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R v Baker

R v Baker

Case [2011] QCA 104 20 May 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Baker [2011] QCA 104

PARTIES:

R
v
BAKER, Travis John
(applicant/appellant)

FILE NO/S:

CA No 9 of 2011
SC No 1446 of 2009
SC No 822 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2011

JUDGES:

Margaret McMurdo P, Atkinson and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for an extension of time in which to file an application for leave to appeal against sentence granted and extended to 20 January 2011.

2.   Application for leave to appeal against sentence granted.

3.   Appeal against sentence allowed and the following sentence substituted:

(a)   The appellant is required to serve the 14 months outstanding of the suspended sentence originally imposed on 10 July 2007;

(b)   On the count of trafficking in the dangerous drug 3,4-Methylenedioxymethamphetamine the appellant is sentenced to three years imprisonment;

(c)    On the count of possessing a dangerous drug, the appellant is sentenced to 12 months imprisonment;

(d)   On the count of possessing a thing used in connection with trafficking in a dangerous drug, the appellant is sentenced to three months imprisonment;

(e)   All sentences are to be served concurrently;

(f)     The appellant’s parole release date is set at 14 October 2011.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug, one count of possessing the drug and one count of possessing things used in connection with trafficking – where the offences were committed in breach of a suspended sentence – where the applicant was ordered to serve the 14 months outstanding of the suspended sentence cumulatively upon the sentence of two years and six months imprisonment imposed for the trafficking offence – where the total sentence was therefore three years and eight months imprisonment – where the applicant was a low-level street dealer and had no previous convictions for drug offences – whether the combination of the cumulative sentences imposed offended the totality principle – whether the parole eligibility date was set considering the whole of the sentence imposed and the factors in mitigation – whether the sentence imposed was manifestly excessive

Criminal Code 1899 (Qld), s 671
Penalties and Sentences Act 1992 (Qld), s 9(2), s 147, s 148, s 151A, s 155, s 156A, s 160, s 160A(1), s 160B, s 160C, s 160D

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
Puschenjak v Wade[2002] QCA 190, cited
R v Challacombe[2009] QCA 314, considered
R v…

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 Baker

Details

AGLC: R v Baker [2011] QCA 104
Case: [2011] QCA 104
Decision Date: 20 May 2011

CaseChat Overview and Summary

The case of R v Baker involved an appeal against the sentence imposed on the appellant, Baker, who had pleaded guilty to various drug-related offences. Baker was convicted of trafficking in a dangerous drug, possessing the drug, and possessing items used in connection with trafficking. These offences were committed while Baker was in breach of a previously imposed suspended sentence. The court ordered that the 14 months remaining on the suspended sentence be served cumulatively with the two years and six months imprisonment for the trafficking offence, resulting in a total sentence of three years and eight months imprisonment. Baker, a low-level street dealer with no prior convictions for drug offences, appealed the sentence on the grounds that it was excessive and inadequately considered the mitigating factors.

The legal issues in this case centred on whether the cumulative sentencing approach applied by the trial judge breached the totality principle. Additionally, the court had to determine if the parole eligibility date was set appropriately, considering the entire sentence and the mitigating factors. The appeal also challenged whether the sentence was manifestly excessive. The appeal hinged on the proportionality and appropriateness of the sentence given Baker’s low-level involvement in drug trafficking and lack of prior convictions.

The court found that the cumulative sentencing approach, while permissible, in this case resulted in a sentence that was manifestly excessive. The totality principle was not appropriately balanced against the cumulative sentences. The court also noted that the parole eligibility date did not adequately consider the entirety of the sentence and mitigating factors. Consequently, the appeal against the sentence was allowed, and a new sentence was substituted. The new sentence required Baker to serve the remaining 14 months of the suspended sentence concurrently with sentences of three years for trafficking, 12 months for possession, and three months for possessing items used in trafficking. The parole release date was set at 14 October 2011.

Orders

Orders of the court

1. Application for an extension of time in which to file an application for leave to appeal against sentence granted and extended to 20 January 2011.

