against the respondent, and the charges relating to her could not have been brought but for admissions the respondent made to police.
Child 2 (aged 8 to 9 years)
- The offences involving Child 2 were committed when she and her sister were staying overnight at the residence the respondent shared with his girlfriend. He woke the child and fondled her vagina under her clothes. She told him to stop, at which point the respondent’s girlfriend entered the room and told him to leave. The child’s complaint led to the involvement of the police. The respondent admitted also touching her on the vagina later in the day when she was awake.
Child 3 (aged 7 to 8 years)
- Child 3 lived in a unit adjoining that occupied by the respondent and his girlfriend. When she was playing with Child 1, the respondent chased her, and put his hand down her pants and penetrated her anus with his finger. The child told him to stop and complained to her mother that the respondent had been touching her. That conduct constituted the rape for which the respondent was sentenced to three years imprisonment cumulative on the other sentences.
- The offence of indecent treatment of Child 3 arose out of another incident in which the respondent held the child in the crotch area when she was playing in the yard.
Child 4 (aged 7 years)
- The respondent volunteered to police that on three occasions he touched Child 4’s vagina outside her clothing. The child did not recall the particular behaviour, but had a recollection of his touching her crotch area.
Child 5 (aged 9 years)
- When Child 5 was staying at the respondent’s residence, he entered the bedroom she was sharing with Child 1 and raped her by digitally penetrating her vagina. He told police that the penetration occurred accidentally, but by pleading guilty he acknowledged that the penetration was a willed act. The child did not recall the incident. He volunteered to police that later on the same day he touched her on the bottom when giving her a hug.
Child 6 (aged 5 years)
- Child 6 and her sister attended the respondent’s residence to play with Child 3 twice. On one occasion, when she was playing hide and seek, the respondent caught her, picked her up, and put his hand into her pants touching her vagina.
Penalties and Sentences Act 1992 s 9
- Under s 9 of the Penalties and Sentences Act 1992 (Qld) –
“(5)Also, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years—
(a)...
(b)the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.
...
(6)In sentencing an offender to whom subsection (5) applies, the court must have regard primarily to—
(a)the effect of the offence on the child; and
(b)the age of the child; and
(c)the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and
(d)the need to protect the child, or other children, from the risk of the offender reoffending; and
(e)the need to deter similar behaviour by other offenders to protect children; and
(f)the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and
(g)the offender’s antecedents, age and character; and
(h)any remorse or lack of remorse of the offender; and
(i)any medical, psychiatric, prison or other relevant report relating to the offender; and
(j)anything else about the safety of children under 16 the sentencing court considers relevant.
...
(8)In sentencing an offender, a court must not have regard to whether or not the offender—
(a)may become, or is, the subject of a dangerous prisoners application; or
(b)may become subject to an order because of a dangerous prisoners application.
(8)In determining the appropriate sentence for an offender who has 1 or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to—
(a)the nature of the previous conviction and its relevance to the current offence; and
(b)the time that has elapsed since the conviction.”
Discussion
- The maximum penalties for the offences were life imprisonment for the maintaining offence[4] and the rapes,[5] and 20 years for the unlawful and indecent treatment offences.[6]
- The respondent’s conduct involved grave breaches of trust. As the sentencing judge said, Child 1 was extremely vulnerable and readily accessible for his perverted actions. Victim impact statements by the mothers of four of the little girls described the emotional and behavioural problems they had experienced.
- Viewed in isolation, what the respondent did to each child might be regarded as towards the lower end of the spectrum of this type of offending. But the number of children involved, their tender ages, and the fact that Child l was under his care were, as the sentencing judge observed, serious aggravating features, particularly in light of his criminal history.
Antecedents, including criminal history
- The respondent was aged 31 years when he committed these offences.
- He had a disturbing criminal history of sexual and other offending from the age of 19. His sexual offending had occurred over five distinct periods: January to April 1997, August 1999, March 2001, February 2004 and February to March 2007. He had been imprisoned on a number of occasions. On 13 July 2007 he had been convicted in the Cairns District Court of five counts of making child exploitation material (between February and March 2007) and of stalking (in March 2007) and sentenced to 18 months imprisonment. He was not granted parole; he served the full 18 months, without completing the High Intensity Sex Offenders Program, and was released into the community without supervision in 2008. He was, however, under a reporting obligation under the Child Protection (Offender Reporting) Act 2004 (Qld), arising out of his earlier conviction (on 13 July 2004) of indecent treatment of a child under 12. He was in breach of that obligation when he committed the instant offences, and on 30 October 2009 a Magistrates Court sentenced him to six months imprisonment for those breaches.
