Darestani v R

Court of Criminal Appeal (NSW)|2019-08-21|Before: Hoeben CJ, Price J, Lonergan J

Judgment

HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.
PRICE J: On 3 May 2018, the applicant, Makan Darestani, was found guilty by a jury of:

two counts of possess an imitation self-loading pistol without authorisation by licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW) (counts 1 and 2); and
two counts of intimidate with the intention of causing fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (counts 3 and 4).

On 8 June 2018, O'Brien DCJ ("the trial judge") sentenced the applicant to an aggregate term of imprisonment of 2 years 6 months with a non-parole period of 15 months. The aggregate sentence commenced on 27 July 2017 and the applicant was eligible to be released on parole on 26 October 2018. His Honour indicated sentences of 2 years for counts 1 and 2, and sentences of 18 months for counts 3 and 4.
The maximum penalty for an offence contrary to s 7(1) of the Firearms Act is 14 years imprisonment. A standard non-parole period of 4 years is prescribed. The maximum penalty for an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act is 5 years imprisonment.

A summary of the trial

It is unnecessary to recount all of the evidence and addresses of counsel at the applicant's trial. The applicant accepts that his version of what occurred when one of the plastic pistols on the Crown case was pointed at Mr Hooper and Mr Menezes was not accepted by the jury. The applicant's appeal is confined to the issue of whether the two items that he possessed were "produced and identified as a children's toy" and were not included in the meaning of "imitation firearm" in s 4D(3) of the Firearms Act by virtue of s 4D(4) of that Act.

The Crown case at trial

The Crown alleged that the applicant intimidated two employees of a car rental yard at Granville on the evening of 27 July 2017, by pointing an imitation pistol at them, causing them to be fearful and to flee into their office (counts 3 and 4). The police were called. Shortly afterwards, the applicant was apprehended and he was found in possession of two imitation self-loading pistols (counts 1 and 2).

