When sentencing for persistent sexual abuse of a child under s 66EA, the sentencing judge is entitled to determine which of the foundational offences were established beyond reasonable doubt, rather than being limited to the minimum three offences required for conviction. The proviso may be applied where counts affected by latent duplicity or insufficient evidence do not impeach the complainant's credibility and the jury would inevitably have convicted on properly directed counts. Rule 4 of the Criminal Appeal Rules does not apply to grounds of appeal based on latent duplicity.
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