2. Application for leave to appeal against sentence granted.

3. Appeal against sentence allowed and the following sentence substituted:

(a) The appellant is required to serve the 14 months outstanding of the suspended sentence originally imposed on 10 July 2007;

(b) On the count of trafficking in the dangerous drug 3,4-Methylenedioxymethamphetamine the appellant is sentenced to three years imprisonment;

(d) On the count of possessing a thing used in connection with trafficking in a dangerous drug, the appellant is sentenced to three months imprisonment;

(e) All sentences are to be served concurrently;

(f) The appellant’s parole release date is set at 14 October 2011.

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

Full text does not contain this section.

Citations

AGLC Citation

R v Baker [2011] QCA 104

Most Recent Citation

R v Schmidt [2011] QCA 133

Cases citing this decision · 30 of 30 shown

R v TBD
[2024] QCA 182 Para 7

…not destroy any reasonable expectation of useful life after release from custody.” [51] Postiglione v The Queen (1997) 189 CLR 295, 304. [52][2011] QCA 104, [39]. [53][2010] WASCA 36, [410].…
LPN v Queensland Police Service
[2021] QDC 276 Para 15

…unjust, and not a just and appropriate measure for the total criminality involved, and thereby outside the permissible range. [17] The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].…
BH v Commissioner of Police
[2021] QDC 175 Para 8

…ushing” in its effect on the offender as to call for intervention.[15] [15] Postiglione v The Queen (1997) 189 CLR 295, at 304 and 308; R v Baker [2011] QCA 104 at [39]-[40].…
Bird v Commissioner of Police
[2021] QDC 49 Para 4

…That approach, making the suspended sentence cumulative to the other sentences imposed is contrary to the correct approach outlined in R v Baker [2011] QCA 104 at [32]-[34]. Section 156A did not apply to the appellant’s circumstances so that sections 148, 155 -156 applied. With respect, the above quoted remark di…
R v Degn
[2021] QCA 33 Para 11

…“crushing” in its effect on the offender as to call for intervention.[3] [3] Postiglione v The Queen (1997) 189 CLR 295 at 304 and 308; R v Baker [2011] QCA 104 at [39]-[40].…
R v Fisher
[2021] QCA 28 Para 9

…context, reference was made to a number of cases: R v Mikula [2015] QCA 102; R v Casagrande [2009] QCA 1; R v Engellenner [2012] QCA 6 and R v Baker [2011] QCA 104. None of those cases was, in my view, comparable. Firstly, all involved young people in their teenage years or early 20s who had pleaded guilty to of…
Penhaligon v Queensland Police Service
[2020] QDC 289 Para 26

…d then assess the cumulative effect to gauge whether the overall sentence is disproportionate to the offender’s criminality. [15] The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54]. [16] R v Margaritis; Ex parte…
R v Mizner
[2019] QCA 198 Para 3

…d to “explicitly consider the aggregate sentence in order to determine whether the total sentence was just and appropriate”.[122] [122] R v Baker [2011] QCA 104 at [47].…
BHN v Queensland Police Service
[2019] QDC 129 Para 1

…sited when drawn to his Honour’s attention immediately after pronouncement, but such are the rigors of that very busy court [9] The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].…
Norwood v Queensland Police Service
[2018] QDC 170 Para 1

…opriate bespeaks an error in the exercise of the sentencing discretion.[7] [6] Penalties and Sentences Act 1992 (Qld) s 155. [7]Cf. The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].…
R v Hill
[2017] QCA 177 Para 1

…that a sentence should not be “crushing” were discussed by Atkinson J (with whom McMurdo P and Peter Lyons J agreed) in R v Baker [2011] QCA 104 at [35] – [47]. More recently the totality principle was discussed in R v Kendrick [2015] QCA 27; 249 A Crim R 176 at 185 [31] – 188 [41].…
Addo v Senior Constable Jacovos
[2016] QDC 271 Para 1

…determine whether a total sentence is just and appropriate bespeaks an error in the exercise of the sentencing discretion.[36] [36] The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].…
Chevathen v Queensland Police Service
[2016] QDC 270 Para 47

…[18] The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].…
R v Borowicz
[2016] QCA 211 Para 2

…iod of time to fund an addiction, and had shown promising signs of rehabilitation.[19] Particular emphasis was placed on Mikula in this regard. [15][2011] QCA 104. [16][2013] QCA 5. [17][2015] QCA 102. [18][2015] QCA 264. [19]Outline for the Applicant para 11.2.…
R v Brown; Ex parte
[2016] QCA 156 Para 10