A summary of the evidence in the Crown case

The two complainants, Mr Hooper and Mr Menezes ("the complainants"), worked at a hire car company in Granville. The workplace included a car yard with an office and a fence around the perimeter.
At about 6.45pm on 27 July 2017, the applicant attended the office to hire a car he had booked online. The applicant had with him a suitcase, a bum bag and a shopping bag.
The applicant spoke to the complainants. His application to hire a car was refused because he did not have a current physical driver's licence. An argument occurred and the applicant was asked to leave. He took his bags and left the office but remained within the car yard. Mr Hooper telephoned Granville police station and complained that a customer was refusing to leave the premises.
The complainants then walked out of the office towards the applicant and asked him to leave the car yard.
The applicant reached into his suitcase, pulled out an item and pointed it at the complainants.
Mr Menezes gave evidence that the item looked like a gun. He heard a click and that was when they "freaked out". When asked to describe what the applicant pointed at him, he said that "it was just this black weapon kind of thing, which looked like a gun… and it clicked as well". Mr Menezes said that he was a couple of metres away when this was occurring and the applicant started charging towards them.
Mr Menezes told the jury that he and Mr Hooper ran back to the office. After locking the door, triple-0 was called by Mr Hooper.
The triple-0 call (exhibit 2) was played to the jury which included Mr Hooper telling the operator: "I just called the Police before, and I went outside to ask the gentleman to leave and then he has chased me with a gun".
Mr Hooper gave evidence that he and Mr Menezes walked towards the applicant, asking him to leave. He saw the applicant reach into his bag and he heard Mr Menezes say "[h]e's got a gun". They then ran inside.
In further evidence, Mr Hooper testified that he saw the applicant reach into his bag with his right hand but he did not see the object in his hand.
Senior Constable Sullivan gave evidence that at approximately 7.35pm, she received a broadcast that a male had produced a gun in the vicinity of Parramatta Road and Alfred Street at Granville. She said at that stage, she was in a police marked vehicle with Senior Constable Tang. They attended the scene, looked for the male that had a gun and located him in a phone box on Alfred Street. Senior Constable Sullivan said that the applicant was arrested and searched, during which two imitation pistols were found.
In cross-examination, Senior Constable Sullivan agreed that she asked the applicant "[w]here's the gun, where's the gun?" She agreed that the applicant may have said "[i]t's a toy, it's a toy". She agreed that she started searching the applicant's belongings but did not agree that she found the toy gun in packaging. She told the jury that when she found the plastic pistol she said "[h]ere it is, it's a - it's a toy". When asked to look at the "plastic toy gun", she agreed that "looking at it from here" and "from this distance" and "looking at it now", that it looked like a toy.
One of the plastic pistols was tendered and became exhibit "D".
Senior Constable Tang gave evidence that he did not assist in the search of the applicant's property but stayed with him to ensure his welfare.
Constable Gosper told the jury that at approximately 7.30pm he and Senior Constable Fox received a radio call that a man had produced a gun on staff at the Europcar business at Parramatta Road in Granville. After driving to the location, they located the applicant who was on a footpath near a phone booth. He was handcuffed at the time and Senior Constables Sullivan and Tang were having a conversation with him. He said that he assisted the two officers in searching the applicant's suitcase and bags and other items he had in his possession. He agreed that he located a black torch in the applicant's possession but could not recall where the torch was found.
When shown exhibit D, Constable Gosper said that he located "one of these… in a black suitcase. Like, travel bag sort of thing". He agreed that both plastic pistols were located in the applicant's possession.
In cross-examination, he disagreed that he had taken the "firearm" out of a package.
When asked to look at exhibit D, Constable Gosper agreed that "it's not real".
The two plastic pistols were examined by Mr Joel Waszczuk, an expert Forensic Ballistics Investigator. His report dated 17 April 2018 was admitted as exhibit 8 and an eight page document of photographs and comparisons was admitted as exhibit 9.
In his report, Mr Waszczuk noted that each of the exhibits he examined were measured and found to be approximately 197mm (7.76in) in overall length and approximately 45 grams in weight. Each was constructed of black plastic and each produced a clicking noise when the trigger was pulled rearwards. The orange coloured triggers on the exhibits were the only externally visual moveable components. Mr Waszczuk expressed the following opinions: "(7b) The exhibits… each display visual similarities to the library comparison NORINCO Model 1911A1 self-loading pistol, including: - General frame shape - Grip plate style and shape - Trigger and trigger guard - External hammer - Grip safety - Front and rear sights - Protruding slide [The comparison NORINCO Model 1911A1 self-loading pistol is capable of propelling a projectile by means of an explosive. It weighs approximately 1035 grams and is approximately 211mm (8.3in) in overall length.] (7c) The exhibits… whilst not imitating any particular brand of self-loading pistol, each display similar external features in the form of size and appearance, that are common to this class of firearm. They each substantially imitate a firearm for which a licence or permit is required in this State. No literature material was used for the examination of the exhibits. In my opinion the exhibits, each are an IMITATION FIREARM as described in Section 4D(3) of the Firearms Act 1996."
In cross-examination, Mr Waszczuk was shown a Norinco pistol and agreed there was a large difference in weight between exhibit D and the Norinco pistol, that the width of the grip of the Norinco was larger than the exhibit and the trigger guards were different. He further agreed that the exhibit did not replicate any particular brand of pistol. He agreed that the exhibit did not have a magazine and could not fire a projectile.
When asked how many firearms he had tested that had a 'red plug (sic) on the muzzle', he replied "zero". He did not agree that the red trigger indicated that it was a children's toy. Expressing an opinion as a lay witness, he believed that exhibit D would be something used as a child's toy and could be used in the course of play. He believed that the orange cap was "an American thing". When asked further, Mr Waszczuk gave the following evidence: "Q. Could you elaborate on what you mean by "an American thing?" A. I believe according to American manufacture, they do that to indicate that it's not a real gun. Q. And to indicate what? A. I guess that it's not dangerous. Q. Possibly to indicate that it's a toy? A. Possibly, yes."
Mr Waszczuk opined that the two plastic pistols were imitation firearms, visually similar to a Norinco Model 1911A1 self-loading pistol. He stated that it was outside his area of expertise to provide any opinion as to whether the pistols may fall into the exception of a children's toy under s 4D(4) of the Firearms Act.

