Taufa v R; Siola’a v R

1. [1]

   HOEBEN CJ AT CL: On the conviction appeal I agree with the judgment of Davies J and the orders which his Honour proposes. In relation to the sentence appeal I agree with the judgment of Adamson J and the orders which her Honour proposes.

2. [2]

   DAVIES J: Each of the appellants was charged with six offences as follows:

3. [3]

   In addition, there were two offences on a s 166 certificate as follows:

4. [4]

   The appellants pleaded not guilty to all counts. They stood trial before Judge Arnott SC and a jury from 2 to 23 October 2018. On 15 October 2018 the jury were directed to return a verdict of not guilty on count 5 for both appellants. On 23 October 2018 the jury returned its verdicts. The appellants were found not guilty on counts 1 and 3, but guilty on counts 2, 4 and 6.

5. [5]

   On 5 April 2019 Judge Arnott sentenced the appellants. In relation to Mr Taufa, Judge Arnott sentenced him to an aggregate sentence of five years and nine months’ imprisonment commencing 12 May 2017 and expiring 11 February 2023 with a non-parole period of three years and eight months expiring 11 January 2021.

6. [6]

   The indicative sentences imposed were as follows:

7. [7]

   In respect of the offence of damage property, a s 10A conviction was imposed with no penalty. In respect of the common assault, a sentence of nine months’ imprisonment was imposed.

8. [8]

   In respect of Mr Siola’a, Judge Arnott imposed an aggregate sentence of six years and three months commencing 10 January 2018 and expiring 9 April 2024 with a non-parole period of four years expiring 9 January 2022.

9. [9]

   The indicative sentences were as follows:

10. [10]

    Each of Mr Taufa and Mr Siola’a now appeals against his conviction and sentence on the following identical grounds:

The offending

1. [11]

   Counts 1-4 concerned an incident on 7 May 2017.

2. [12]

   In the afternoon of 7 May 2017, Hoang Dung Nguy (who I shall refer to as Mr Dung in the manner of the sentencing judge) was present at his home at Curtin Street, Cabramatta. With him was his partner Vivian Tran, and two friends Canh Nguyen and My Nhung Tran. Mr Dung was in the lounge room when he saw through a window the appellants at the boundary of the property. They then came up the driveway to the house. He said they started knocking on the outer mesh door to the front door. He opened the front wooden door and saw that they were “strangers” and that they were wrenching the mesh door open. He quickly shut the front door.

3. [13]

   Mr Dung then saw the appellants walk around to the back part of his house. He ran to the back door, shut it, and locked both the wooden and mesh backdoors from the inside. One or both of the appellants kicked open the back wooden kitchen door causing it to come off its hinges and fall to the ground. That constituted the offence on the s 166 certificate of damaging property. When the back door burst open, Vivian and the two other persons fled in a scared state to a bedroom and locked the door.

4. [14]

   The appellants both wore a top with a hood, and each had what Mr Dung described as handguns being greyish black in colour.

5. [15]

   The appellants demanded money from Mr Dung. They pushed him inside a bedroom. He quickly shut the door to lock them out, but when they started banging on the door he opened it, being scared of what might happen if he did not. The appellants demanded money again, and one of them hit him in the face, knocking him down, when he said he did not have any money. That was the matter constituting the assault on the s 166 certificate. Mr Dung lay on the floor waiting until everything seemed quiet. Then he ran outside into the street to get help.

6. [16]

   Before leaving the house, one of the appellants forced his way into the other bedroom where Vivian and the others were hiding. Vivian, who was hiding under the bed, said that she saw the lower half of one of the appellants come into the room and demand money. She heard the noise of the room being searched, and a person rummaging through a number of drawers.

7. [17]

   When she saw the man leave the room she crawled out from under the bed and saw Mr Canh on the bed with his mouth bleeding. Count 3, in respect of which the appellants were found not guilty, was the charge of assaulting Mr Canh occasioning actual bodily harm to him whilst the perpetrator was in the company of another person.

8. [18]

   Before leaving the house the appellants stole Mr Dung’s iPhone and a stereo speaker from the karaoke system. This constituted count 4, being the larceny.

9. [19]

   In relation to that incident the appellants were found guilty of an aggravated break and enter with intent to commit a serious indictable offence, and larceny.