…6] and whether the sentences reflected the totality of the respondent’s criminality.[37] [34] Mill v The Queen (1988) 166 CLR 59, 63; R v Baker [2011] QCA 104, [35]–[47]. [35] R v MAK (2006) 167 A Crim R 159, 164 [16]. [36] R v Margaritis; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 317, 323–325 [31]–[39]…
Brase v Queensland Police Service
[2016] QDC 24

…s 222, 223(1), 158A and 158B Penalties and Sentences Act 1992 (Qld), ss 160F Cases House v The King (1936) 55 CLR 499 The Queen v Baker [2011] QCA 104 Mill v the Queen [1988] 166 CLR 59…
R v Blumke
[2015] QCA 264 Para 11

…he respondent’s contention is borne out by an analysis of the decisions. [1][2007] QCA 418. [2][2009] QCA 1. [3][2013] QCA 8. [4][2012] QCA 6. [5][2011] QCA 104.…
Green v Queensland police Service
[2015] QDC 341 Para 5

…sentence in order to determine whether the total sentence was just and appropriate bespeaks an error in the exercise of the sentencing discretion. [9][2011] QCA 104 at [47].…
George v Queensland Police Service
[2015] QDC 163

…) 154 CLR 606 Mbuzi v Torcetti [2008] QCA 231 Mill v R (1988) 83 ALR 1 Pearce v R (1998) 194 CLR 610 R v Armstrong [2005] QCA 116 R v Baker [2011] QCA 104 R v Bell [1982] Qd R 216 R v Edwards [2013] QCA 216 R v Kendrick [2015] QCA 027 R v Molina (1984) 13 A Crim R 76 R v Woods [2004] QCA 204 Rowe v Kemper [2008]…
Young v Wilson
[2015] TASSC 16 Para 7

…the suspended sentence. The question of parole is not a "separate and independent exercise of discretion, arising once a decision is made": R v Baker [2011] QCA 104, applying R v Norden [2009] 2 Qd R 455 at [13]-[15]. Whilst the statutory schemes regarding suspended sentences and breach proceedings in Tasmania an…
R v Kendrick
[2015] QCA 27 Para 2

…has fallen into error by not properly applying the totality principle. It therefore falls to this Court to re-sentence the applicant. [62] R v Baker [2011] QCA 104 at [47], per Atkinson J, McMurdo P and Peter Lyons J concurring. ( Baker )…
R v Margaritis; Ex parte
[2014] QCA 219 Para 1

…t to gauge whether the overall sentence is disproportionate to the offender’s criminality.[2] [2] Mill v The Queen (1988) 166 CLR 59; R v Baker [2011] QCA 104 at [39], [47].…
McCarthy v Campbell
[2014] QDC 108 Para 1

…In R v Baker [2011] QCA 104 Atkinson J, with whom the President and Peter Lyons J agreed, wrote (at [32]):…
Moss v Queensland Police Service
[2014] QDC 15 Para 1

…Regrettably, in my view, the same cannot be said for the approach he adopted in setting a parole eligibility date. In R v Baker [2011] QCA 104 at [39], the concept of a crushing sentence was explored. Essentially, this aspect of the totality principle requires that the total effective sentence imposed on an offen…
R v Lacey
[2013] QCA 318 Para 1

…helming and crushing” and offended principles of totality: Mill v The Queen (1988) 166 CLR 59, R v Clements (1993) 68 A Crim R 167, and R v Baker [2011] QCA 104.…
R v Kohl
[2012] QCA 344 Para 1

…ut the court commented that three years, as sought by the prosecutor below, was the appropriate sentence for this low level street offending. [29][2011] QCA 104. [30][2009] QCA 107. [31][2009] QCA 314.…
R v McGrane
[2012] QCA 29

…and voluntary guilty plea Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, followed R v Baker [2011] QCA 104, followed R v Bell [2011] QCA 101, considered R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, considered R v DAQ [2008] QCA 75, considered R v Forde [1923] 2 KB 400, followed R v GV [2006] QCA 394,…
Butler v Queensland Police Service
[2012] QDC 46