- He had a turbulent and abusive upbringing, and described himself as the victim of sexual abuse at the hands of family friends. He attended school to year 11 and left home at the age of 15. Then he had an itinerant lifestyle, with various jobs including as a trolley boy at a supermarket for two years, as a labourer on banana farms for about six months, and as a cook for about 12 months. From about 2002 he was in and out of custody in relation to sexual offences against children, and so had no employment history in that period.
- He was taken into custody on 30 October 2009, where he remained on remand at the time of the sentencing.
- The respondent was a recidivist offender, lacking insight into his conduct. He told police he found girls attractive from the age of seven upwards. He said he had to keep busy to stop himself thinking “stinking thoughts” of molesting children, having sex with minors and “shit like that”. He said he was attracted by the looks of young girls and was curious about trying to teach them about maturity – that they did not respect themselves and that by touching them he was trying to prevent them displaying their sexuality and to make them aware of what was and what was not appropriate.
- The sentencing judge commented –
“Your interview also contains some of the classical rationales that I've heard on many occasions of the true predatory paedophile – on the one hand purporting to recognise that the conduct is wrong, on the other hand talking of teaching the children and protecting them from themselves and suggesting, at least in one case, sexual intent by a child.
You are undoubtedly a danger to young girls with whom you are able to have contact in the community, and your long history of similar offending does not give me great hope that your attitudes can be changed.”
- The need to protect the community, especially vulnerable young children, and deterrence, both personal and general, called for the imposition of a substantial period of actual imprisonment.
Co-operation and admissions
- As I have already noted, Child 2 complained to her mother about the respondent’s conduct, and that led to police involvement. Child 1 made no disclosures, and the offences involving her, including that of maintaining which attracted the highest penalty, could not have been laid had it not been for admissions made by the respondent. He made other admissions, and in all 12 of the 16 counts depended solely or substantially on his admissions.
- In AB v The Queen[7] Hayne J said –
“An offender who confesses to crime is generally to be treated more leniently than the offender who does not. And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known. Leniency is extended to both offenders for various reasons. By confessing, an offender may exhibit remorse or contrition. An offender who pleads guilty saves the community the cost of a trial. In some kinds of case, particularly offences involving young persons, the offender’s plea of guilty avoids the serious harm that may be done by requiring the victim to describe yet again, and thus relive, their part in the conduct that is to be punished. And the offender who confesses to what was an unknown crime may properly be said to merit special leniency. That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of proof of guilt; such a confession will often be seen as exhibiting remorse and contrition.”
As Keane JA recognised in R v PW[8]voluntary confessions may be an indicator of substantial prospects of rehabilitation and for that reason, too, warrant special leniency.
- In the present case the sentencing judge remarked –
“Your cooperation in making admissions indicating, and entering an early plea of guilty to all charges are important mitigating factors, especially in cases of this type because it obviates the need for young children to be further traumatised by the criminal justice process. Having said that, protection of young girls from you is the primary object of the sentencing exercise in this case.”
- In my view, the force of the respondent’s cooperation as a mitigating factor was lessened by his demonstrated recidivism and lack of insight into his offending. In his case the road to rehabilitation was likely to be long and fraught.
Comparable sentences
- In R v Levack; ex parte A-G[9] the offender pleaded guilty to sexual offences committed upon young boys charged on two indictments. The first indictment related to offences committed upon one complainant aged 10 or 11 over a period of two years: one count of maintaining a sexual relationship with a child under 16, one count of procuring a child to commit an indecent act and three counts of indecent dealing. The second indictment related to offences committed against five boys aged from eight to 14 years: 13 counts of taking a child for immoral purposes, including three with circumstances of aggravation, four counts of indecent treatment with circumstances of aggravation, 18 counts of indecent treatment and one count of assault occasioning bodily harm. The offences did not involve sodomy or attempted sodomy.
- The offender was aged 50 and had a worrying criminal history including sexual offending against children. The sentencing judge described him as a “committed paedophile”, saying that the offences were “a serious example of continued predatory sexual abuse on vulnerable youths which will have some lasting effect on them.” His Honour noted how abhorrent the offences were and that they required a deterrent sentence.