10. [20]

    The second incident took place at the same house on the afternoon of Friday, 12 May 2017. On this occasion, Mr Dung and Vivian were at the house, as well as three other persons named To Van Tran, Thi Cam Hoang Le, and a man called Andy.

11. [21]

    On this occasion the appellants went to the front door and tried unsuccessfully to open the outer metal security door. In the process they damaged it. That constituted one part of the attempted “breaking”. They then walked around the side of the house to the backdoor. Mr Dung and Vivian saw the appellants walking towards the backdoor, and quickly shut it. Vivian called Triple-0.

12. [22]

    At the time the appellants walked around to the back of the house Mr Tran was outside using his mobile phone. Mr Tran was not aware of the presence of the appellants until Mr Taufa pulled him up by the collar, and Mr Siola’a pointed what Mr Tran believed was a gun at his head. When he stood up, Mr Siola’a tucked the gun under his belt and asked Mr Tran, “Where did you come from?” or “What did you come here for?”. Mr Taufa then took hold of Tran’s hand and ordered him to knock on the door and open the door. Those inside the house told Mr Tran in Vietnamese to keep knocking on the door and that they had called the police. Mr Taufa picked up a saw and threatened to cut Mr Tran with it if he did not knock on the door and if those inside did not open the door. Mr Tran knocked on the door a number of times.

13. [23]

    Mr Siola’a went around to the other side of the house and pointed the gun at Mr Dung through a window and told him to give him money.

14. [24]

    As the police arrived, Mr Siola’a ran into the backyard towards the back fence. Mr Dung saw what appeared to him to be Mr Siola’a throwing a gun away towards the back of the garden. When that area of the backyard was subsequently searched by the police, an imitation pistol was found on a mattress behind a shed.

15. [25]

    Mr Siola’a was arrested on that day and Mr Taufa was arrested at a later time.

16. [26]

    The appellants admitted to being at the house on 12 May but not on 7 May. Mr Siola’a told the police that he had been buying “ice” for almost six months from a man in the house whose description matched Mr Dung. He said he went to speak to him about the fact that he, Mr Dung, had been ripping people off selling inferior quality drugs. He also went to retrieve his property, being a speaker worth $600 and an iPad that he had left with Mr Dung a few months earlier in exchange for being given drugs.

17. [27]

    In his Remarks on Sentence, the sentencing judge rejected Mr Dung’s evidence that the appellants were strangers to him, and he found that both appellants had been buying methamphetamine from Mr Dung prior to the incidents concerned. The sentencing judge found that Mr Siola’a went to the house to confront Mr Dung to complain that he had been selling inferior quality drugs, and that he went there to steal what money and drugs he could get. The sentencing judge similarly found that Mr Taufa went to the house to steal what money and drugs he could get from Mr Dung.

Legislative provisions

1. [28]

   So that the arguments can be properly understood, it is necessary to set out various legislative provisions.

2. [29]

   The offence is found in s 113 of the Crimes Act 1900 (NSW):

3. [30]

   What amounts to “circumstances of aggravation” and “circumstances of special aggravation” is found in s 105A of the Crimes Act:

4. [31]

   Section 115A of the Crimes Act provides for alternative verdicts in relation (inter alia) to s 113 offences:

5. [32]

   Section 7(2) of the Criminal Appeal Act 1912 (NSW) provides:

6. [33]

   The circumstances of special aggravation referred to in count 6 were,

7. [34]

   Relevant definitions for count 6 are contained in s 4 of the Crimes Act,

8. [35]

   Section 4D of the Firearms Act 1996 (NSW) contains provisions relating to imitation firearms:

9. [36]

   The Criminal Procedure Act 1986 (NSW) relevantly provides:

Conviction appeal

1. [37]

   The indictment contained count 6 as follows:

2. [38]

   Each appellant was separately represented and made his own written submissions in relation to all grounds of appeal. Nevertheless, the substance of the submissions did not differ as between the appellants. At the hearing of the appeal, Mr Johnston SC for Mr Taufa addressed on behalf of both appellants.