…225 (2), s 225 (3) House v The King (1936) 55 CLR 499, applied Mill v The Queen (1988) 166 CLR 59, cited R v Baker [2011] QCA 104, applied R v Flynn [2010] QCA 254, applied R v Gillies; ex parte Attorney-General [2000] QCA 503, considered R v Hamilton [2009] QCA 391, applied R v Melano; ex parte Attorney-General…
R v Engellenner
[2012] QCA 6 Para 1

…risonment. A parole release date was set after 12 months to reflect the particular circumstances of that case which are not presently relevant. [2] [2011] QCA 104.…
R v Schmidt
[2011] QCA 133

…[41] R v Baker [2011] QCA 104 [47].…

View all 30 citing cases →

Cases cited in this decision · 17 of 17 shown

R v Forsythe
[2011] QCA 71 Para 1

…then an extension will be granted if a refusal to do so would perpetuate a miscarriage of justice. [3] R v GV [2006] QCA 394 at [3]. [4] R v Forsythe [2011] QCA 71 at [4].…
R v Gray
[2010] QCA 161

…G (Qld) [1995] QCA 570, cited R v Forsythe [2011] QCA 71, cited R v Gander [2005] 2 Qd R 317; [2005] QCA 45, cited R v Gray [2010] QCA 161, cited R v GV [2006] QCA 394, cited R v Nolan [2009] QCA 129, cited R v Norden [2009] 2 Qd R 455; [2009] QCA 42, applied R v SBK [2009] QCA 107, considered R v Tait [1999] 2 Q…
Stubley v The State of Western Australia
[2010] WASCA 36 Para 1

…The Court of Appeal in Western Australia in Stubley v Western Australia [2010] WASCA 36 at [410] described the totality principle as comprising two aspects:…
R v Challacombe
[2009] QCA 314 Para 1

…iate range of imprisonment for an offence of this kind was three to five years. She referred to two cases: R v SBK [2009] QCA 107 and R v Challacombe [2009] QCA 314. Both of those cases concerned higher level and more serious offending so the prosecution submitted that the head sentence for trafficking should be…
R v Nolan
[2009] QCA 129 Para 1

…The totality principle has also been applied recently in this court. In R v Nolan [2009] QCA 129, the appellant was convicted of assault occasioning bodily harm, burglary and unlawful use of a motor vehicle and sentenced to concurrent terms of five years imprisonment for each offence. An 18 month suspended senten…
R v SBK
[2009] QCA 107 Para 1

…osecutor submitted that the appropriate range of imprisonment for an offence of this kind was three to five years. She referred to two cases: R v SBK [2009] QCA 107 and R v Challacombe [2009] QCA 314. Both of those cases concerned higher level and more serious offending so the prosecution submitted that the head…
Sobieralski v Commissioner of Police
[2009] QCA 90 Para 1

…In Sobieralski v Commissioner of Police [2009] QCA 90, the appellant pleaded guilty in the Magistrates Court to a number of offences including common assault, minor drug and motor vehicle offences and public nuisance. He was sentenced to a total of 27 months imprisonment and ordered to pay fines of $1,700 and co…
R v Norden
[2009] QCA 42 Para 1

…judge must have regard to the setting of a parole release date or parole eligibility date. Holmes JA explained the necessary procedure in R v Norden [2009] QCA 42 at [13]-[15] as follows:…
R v GV
[2006] QCA 394 Para 1

…tence.[4] If that application has merit then an extension will be granted if a refusal to do so would perpetuate a miscarriage of justice. [3] R v GV [2006] QCA 394 at [3]. [4] R v Forsythe [2011] QCA 71 at [4].…
R v Gander
[2005] QCA 45 Para 1

…ence and then sentence on the indictment. That is the more usual course: R v Chard; ex parte Attorney-General (Qld) [2004] QCA 372 at [7], R v Gander [2005] QCA 45 at [24]. In that case the sentences may be ordered to be served cumulatively or concurrently. The period of suspended imprisonment which is activated…
R v Chard; ex parte Attorney-General
[2004] QCA 372 Para 1