The applicant's case at trial

The applicant's case was that he did not point a toy pistol at the complainants but had produced a torch, that when found by the police, one toy pistol was in clear packaging and the other was in a box.
The applicant gave evidence at trial.
The applicant said that Mr Hooper and Mr Menezes refused his application to hire a car and Mr Hooper told him to leave. The applicant said that he left his luggage inside the gate to the car yard, crossed the road to a nearby pub to get some coins to make telephone calls and shortly thereafter returned to collect his luggage.
The applicant gave evidence that Mr Hooper then came out of the office holding a stiff "white rod", threatened him and told him to leave. The applicant said "at that point of time, I got the torch out of my bag" and turned it on. In his other hand he was holding a mobile phone. The applicant stated that when Mr Hooper "saw the mobile in my hand, he ran away, he ran back".
In relation to the plastic pistols, the applicant said he bought them from the "Reject Shop" with the intention of giving them to his seven year old son. He said that the first plastic pistol was found by the "lady police officer" (Senior Constable Sullivan) and that it was contained within clear plastic hanging from the handle of his suitcase. There was also a $37 receipt hanging from the handle. He said that the plastic pistols were in their own packaging with the words "suitable for up to seven years old" written on it. The applicant told the jury that he asked the police "why do you open it?" The second plastic pistol was in a box under his luggage when the police found it. He had purchased both exhibits from the Reject Shop for $3.50 and the $37 receipt was for the one bag of shopping.
In cross-examination it was put to the applicant that there was no packaging for the plastic pistols seized by the police, nor was there a box that contained a plastic pistol listed in the items seized by police and nor was there a receipt from the Reject Shop. The applicant disagreed. He confirmed his position that there was a box with the marking "[s]uitable for children seven years of age" found by police. He stated that one plastic toy pistol was found in a box, which was opened by "the first officer" to whom he said "that's a toy and you are opening the box, please don't touch it". He said that the receipt was inside a clear plastic bag and that it was one of many "missing items" that were in his possession on 27 July, but not included in the listed items found by police. He agreed that at the time police arrested him they were screaming "[w]here's the gun, where's the gun", however, he said that he told them "[i]t's a toy" and that it was in a clear plastic bag, which was visible.
Before specifically dealing with the grounds of appeal, there are two issues which are material to the outcome of the appeal.

The possession issue

It is necessary to consider the Crown's case at trial for counts 1 and 2. Was it the Crown's case that the applicant was in possession of what the Crown alleged were the imitation self-loading pistols at the time of the intimidation offences (counts 3 and 4) or at the time of his arrest?
During submissions to this Court, the respondent argued that the Crown case was that the time of possession was when the applicant pointed one of the plastic pistols at Mr Hooper and Mr Menezes. A difficulty with this argument was that only one plastic pistol was pointed at the complainants, whereas there were two counts of possession. The respondent's reply was that the applicant had one plastic pistol in his hand and the other plastic pistol in his suitcase at that time.
The applicant's submission was that the time of possession must be at the time when his belongings were searched by police and the two plastic pistols were located following which he was arrested.
The respondent's submissions should be rejected. The Crown case at trial was that for counts 1 and 2, the time of possession was when the plastic pistols were found in the applicant's belongings and he was arrested. So much is clear from the following passages in the Crown Prosecutor's opening address to the jury: "…you're going to hear that both men saw [the applicant] go into a bag that he had - and you'll hear evidence that [the applicant] had a number of bags in his possession on this evening - go into the bag and Mr Menezes will tell you that he saw that he produced a gun. And as he did this, [the applicant] ran towards both men and made a clicking sound with the gun. Upon this interaction, both men have then turned around, run back into their office, locked the door, run upstairs and Mr Hooper has [rung] triple-0. That is different, obviously, from ringing Granville Police Station the first time. This time he rings triple-0. Within a short period of time, a number of police attended the location and arrested [the applicant] in a phone box just outside the premises, and it is during the search of [the applicant's] property that they located two guns in his possession, two replica guns in his possession, and I'll talk about that throughout this trial but a little bit further in a moment. … …So you'll see there that on the first page there are three counts - it's a fancy lawyer word for charges, that's all that means - and over the page, there's a further one, and you'll see that the first two are identical. All that is or all that means … when [the applicant] was arrested, he had two guns as opposed to one. He had two - that's why there's two charges. So in terms of counts 1 and 2 only, dealing with the imitation self-loading pistol, which you'll hear that's how the expert talks, you'll hear from that expert that the pistols found in the property of [the applicant] are imitations and therefore they're prohibited in New South Wales… … The other question is entirely up to you at the end of this trial. However, regardless of that issue, the items were found in [the applicant's] possession, as in, he had control of them when he was arrested. So the issue will be whether or not they're imitations or whether or not they're children's toys. That's for the first two counts." (Emphasis added).
And from the Crown Prosecutor's closing address: "The elements of this allegation that you need to be satisfied are [the applicant] possessed an imitation pistol and that was not authorised by a licence or permit. So, let's break that up into three points. [The applicant] possessed the pistols. That's not been challenged, that is, you can accept because it hasn't been challenged that when he was arrested, he was in possession… The short version is, he had them on him when he was arrested; he's in possession of them. That's why it wasn't being challenged." (Emphasis added).
When the Crown's opening was pointed out by this Court to the Crown representing the respondent, the respondent accepted that the time of possession was when the applicant was arrested. [1]