3. [39]

   The appellants submitted that, although the indictment expressly alleged a “circumstance of special aggravation” being that the alleged offenders were armed with a dangerous weapon, the indictment failed to allege an essential element of the “specially aggravated offence” being that the appellant had committed an offence contrary to sub-s (2). The appellants submitted that, to establish the “specially aggravated offence” contrary to s 113(3), the Crown must prove the elements of the “basic” offence, contrary to s 113(1), but additionally two further elements being:

4. [40]

   The appellants submitted that the requirements of s 11 of the Criminal Procedure Act, which provides that the description of any offence in the words of an Act or statutory rule or other document creating the offence, or in other similar words, is sufficient at law, could have been met if the Crown had alleged the appellants had committed the basic offence in any “circumstance of aggravation” under s 105A(1)(a)-(f) but failed to do so.

5. [41]

   Mr Taufa submitted (Mr Siola’a said nothing of this) that a counter-argument might be that a particular “circumstance of aggravation” under sub-s (2) is automatically implied when alleging a dangerous weapon by reason of s 105A(a), but submitted that that interpretation was inconsistent with the express requirement under subs-s (3) to allege that an offence is committed under sub-s (2). Mr Taufa submitted, in this context, that in count 2 on the indictment, it was alleged that the “circumstance of aggravation” was in company.

6. [42]

   The appellants submitted that because the indictment failed to allege that the appellant had committed any offence contrary to sub-s (2), it was defective. That was an essential legal defect in the trial and the conviction should be quashed in relation to the specially aggravated offence. The appellants accepted that the defect was not such as to render the proceedings a nullity. However, the defect could not be cured and was sufficient to require that the conviction be quashed.

7. [43]

   The appellants submitted that as a result of that defect, the trial judge provided incorrect directions to the jury in relation to proof of the specially aggravated offence. The trial judge directed the jury that they needed to be satisfied beyond reasonable doubt in relation to five elements being:

8. [44]

   The appellants submitted that at no time was the jury directed as to which “circumstance of aggravation” was relied upon in s 105A(1)(a)-(f), nor were any directions given which sought to relate the directions of law to the factual issues in the trial. The appellants submitted that the misdirection constituted a fundamental error of law.

9. [45]

   The appellants submitted that the appropriate remedy was to substitute the jury’s verdict with a verdict for the basic offence contrary to s 113(1). Such a course was available under s 7(2) of the Criminal Appeal Act 1912 (NSW), and was the approach adopted in MM v R [2018] NSWCCA 158, and in Tonari v R [2013] NSWCCA 232 at [213]-[220].

10. [46]

    The appellants accepted that no redirection was sought in relation to the directions given by his Honour, nor was the issue of the indictment raised before the trial judge. The appellants accept that r 4 of the Criminal Appeal Rules applies, but they submitted that a failure to quash the conviction for the reasons given would constitute a miscarriage of justice.

11. [47]

    The Crown submitted that there were four elements of count 6 as follows:

12. [48]

    The Crown submitted that the term “offensive weapon” is expressly defined to include a "dangerous weapon". Proof of the fourth element pleaded in the indictment, namely, that the appellants were armed with a dangerous weapon, necessarily constituted proof of the third element, namely, that the appellants were armed with an offensive weapon. In that way, the third element was necessarily implied in the pleading of the fourth element.

13. [49]

    The Crown submitted, alternatively, that even if the indictment was defective, the defect was not such as to invalidate the jury's verdict. The indictment disclosed an offence known to the law, being an offence of specially aggravated break and enter contrary to s 113(3) of the Crimes Act. Since the appellants conceded, correctly in the Crown’s submission, that the defect was not such as to render the proceedings a nullity, the District Court's jurisdiction was properly invoked.

14. [50]

    In relation to the directions given by the trial judge, the Crown submitted that the trial judge instructed the jury that they needed to be satisfied beyond reasonable doubt that the appellants were armed with a dangerous weapon. That direction was not erroneous. The jury’s satisfaction beyond reasonable doubt that the appellants were armed with a dangerous weapon would necessarily satisfy the third element of the offence charged.

15. [51]

    The Crown submitted alternatively that, if the directions were technically incomplete, the present case was one where the proviso should be readily applied. That is because there could be no substantial miscarriage of justice, because the jury’s satisfaction beyond reasonable doubt of element (iv) necessarily meant that the jury must have been satisfied beyond reasonable doubt of element (iii).

16. [52]

    The Crown submitted that since no objection was taken to the indictment at the trial, or to the directions given, r 4 applies. The Crown submitted that the appellants had not established that a miscarriage of justice had occurred.