- Levack was given a head sentence of eight years imprisonment with a recommendation that he be considered for parole after three years, followed by a further 10 years reporting after release. The Court of Appeal said that the appropriate range was eight to 10 years imprisonment, and declined to increase the sentence.
- At the time of Levack’s offending, the maximum penalty for maintaining was not life imprisonment. Unlike the present respondent, he was not convicted of rape, the definition of rape having since been amended to include digital penetration (which was the basis of the rape offences in the present case). Further, Levack’s case was an Attorney’s appeal against sentence, decided at a time when the prevailing view was that on an Attorney’s appeal this Court should sentence at the lower end of the appropriate range. That view has since been held to have been erroneous.[10]
- In R v Dillon[11] the offender pleaded guilty to an ex officio indictment charging four offences of maintaining a sexual relationship with a child under 12 and an isolated offence of indecent dealing. The four victims were aged between four and eight years old and each relationship was maintained for about 12 to 18 months. The conduct involved fondling, masturbation of the children, procuring them to masturbate the offender and requests for oral sex, which the children declined.
- Dillon was a 54 to 57 year bus driver when he committed the offences. Like the present respondent, he was a paedophile although he had only one previous conviction for indecently dealing with a boy and there was no rape charged.
- At the relevant time the maximum penalty for maintaining was 14 years imprisonment.[12] He was given a head sentence of eight years imprisonment, with a serious violent offence declaration and a requirement that he report for 20 years after his release. On appeal, the head sentence was reduced to six years imprisonment, without a serious violent offence declaration, but with a 20 year reporting requirement upon release.
- The period of offending in the present case was considerably shorter than in Levack and Dillon. Senior counsel for the appellant submitted that the short period of offending was really a matter of aggravation, because it demonstrated how quickly the respondent was able to molest a number of young children with whom he came into contact deliberately or fortuitously. It is certainly very concerning that the respondent committed these offences against six children over only four months, but nevertheless the protracted nature of the offending in the other two cases was properly taken into account as aggravating the offending, and it is a valid ground for distinguishing between them and the present case.
- In R v Byrnes; ex parte A-G (Qld)[13] the offender was a 58 to 59 year old school teacher who pleaded guilty to offences committed upon 13 girls in his grade 4 class over a 23 month period. The offences were one count of maintaining an unlawful sexual relationship, 10 counts of rape, and 33 counts of indecent treatment of a child under 16 with the circumstance of aggravation that the complainant was under 12 years of age. The offending conduct consisted of touching under and outside the girls’ clothing, kissing and digital penetration.
- Byrnes participated in interviews with police in relation to the offences. He initially denied allegations made by some children but admitted offending conduct which had not been the subject of allegations by a complainant. Six of the 10 counts of rape were based solely on his admissions.
- He was sentenced to concurrent terms of imprisonment – 10 years for each of the maintaining and rape offences and seven years for each of the indecent treatment offences. The head sentence of 10 years necessarily carried with it a declaration of the commission of serious violent offences with the consequence that he would have to serve 80 per cent of it before becoming eligible for parole.
- The Attorney’s appeal against the leniency of the sentence was dismissed after an extensive review of comparable decisions. Muir JA, with whom the other members of the Court agreed, concluded that when regard was had to mitigating factors taken into account by the primary judge and, in particular, the early guilty pleas and admissions, the sentence should not be disturbed.
Range
- In the circumstances of this case, the applicable range was eight to 10 years. The sentencing judge erred in adopting five to seven years.
Dangerous Prisoners (Sexual Offenders) Act2003
- There was another way in which the sentencing discretion miscarried.
- The sentencing judge said in his sentencing remarks-
“I have no doubt that given your history, consideration will be given during your sentence to an application being made by the Attorney-General under the Dangerous Sexual Offenders legislation.
I suspect that this will depend, to some extent, on the efforts that you make to attend sexual offender treatment programs while in prison and to undertake counselling and other programs to address your perverted sexual attitudes.”
This was a matter which had been discussed during sentencing submissions.
- However, it was contrary to s 9(8) of the Penalties and Sentences Act 1992 (Qld) for his Honour to have regard to the prospect of the respondent’s becoming the subject of an application under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).
Outcome
- Error having been demonstrated, it falls to this Court to resentence the respondent.