The construction issue

The second issue is the construction and application of s 4D(4) of the Firearms Act ("the Act"). Section 4D makes clear that the Act applies to an "imitation firearm" in the same way as it applies to a firearm, subject to the exception in s 4D(4). An imitation firearm is defined by s 4D(3) to mean: (3) …an object that, regardless of its colour, weight or composition or the presence or absence of any moveable parts, substantially duplicates in appearance a firearm but that is not a firearm."
Section 4D(4) is as follows: (4) However, an imitation firearm does not include any such object that is produced and identified as a children's toy.
The principles and objects of the Act are set out in s 3: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
Section 7(1) of the Act provides: 7 Offence of unauthorised possession or use of pistols or prohibited firearms (1) A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit. …
The applicant submitted that the proper construction of s 4D(4) required consideration of the purpose of the manufacture of the object and the intrinsic qualities of the object. The applicant argued that the provision was not concerned with situational factors such as how, why and in what circumstances the object is used and how the object could be used. The applicant cited Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd ("Howard"). [2] The applicant accepted that the object of the Act was to promote public safety but contended that the Act did not seek to do so at any cost. So much was said to be obvious from the Act allowing citizens in some circumstances to possess real firearms notwithstanding the associated risk to the community. In construing s 4D(4), the applicant argued that the significance of the broad underlying purpose of the legislation should not be overstated.
The applicant submitted that the most that could be said about the purposes of the Act in relation to ss 7 and 4D is that Parliament has sought to prohibit the possession of some but not all objects that substantially duplicate in appearance, a firearm. In particular, Parliament has been careful not to prohibit the possession of items that are produced and identified as children's toys.
The respondent also cited Howard and contended that a purposive construction of s 4D(4) should be adopted. The respondent submitted that when considering whether an object was exempted from the operation of the Act by virtue of being "produced and identified as a children's toy", the question of how that object could be used was a relevant consideration. The ordinary meaning of the term "identified as a children's toy" was submitted to be capable of accommodating the construction that included the intrinsic qualities of an object by reference to the circumstances in which the toy could be possessed.
The respondent emphasised that the purpose of the Act was fundamentally to improve and ensure public safety. The respondent argued that the construction of the term "identified as a children's toy" advocated by the applicant would operate strongly against the purpose of the Act as it would enable the possession of an object which "substantially duplicates in appearance a firearm (but which, on a close and calm examination, could be identified as possibly being a children's toy by reason of its intrinsic qualities) in circumstances which suggest it might be a real weapon" and would not be a crime.
There was no discussion in this Court as to the meaning of the verb "produced" where it appears in s 4D(4). It was accepted by the parties that the contextual meaning of "produced" was to "bring into existence" or to "manufacture". The argument was confined to the verb "identified".
In Howard, the terms "produced and identified as a children's toy" in s 4D(4) were considered by Wilson J in an appeal from the Local Court. Following the seizure of a number of objects with the appearance of firearms by police from a store, the store owner sought orders for their return and the police sought their forfeiture. Central to both applications was whether the objects were imitation firearms or were children's toys within s 4D(4). The Magistrate concluded that the objects were children's toys and ordered that they be returned to the owner. Wilson J held that the Magistrate "fell into error by confining his consideration of whether or not the items were children's toys to whether they were produced, packaged and otherwise labelled as such." [3] Her Honour observed that "the production of the item, that is, its manufacture, is but one part of the statutory definition. Separate regard must also be had to the 'identification' of the item." [4]