Determination

1. [53]

   No issue regarding the form of the indictment was raised at the trial. All parties proceeded on the basis that if the jury was satisfied that the appellants were armed with a dangerous weapon the offence against s 113(3) would be proved. In the same way no different or additional directions were sought from the trial judge concerning the elements of the offence in count 6 (or, for that matter, in count 1). Since no reference was made to the gun being an offensive weapon, it may be accepted that no-one, including the trial judge, adverted to the issue now raised on the appeal. Rule 4 applies to the issue in ground 2 but not to the issue raised by ground 1.

2. [54]

   The concession by the appellants that any defect in the form of the indictment would not amount to a nullity to deprive the District Court of jurisdiction was properly made: Tonari at [84]-[96]; MM v R [2018] NSWCCA 158 at [8]. In Doja v R [2009] NSWCCA 303 Spigelman CJ said at [27]:

3. [55]

   The issue is, therefore, whether there was a defect in the pleading of the indictment and, if so, whether a there was a miscarriage of justice which would result in a new trial or whether there should be substituted a conviction for an offence under s 113(1).

4. [56]

   The issue raised by these grounds has been considered in a number of decisions involving indictments alleging offences against s 112 of the Crimes Act.

5. [57]

   The first such case was R v O’Donoghue [2005] NSWCCA 62; (2005) 151 A Crim R 597. The position in O’Donoghue is well summarised by McClellan CJ at CL in Firbank v R [2011] NSWCCA 171 as follows:

6. [58]

   In Firbank, count 4 on the indictment was as follows:

7. [59]

   The appellant had broken into the victim’s home carrying a knife. He said he was going to kill the victim, and he moved towards him. The appellant and the victim struggled and in the course of the struggle the victim was stabbed.

8. [60]

   The appellant submitted that, because wounding was an essential fact to be proved in relation to the pleaded serious indictable offence, it could not also be relied upon as a circumstance of special aggravation. The pleaded count identified wounding as a circumstance of special aggravation.

9. [61]

   Justice McClellan rejected the submission and held at [53] that the decision in O’Donoghue was directly on point and should be followed.

10. [62]

    Similarly, in Regina v Bennett [2014] NSWCCA 197 Hall J said at [55](ii):

11. [63]

    The elements of the attempted offence contrary to s 113(3) of the Crimes Act are:

12. [64]

    The relevant element for the offence under s 113(2) is the circumstance of aggravation that the appellant was armed with an offensive weapon. Because an offensive weapon is defined (inter alia) as a dangerous weapon, the relevant element of the offence under s 113(2) can also be relied upon as the matter of aggravation. The matter is no different from the position in O’Donoghue and Firbank. As Hall J said in Bennett, the same act can be relied upon to prove both an element of the offence charged and a matter of aggravation.

13. [65]

    In Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128; (2007) 165 IR 7, Basten JA (with whom Mason P agreed) said at [130]:

14. [66]

    In Tonari, Johnson J said at [81] that whether the particular matter may be necessarily implied will involve consideration of the conduct of the trial itself. What is apparent in the present case is that the trial was conducted on the basis that the offence would be proved if the elements identified by the trial judge were found to be proved beyond reasonable doubt. In those circumstances where proof of the fourth element necessarily constituted proof of the third element (because an offensive weapon is a dangerous weapon) the third element was necessarily implied in the pleading of the fourth element: s 16(1)(b) of the Criminal Procedure Act.

15. [67]

    The trial judge gave the following directions in relation to Count 6:

16. [68]

    No objection was taken to those directions. They were entirely correct in respect of the fourth element identified at [63] above. On those directions, the jury convicted the appellants on that count. In such circumstances, even if it were not the case that the third element was necessarily implied in the pleading of the fourth element, this is a clear example of a case where the defect in the indictment was cured by the jury’s verdict: Heymann v The Queen (1873) LR 8 QB 102 at 105; Doja at [37]-[45], [107]-[119] and [181]. In R v Morris (Court of Criminal Appeal (NSW), 25 November 1996, unreported), Gleeson CJ said (at 12),

17. [69]

    By their verdict, the jury must have been satisfied that the accused was armed with a dangerous weapon. If the matter of the definition of “offensive weapon” in s 4 had been adverted to, the jury would have been told that, if they found the gun was a dangerous weapon, they must find that it was an offensive weapon. The failure, therefore, to mention the element relating to the offensive weapon, including that it was that circumstance of aggravation that was relied on, means that no miscarriage of justice occurred. In that way, any defect was cured by the verdict.