…or to activate the suspended sentence and then sentence on the indictment. That is the more usual course: R v Chard; ex parte Attorney-General (Qld) [2004] QCA 372 at [7], R v Gander [2005] QCA 45 at [24]. In that case the sentences may be ordered to be served cumulatively or concurrently. The period of suspende…
Puschenjak v Wade
[2002] QCA 190 Para 1

…y in applying and whether it would be in the interests of justice to grant the extension.[2] [2] R v Tait [1999] 2 Qd R 667 at 668; Puschenjak v Wade [2002] QCA 190 at 4.…
AB v The Queen
[1999] HCA 46

…), s 9(2), s 147, s 148, s 151A, s 155, s 156A, s 160, s 160A(1), s 160B, s 160C, s 160D AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited Puschenjak v Wade [2002] QCA 190, cited R v…
R v Tait
[1998] QCA 304

…, cited R v Norden [2009] 2 Qd R 455; [2009] QCA 42, applied R v SBK [2009] QCA 107, considered R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited Sobieralski v Commissioner of Police [2009] QCA 90, cited Stubley v The State of Western Australia [2010] WASCA 36, cited COUNSEL: The applicant/appellant appeared on h…
Postiglione v the Queen
[1997] HCA 26

…[1999] HCA 46, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited Puschenjak v Wade [2002] QCA 190, cited R v Challacombe [2009] QCA 314, considered R v Chard; ex parte Attorney-General (Qld) [2004] QCA 372, cited R v Cutajar; ex part…
R v Cutajar
[1995] QCA 570 Para 1

…In R v Cutajar; ex parte A-G (Qld) [1995] QCA 570 at 8, McPherson JA referred to its being appropriate to take into account, when imposing a cumulative sentence, that the combined effect ought not be such as to make it a “crushing” burden for the offender.…
Mill v The Queen
[1988] HCA 70

…160A(1), s 160B, s 160C, s 160D AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited Puschenjak v Wade [2002] QCA 190, cited R v Challacombe [2009] QCA 314, considered R v Chard; ex part…

Legislation cited in this decision · 3

Penalties and Sentences Act 1992 (Qld)
9(2) 2 mentions (from Para 1)
Criminal Code Act 1899 (Qld)
671(1) 1 mention (from Para 1)
Drugs Misuse Act 1986 (Qld)
1 mention (from Para 1)

CITATION:	R v Baker [2011] QCA 104
PARTIES:	R v BAKER, Travis John (applicant/appellant)
FILE NO/S:	CA No 9 of 2011 SC No 1446 of 2009 SC No 822 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2011
JUDGES:	Margaret McMurdo P, Atkinson and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for an extension of time in which to file an application for leave to appeal against sentence granted and extended to 20 January 2011. 2. Application for leave to appeal against sentence granted. 3. Appeal against sentence allowed and the following sentence substituted: (a) The appellant is required to serve the 14 months outstanding of the suspended sentence originally imposed on 10 July 2007; (b) On the count of trafficking in the dangerous drug 3,4-Methylenedioxymethamphetamine the appellant is sentenced to three years imprisonment; (c) On the count of possessing a dangerous drug, the appellant is sentenced to 12 months imprisonment; (d) On the count of possessing a thing used in connection with trafficking in a dangerous drug, the appellant is sentenced to three months imprisonment; (e) All sentences are to be served concurrently; (f) The appellant’s parole release date is set at 14 October 2011.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug, one count of possessing the drug and one count of possessing things used in connection with trafficking – where the offences were committed in breach of a suspended sentence – where the applicant was ordered to serve the 14 months outstanding of the suspended sentence cumulatively upon the sentence of two years and six months imprisonment imposed for the trafficking offence – where the total sentence was therefore three years and eight months imprisonment – where the applicant was a low-level street dealer and had no previous convictions for drug offences – whether the combination of the cumulative sentences imposed offended the totality principle – whether the parole eligibility date was set considering the whole of the sentence imposed and the factors in mitigation – whether the sentence imposed was manifestly excessive Criminal Code 1899 (Qld), s 671 Penalties and Sentences Act 1992 (Qld), s 9(2), s 147, s 148, s 151A, s 155, s 156A, s 160, s 160A(1), s 160B, s 160C, s 160D AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited Puschenjak v Wade[2002] QCA 190, cited R v Challacombe[2009] QCA 314, considered R v…