Her Honour said at [50]-[53]: "[50] In his judgment of 3 March 2017 his Honour focused on this evidence as conclusive of both production and identification, effectively considered together. However, the words and evidence relevant to both 'production' and 'identification' had to be separately considered and separately determined. Evidence relevant to the purpose for which the items were produced was not necessarily relevant to the identification of the items. How the items were to be identified depended upon matters intrinsic to the items themselves and could not be determined by packaging or other removable paraphernalia. [51] The objective evidence relevant to the identification of the items included: 1. the fact that the items were made of metal or die-cast metal rather than plastic or some other light weight material; 2. they were heavy to hold, similar to a comparable firearm; 3. many of the items had moveable parts consistent with the operation of a firearm; 4. the items were produced in colours consistent with a firearm rather than the sort of bright colours typically associated with children's toys; and 5. expert ballistics evidence was that the items substantially duplicated the appearance of the corresponding firearms, being self-loading pistols, revolvers, and select-fire rifles. [52] Further, in construing and applying the legislation, it was incumbent on his Honour to give full effect to the primary object of the Firearms Act of ensuring community safety. His conclusion that 'parliament must have intended that toy guns are not to be regarded as imitations despite varying degrees of realism' failed to give proper attention to the purpose of the legislation to protect the community from the illegal possession and use of firearms or imitation firearms. To conclude that an item which substantially duplicated the appearance of a firearm was a children's toy because of its packaging was to reach a conclusion contrary to the purpose of the legislation. [53] In focusing on the production of the items as children's toys, and failing to separately consider their identification by reference to qualities intrinsic to them the magistrate misconstrued s 4D(4), that being an error of law."
It is evident that in Howard, Wilson J confined the identification of the objects in question as a children's toy to "matters intrinsic to the items themselves" and there appears not to have been any discussion about the circumstances in which the items were possessed or could be used. On the factual background of Howard that is unsurprising as the objects were on display in a locked glass cabinet, or stored under a counter or held in a nearby storage facility.
I am unable to accept the submission that is advanced on behalf of the applicant that the exception in s 4D(4) is not concerned with the circumstances in which the object is being used. The verb "identify", in this context, means to ascertain or assert what a thing is.
The verb "identified" means how the identity of a thing has been ascertained or asserted. The question whether an object has been identified as a children's toy raises for consideration, matters intrinsic to the object, the use of the object and the intention of the person using it, if the object is being used at the time it is asserted to be in the person's possession.
An object that by matters intrinsic to it would be readily identified as a children's toy, could cease to be a children's toy because the object has otherwise been asserted not to be a toy. For example, a plastic rifle which by matters intrinsic to it would normally be regarded as a children's toy could lose that identification, when a person pressed it into the back of another's head saying "this is a hold-up, hand over the money or I will shoot". The use of the plastic rifle and the intention which accompanied that use would identify the plastic rifle otherwise than as a children's toy.
The principles and objects of the Act are set out in s 3. As Wilson J observed in Howard at [41]: "Clearly, the overriding purpose of the Firearms Act is to improve and ensure public safety, in part by prohibiting the unauthorised possession of firearms."
In my view, the construction of the term "identified as a children's toy" that is advocated by the applicant does not fit comfortably with the purposes of the Act.
The purposive construction that I have advanced does not expand the scope of a criminal offence beyond its textual limits. [5] On the other hand, the respondent's construction that includes how the object could be used does and I do not accept that submission. I have no doubt that any children's toy which duplicates in appearance, a firearm, could be used in the commission of a crime and be identified otherwise than as a children's toy.
No submissions were made that past use of the object was relevant to the construction issue. Properly construed, s 4D(4) could not embrace matters prior to the time that the object was alleged to have been in a person's possession.
The identification of the object as a children's toy is confined to the time of possession and the past and future use of the object is an irrelevant consideration.
As the parties' arguments that the jury's verdicts on counts 1 and 2 are unreasonable focus upon the conclusions reached on the possession and construction issues, I propose to deal with Ground 2 of the appeal.