18. [70]

    It may be accepted in the ordinary course that if a direction is not given on an element of the count charged, a miscarriage of justice is likely to have occurred. However, in the particular situation where being armed with a dangerous weapon constitutes being armed with an offensive weapon (the missing element), no miscarriage of justice has occurred. The jury must have been satisfied that the appellants were armed with an offensive weapon.

19. [71]

    No reliance can be placed on that fact that the circumstances of aggravation for count 2 was being in company, to suggest that there might be doubt about what the “circumstances of aggravation” were, as the appellants submitted. That circumstance of aggravation was not necessary for the offence under s 113(2) being made out in the circumstances of a dangerous weapon being identified as the circumstances of special aggravation. Further, count 2 was charged in relation to the earlier occasion.

20. [72]

    Rule 4 applies with the result that leave should be refused to raise ground 2.

21. [73]

    I would reject ground 1.

22. [74]

    I propose the following orders:

    1. (1)

       As to the conviction appeal,

23. [75]

    I agree with Adamson J in relation to the appeal against sentence.

24. [76]

    ADAMSON J: I agree with the reasons given by Davies J that neither ground 1 nor ground 2 has been made out. As to the remaining grounds, which seek to challenge the sentence, my reasons for finding that none has been made out are as follows. Ground 3 flows from the result of the conviction appeal and therefore need not be separately addressed. The remaining grounds are:

25. [77]

    Mr Johnston SC, who appeared on behalf of Mr Taufa, submitted that his Honour was in error in finding that the appellants were in possession of guns which aggravated the offence in count 2. Mr Averre, who appeared on behalf of Mr Siola’a, provided separate written submissions but adopted the oral submissions put by Mr Johnston. Accordingly, it is only necessary to address the submissions put by the appellants collectively.

26. [78]

    Mr Johnston put the challenge to the sentence on two bases. First, he contended that his Honour breached the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni) by taking into account an aggravating circumstance that was not alleged in count 2 (ground 5). Secondly, he argued that it was not open to his Honour to be satisfied that the appellants were in possession of guns for the commission of the count 2 offence because the evidence, at its highest, did not permit his Honour to be satisfied of that matter beyond reasonable doubt and because such a finding was not open in light of the way the Crown had put its case at trial (ground 4). It is convenient to address these matters in turn.

27. [79]

    The offence in count 2 was aggravated break and enter against s 112(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation alleged was that the appellants were in company. Count 2 was an alternative to count 1, which alleged specially aggravated break and enter contrary to s 112(3) of the Crimes Act on the basis that the appellants were in possession of a dangerous weapon. It would have been open to the Crown to charge the appellants with an offence under s 112(2) of the Crimes Act with two circumstances of aggravation: that they were in company and that they were in possession of an offensive weapon. However, the Crown did not take this course and there was no forensic benefit in its doing so since the aggravated offence was constituted by a single circumstance of aggravation: that the accused were in company. It followed that once the jury had returned its verdict of not guilty for count 1, it was not required to be satisfied that the appellants were in possession of any weapons at all in their deliberations with respect to count 2.

28. [80]

    Whether his Honour was entitled, consistently with the principle in De Simoni to take into account his finding that the appellants were carrying guns when they committed the aggravated break and enter on 7 May 2017 depends on the ambit of the principle. A sentencing judge is entitled to consider all relevant conduct, including aggravating factors, but cannot take into account any circumstances of aggravation which would have warranted a conviction for a more serious offence. An offence for which the maximum penalty is higher than the offence for which the offender is being sentenced is a more serious offence for the purposes of this principle.

29. [81]

    This Court held in R v Li (Court of Criminal Appeal (NSW), 9 July 1997, unrep) that a sentencing judge was entitled to take into account, in sentencing for an offence under s 112(3) of the Crimes Act, circumstances of aggravation that were not alleged in the indictment, including that the accused was in company and deprived the victim of his liberty. These circumstances of aggravation grounded a less serious offence, namely one against s 112(2), and therefore did not infringe the De Simoni principle. This reasoning was followed in Marshall v R [2007] NSWCCA 24 at [10] (which was cited with approval in MM v R [2016] NSWCCA 235 at [118] (Johnson J, Bathurst CJ and R S Hulme AJ agreeing). In Marshall v R the Court (Howie J, McClellan CJ at CL and Simpson J agreeing) said:

30. [82]

    It follows from these authorities that the appellants’ first argument must be rejected since the sentencing judge was not precluded from taking into account a circumstance of aggravation that, while not alleged in the indictment, would not have converted the offence into a more serious one.