- Allowing for his pleas of guilty and the extent of his cooperation, a head sentence within the range of eight to 10 years ought to be imposed for the maintaining offence. That would enliven a discretion whether to make a declaration of the commission of a serious violent offence.[14] In the absence of such a declaration, the respondent would become eligible for parole after serving half of the head sentence.[15] If a serious violent offence declaration were made, he would have to serve 80 per cent of the head sentence before becoming eligible for parole,[16] so increasing the severity of the sentence.
- In R v McDougall and Collas[17] this Court said –
“[21]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[18] in a way which suggests that the protection of the public or adequate punishment[19] 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.[20] 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.”[21]
- Sentencing is an integrated process, and the fixing of a parole eligibility date (whether by force of statute or in the exercise of the sentencing judge’s discretion) is part of the sentence. Of course, whether an offender is actually released on parole, and if so, when, are matters for determination not by the sentencing judge, but by the parole board after the eligibility date has been reached. In all the circumstances of this case, I consider that a head sentence for the maintaining offence of nine years and concurrent sentences of three years for the rapes and 18 months for the other offences without a serious violent offence declaration would meet the over-riding objectives of punishment, deterrence and protection of the community.
- The declaration that the 348 days spent in presentence custody between 30 April 2010 and 12 April 2011 be taken to be time already served under the sentences should stand.
Orders
- The following orders should be made –
- Appeal against sentence allowed.
- Sentence varied by increasing from four years to nine years the term of imprisonment imposed on count 1.
- Sentence varied by setting aside the sentence imposed on count 9 and substituting a sentence of three years imprisonment to be served concurrently with the sentences on the other counts.
- Sentence varied by omitting the order fixing 30 August 2012 as the parole eligibility date.
- Declare that that the 348 days spent in presentence custody between 30 April 2010 and 12 April 2011 be taken to be time already served under the sentences.
ANNEXURE A
COUNT | CHILD | CHARGE | SENTENCE |
1 | Child 1 Aged 8-9 | Maintaining | 4 years imprisonment |
2 & 3 | Child 1 Aged 8-9 | Indecent treatment of child under 16, under 12, under care | 18 months imprisonment |
4, 5 & 6 | Child 1 Aged 8-9 | Rape | 3 years imprisonment |
7 & 8 | Child 2 Aged 8-9 | Indecent treatment of child under 16, under 12, under care | 18 months imprisonment |
9 | Child 3 Aged 7-8 | Rape | 3 years imprisonment cumulative ‘...on the overall sentence of four years...’ |
10 | Child 3 Aged 7-8 | Indecent treatment of child under 16, under 12 | 18 months imprisonment |
11, 12, 13 | Child 4 Aged 7 | Indecent treatment of child under 16, under 12 | 18 months imprisonment |
14 | Child 5 Aged 9 | Rape | 3 years imprisonment |
15 | Child 5 Aged 9 | Indecent treatment of child under 16, under 12 | 18 months imprisonment |
16 | Child 6 Aged 5 | Indecent treatment of child under 16, under 12 | 18 months imprisonment |
Footnotes
[1] Criminal Code 1899 (Qld) (“Criminal Code”), s 669A.
[2] Lacey v Attorney-General of Queensland (2011) 85 ALJR 508; [2011] HCA 10.
[3] Penalties and Sentences Act 1992 (Qld), part 9A.
[4] Criminal Code, s 229B.
[5] Criminal Code, s 349.
[6] Criminal Code, s 210.
[7] (1999) 198 CLR 111, 155; [1999] HCA 46.
[8] [2005] QCA 177.
[9] [1999] QCA 448.
[10] R v AS; ex parte A-G (Qld) [2004] QCA 259, [30]; R v Lacey; ex parte A-G (Qld) [2009] QCA 274, [149] - [153].
[11] [2003] QCA 305.
[12] Criminal Code, s 229B.
[13] [2011] QCA 40.
[14]Penalties and Sentences Act 1992 (Qld), s 161B.
[15] Corrective Services Act 2006 (Qld), s 184.
[16] Corrective Services Act 2006 (Qld), s 182.
[17] [2007] 2 Qd R 87; [2006] QCA 365.
[18] R v DeSalvo (2002) 127 A Crim R 229, 231 [10], 232 [15].
[19] Cf s 9(3)(b) of the Act.
[20] R v Eveleigh [2003] 1 Qd R 398 at 430-431 [111].
[21] R v DeSalvo (2002) 127 A Crim R 229, 230 - 231 [8] - [9], 232 [16]; R v BAW [2005] QCA 334, [27] - [28].