Ground 2: The verdicts on counts 1 and 2 are unreasonable because the jury ought to have concluded the Crown had failed to disprove the items were produced and identified as children's toys

Argument

The applicant contended that an examination of the plastic pistols reveals the only reasonable conclusion is that the items were produced and identified as children's toys. The applicant argued that it is plain the plastic pistols are children's toys based on the materials used, the weight and the bright coloured features which are "typically associated with children's toys". The applicant submitted it was not open to the jury to hold otherwise and that their verdicts on counts 1 and 2 were unreasonable.
In oral submissions, the applicant contended that at the time of his arrest, the police officer immediately recognised the plastic pistol as a toy, and the only conclusion is that the exception in s 4D must apply. On that basis, the applicant submitted the verdicts were unreasonable.
The respondent contended that the consideration of this ground of appeal depends on this Court's determination on the construction of s 4D(4) of the Act.
The respondent argued that the determination of whether the plastic pistols were not "produced and identified as a children's toy" was a practical fact-finding task well suited to a jury. The respondent submitted that if the circumstances of the possession are to be taken into account, the Court would be undertaking a very similar function to that of the jury but without the advantage enjoyed by the jury of having seen and heard the witnesses. The respondent pointed to the circumstances of the possession; a personal confrontation, pointing the plastic pistol at the victims and pulling the trigger to create a clicking sound whilst moving towards them. The respondent submitted those circumstances were antithetical to the plastic pistol being "identified as a children's toy", that the finding by the jury that there was no reasonable possibility that the plastic pistols were "produced and identified as children's toys" was reasonably open to them on the evidence and that the verdicts of the jury were not unreasonable.
Furthermore, the respondent contended if this Court did not find the circumstances in which the plastic pistols were possessed to be relevant to the determination of the question in s 4D, the Court would make its own assessment of the evidence by considering only their intrinsic qualities. The respondent argued that the only features of the objects which could lead to the conclusion that the plastic pistols were children's toys are the "orange plastic 'stopper' at the end of the barrel, and the orange plastic trigger." Otherwise, the respondent contended the aspects of the object which indicate it is not a toy are:

The size is the same as a real pistol;
The shape is the same as a real pistol;
The colours are principally consistent with the colours of a real pistol;
The trigger was a moveable part;
When the trigger is pulled it makes a clearly audible clicking sound;
The scoring along the sides is similar to a real weapon;
The plastic trigger and plastic stopper are relatively minor parts and are not visible from all directions;
The plastic trigger almost completely disappears from view when the gun is held with a finger on the trigger.

The respondent further argued that the uncontested evidence of the ballistics expert that the items substantially duplicated the appearance of a real pistol is relevant to the consideration of whether the objects are "identified as" children's toys.
The respondent submitted that leave to appeal on this ground should be refused, and if leave were granted, the appeal should be dismissed as the Court would not reach the conclusion that the verdicts of the jury were unreasonable.