31. [83]

    The second argument requires a consideration of the findings made by the sentencing judge, the evidence at the trial and the way the Crown put its case. This approach is consistent with what this Court (Davies J, Leeming JA and Hidden AJ agreeing) said in TH v R [2019] NSWCCA 184 at [26] that, in determining whether a finding on a contested factual issue is consistent with the jury’s verdict, “it is necessary to consider the addresses made by the Crown and what the trial judge said in his summing-up”.

32. [84]

    His Honour said, when making findings of fact regarding count 2:

33. [85]

    When considering the objective seriousness of count 2, his Honour said:

34. [86]

    The evidence at the trial relating to the use of a gun on 7 May 2017 was limited. Unlike for the subsequent offence on 12 May 2017, no weapon was recovered for the 7 May 2017 offence.

35. [87]

    Hoang Dung Nguy’s evidence in chief was, relevantly, as follows:

36. [88]

    Mr Nguy was not cross-examined to the effect that the appellants were not carrying guns as the appellants’ case at trial was that they were not there on 7 May 2017.

37. [89]

    Mustapha Daher, another Crown witness, said that, at about 6 or 7pm on 7 May 2017 the following happened:

38. [90]

    In the Crown’s final address, the Crown emphasised the process of coincidence reasoning, relevantly as follows:

39. [91]

    The Crown addressed as follows on the circumstances of aggravation with respect to count 1:

40. [92]

    In the final address on behalf of Mr Taufa, Mr Smith referred to what needed to be proved by the Crown to establish that the gun was a dangerous weapon. He said:

41. [93]

    In the summing up his Honour gave the jury a document which set out the elements of the offences charged. His Honour said at SU, page 31:

42. [94]

    His Honour continued:

43. [95]

    Later in the summing up, his Honour gave the jury tendency and coincidence directions by reference to the alleged similarity in the conduct on 7 and 12 May 2017. His Honour said in this context, at SU 64:

44. [96]

    It is plain from the jury’s verdict of not guilty with respect to count 1, that the jury was not satisfied beyond reasonable doubt that the offenders had an imitation firearm with them on 7 May 2017. However, the evidence at the trial was that the offenders had guns. While the trial judge was prevented, when sentencing, from finding that the offenders had imitation guns, his Honour was not prevented from finding that they had guns at all. However, the only guns which did not amount to dangerous weapons (which would have led to a conviction on count 1) were children’s toy guns. Thus, his Honour, who accepted that the offenders were carrying what appeared to be guns, found that they were carrying children’s toy guns.

45. [97]

    His Honour’s approach is consistent with the approach endorsed in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 where the High Court at [14] (Gleeson CJ, Gummow and Hayne JJ); and [169] (Callinan J) approved what was said by this Court in R v Isaacs (1997) 41 NSWLR 374 at 377-378 about fact-finding following a verdict:

46. [98]

    It seems to me that what has occurred here is that the judge has been constrained by the verdict in respect of count 1 not to find that the appellants were carrying an imitation firearm. However, his Honour considered, on the basis of the evidence at trial, that the appellants were carrying something which looked to Mr Nguy like a gun. The only thing that looked like a gun which was consistent with the jury’s verdict would be a children’s toy gun. The De Simoni principle does not require a sentencing judge to disregard evidence at a trial. Its effect is to prevent the sentencing judge finding facts for a more serious offence of which the offender has not been convicted. While there may seem to be some artifice associated with his Honour’s finding that they were carrying toy guns, this finding is the consequence of the principles set out above. In effect, his Honour sentenced on a view of the facts which was most favourable to the offenders, but which did not disregard the evidence which was given. Thus, his Honour was not obliged by the verdict returned for count 1 to find that the appellants were not carrying anything that looked like a gun.

47. [99]

    In these circumstances, it was open to his Honour to find beyond reasonable doubt that the appellants were carrying something that looked like a gun but his Honour was constrained by the principles set out above to find that what they were carrying was a children’s toy gun. I am not satisfied that grounds 4 or 5 have been made out.

Proposed orders

1. [100]

   The orders which I propose with respect to the applications for leave to appeal against sentence are, in each matter:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.