Consideration

In considering the applicant's appeal against conviction, the Court is required to examine all of the evidence in determining whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. In Sio v R, [6] Leeming JA summarised the legal principles applicable to deal with a ground of appeal that a verdict was unreasonable. His Honour said at [40]: "This proposed ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question on appeal is whether 'upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty': M v The Queen [1994] HCA 63; 181 CLR 487 at [7]; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]; Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at [31]-[34]. This being a question of fact, it is necessary for the Court to decide by making its own independent assessment of the whole of the evidence: M v The Queen at [63]; SKA v The Queen at [14] and [20], while having regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and which has had the benefit of having seen and heard the witnesses: M v the Queen at [7]; SKA v The Queen at [13]."
In Libke v R, [7] Hayne J (with whom Gleeson CJ and Heydon J agreed) emphasised (at 596-597) that the question is whether the jury must, as distinct from might, have entertained a reasonable doubt about the applicant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
The High Court emphasised in The Queen v Baden-Clay, [8] that the setting aside of a jury's verdict on the ground that it is unreasonable is a serious step "…not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial". [9] The Court said at [66]: "With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'" (Footnotes omitted).
It is essential to bear in mind when considering whether the verdicts of the jury for counts 1 and 2 are unreasonable, that the Crown case at trial was not that the applicant was in possession of the imitation firearms at the time he pointed one of the plastic pistols at the complainants. This criminal conduct is embraced in the intimidation counts (counts 3 and 4). The applicant accepts the verdicts of guilty on those counts.
In my respectful opinion, the trial judge's directions did not make the distinction between the possession counts and the intimidation counts clear to the members of the jury. His Honour referred to the Crown asking the jury "to draw the inference that as the [applicant] was in possession of the imitation pistols at the time of his arrest, that he was also in possession of them in the European car-yard, and that the pistol was observed by Mr Menezes following which Mr Hooper made a Triple 0 call to police". [10] (Emphasis added).
When reminding the jury of the Crown's closing address on the issue of the applicant's possession of the pistols, the trial judge said: "He noted the evidence of the expert that if the item had been used by a child at play then it could well be regarded as a toy, but that the circumstances here involved an adult male using an item at night, following a dispute. It is the Crown's submission that it has eliminated any reasonable possibility on the evidence that the subject items were both produced and identified as children's toys, and that accordingly, you would return a verdict of guilty." [11] (Emphasis added).
The onus was on the Crown to prove beyond reasonable doubt that at the time the two plastic pistols were found by police in the applicant's possession, that these plastic pistols were imitation pistols and the applicant was not authorised to possess them by a licence or permit. The Crown was obliged to exclude as a reasonable possibility that each plastic pistol was produced and identified as a children's toy.
The evidence of Mr Menezes and Mr Hooper was not relevant to the production and identification question as it concerned the applicant's past use of one of the plastic pistols, even though that past use was shortly before the pistols were found by police in the applicant's possession.
The relevant evidence consisted of the police officers, particularly Senior Constable Sullivan and Constable Gosper, Mr Waszczuk and the applicant.
As has been observed at [10] above, the jury rejected the applicant's evidence of what occurred with Mr Menezes and Mr Hooper. It was also open to the jury to reject his evidence that the first plastic pistol was found within clear plastic hanging from the handle of his suitcase, the second plastic pistol was in a box and the plastic pistols were in their own packaging with the words "suitable for up to seven year olds" written on the packaging.
Senior Constable Sullivan did not agree that she found the plastic pistol in packaging but gave evidence that when she found it in the applicant's belongings she said "there it is, it's a - it's a toy." Constable Gosper located one of the plastic pistols in a black suitcase and disagreed that he had taken it out of a package. When asked to look at exhibit D, Constable Gosper agreed that it was not real.
Mr Waszczuk expressed the opinion that the plastic pistols displayed visual similarities to a Norinco Model 1911A1 self-loading pistol but agreed there was a large difference in weight between exhibit D and the Norinco, that the width of the grip of the Norinco was larger than the exhibit and the trigger guards were different. He further agreed that the exhibit did not replicate any particular brand of pistol.
A particular feature of exhibit D was the orange cap on the muzzle. Although stating that was an "American thing", in the passage at [33] above, Mr Waszczuk opined the orange cap was on the muzzle to indicate that it was not a real gun, it was not dangerous and possibly a toy.
This Court was invited to view exhibit D. From those matters intrinsic to the exhibit itself, particularly its weight, plastic construction, orange coloured trigger and orange cap in the muzzle, it is hardly surprising that Senior Constable Sullivan recognised the plastic pistol she found to be a toy. Furthermore, a moveable trigger with an audible clicking sound is not an uncommon feature of a children's toy.
Both plastic pistols were located in the applicant's belongings. There was nothing in the applicant's use of the plastic pistols at the time of possession which asserted them to be other than a children's toy.
I have concluded that upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was in possession of an imitation self-loading pistol, contrary to s 7(1) of the Act (counts 1 and 2). The Crown did not exclude as a reasonable possibility that each plastic pistol found in his possession was produced and identified as a children's toy. Accordingly, the convictions for count 1 and 2 are to be quashed and verdicts of acquittal are to be entered.
In my respectful opinion, the guilty verdicts were reached in counts 1 and 2 as the trial judge summarised the Crown's closing address without qualification and failed to give the jury clear directions as to the evidence which was relevant to these counts.

Re-Sentence

As the convictions for counts 1 and 2 are to be quashed, it is unnecessary to consider Grounds 1 and 3 of the appeal. However, it is important to note that the applicant's complaint that his sentence was manifestly excessive was directed at the indicative sentences of 2 years imprisonment for counts 1 and 2. The applicant did not challenge the indicative sentences of 18 months for counts 3 and 4.
The applicant is to be re-sentenced as he is to be acquitted of counts 1 and 2. An aggregate sentence is to be imposed for counts 3 and 4. The maximum penalty for these offences is 5 years imprisonment.
"The ceiling principle" applies so that longer sentences are not to be indicated for counts 3 and 4 than were indicated by the trial judge for these counts. [12] The finding of special circumstances and the variation of the statutory ratio between the balance of term and the non-parole period made by his Honour will be preserved.
As the applicant was released to parole on 26 October 2018 and has served the non-parole period of 15 months, there is no utility in considering whether a non-custodial sentence is appropriate.
In considering the imposition of an aggregate sentence, I have assessed individually the criminality in each offence and have had regard to the requirements of Pearce v The Queen (1998) CLR 610; [1998] HCA 57. There is to be a degree of partial accumulation.
Giving weight to all relevant factors and in the exercise of my sentencing discretion, the applicant is sentenced to an aggregate term of imprisonment consisting of a non-parole period of 11 months commencing on 27 July 2017 and expiring on 26 June 2018 with a balance of term of 11 months commencing on 27 June 2018 and expiring on 26 May 2019.
I indicate sentences of 18 months imprisonment for counts 3 and 4.

Orders

The orders that I propose are: 1. Grant leave to appeal against the convictions on the first and second counts of possess an imitation self-loading pistol without authorisation by license or permit contrary to s 7(1) of the Firearms Act 1996 (NSW). 2. Allow the appeal. 3. Quash the convictions on the first and second counts. 4. Quash the aggregate sentence imposed in the District Court of New South Wales on 8 June 2018. 5. For counts 3 and 4, the applicant is sentenced to an aggregate term of imprisonment consisting of a non-parole period of 11 months commencing on 27 July 2017 and expiring on 26 June 2018 with a balance of term of 11 months commencing on 27 June 2018 and expiring on 26 May 2019.
LONERGAN J: I agree with Price J and the orders which he proposes.

Endnotes

Tcpt, 21 August 2019, 9(20).
[2017] NSWSC 981.
Howard [2017] NSWSC 981 at [45].
Howard [2017] NSWSC 981 at [45].
Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4.
[2015] NSWCCA 42.
(2007) 230 CLR 559; [2007] HCA 30.
(2016) 258 CLR 308; [2016] HCA 35.
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65].
SU, 2 May 2018, p 8.
SU, 2 May 2018, p. 18.
R H McL v The Queen (2000) 203 CLR 452 at [72].

Amendments 22 October 2019 - Re-order paragraph numbering only - system error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2019

Firearms Act 1996(NSW)ss 3, 4D, 7

Criminal Appeal Act 1912(NSW)s 5, s 5(1)(b).

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