Taufa v R; Siola'a v R

First incident

1. Counts 1-4 concerned an incident on 7 May 2017.
2. 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. 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. The appellants both wore a top with a hood, and each had what Mr Dung described as handguns being greyish black in colour.
5. 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. 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. 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. 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. 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.

Second incident

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. Mr Siola'a was arrested on that day and Mr Taufa was arrested at a later time.
7. 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.
8. 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. So that the arguments can be properly understood, it is necessary to set out various legislative provisions.
2. The offence is found in s 113 of the Crimes Act 1900 (NSW): 113 Breaking etc into any house etc with intent to commit serious indictable offence (1) A person who breaks and enters any dwelling-house or other building with intent to commit any serious indictable offence therein is guilty of an offence and liable to imprisonment for 10 years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.
3. What amounts to "circumstances of aggravation" and "circumstances of special aggravation" is found in s 105A of the Crimes Act: circumstances of aggravation means circumstances involving any one or more of the following - (a) the alleged offender is armed with an offensive weapon, or instrument, (b) the alleged offender is in the company of another person or persons, (c) the alleged offender uses corporal violence on any person, (d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person, (e) the alleged offender deprives any person of his or her liberty, (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed. circumstances of special aggravation means circumstances involving any or all of the following - (a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person, (b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person, (c) the alleged offender is armed with a dangerous weapon. (emphasis added)
4. Section 115A of the Crimes Act provides for alternative verdicts in relation (inter alia) to s 113 offences: 115A Alternative verdicts (1) Aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (2) Specially aggravated offence reduced to aggravated offence If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. (3) Specially aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. This subsection does not apply to an offence if the jury proceeds under subsection (2) in relation to it.
5. Section 7(2) of the Criminal Appeal Act 1912 (NSW) provides: (2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.
6. The circumstances of special aggravation referred to in count 6 were, armed with a dangerous weapon, namely, an imitation firearm.
7. Relevant definitions for count 6 are contained in s 4 of the Crimes Act, Armed, in relation to a weapon, or instrument, or an offensive weapon, or instrument, that is a dangerous weapon, includes bearing or having the immediate physical possession of the weapon, or instrument. Dangerous weapon means - (a) a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or (c) a spear gun. Offensive weapon or instrument means - (a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.
8. Section 4D of the Firearms Act 1996 (NSW) contains provisions relating to imitation firearms: 4D Special provisions relating to imitation firearms (1) This Act applies to an imitation firearm in the same way as it applies to a firearm, subject to the following - (a) the Commissioner may not issue a licence authorising the possession or use of an imitation firearm (except to a firearms dealer) but may issue a permit authorising the possession or use of an imitation firearm, (b) an imitation firearm is not required to be registered, (c) the holder of a permit authorising the possession or use of an imitation firearm (a possession or use permit) is not required to be authorised by a permit to acquire an imitation firearm to which the possession or use permit applies. (2) For the purposes of the application (as provided by this section) of this Act to imitation firearms - (a) an imitation firearm that is an imitation of a pistol is taken to be a pistol, and (b) an imitation firearm that is an imitation of a prohibited firearm is taken to be a prohibited firearm. Note - Reference to a pistol includes a prohibited pistol. (See section 4C.) (3) In this section, imitation firearm means 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. (4) However, an imitation firearm does not include any such object that is produced and identified as a children's toy.
9. The Criminal Procedure Act 1986 (NSW) relevantly provides: 11 Description of offences The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law. … 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds - … (b) for want of an averment of any matter unnecessary to be proved or necessarily implied, … 17 When formal objections to be taken (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn. (2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect.

Ground 1: The conviction in relation to count 6 on the indictment should be quashed because of a defect in the indictment, namely a failure to identify an element of the offence.

Ground 2: As a result of the defect in the indictment, the learned trial judge misdirected the jury as to the elements of the offence by failing to direct the jury that a conviction on count 6 required proof beyond reasonable doubt of a circumstance of aggravation as prescribed by s 113(2) of the Crimes Act 1900.

1. The indictment contained count 6 as follows: On 12 May 2017, at Cabramatta in the State of New South Wales, did attempt to break and enter the dwelling house of Hoang Dung Nguy, situated at XX Curtin Street, with intent to commit a serious indictable offence, namely, larceny in circumstances of special aggravation, namely, armed with a dangerous weapon, namely, an imitation firearm. S 113(3) Crimes Act 1900 Law Part Code 605 S 344A(1) Crimes Act 1900 Law Part Code 1101
2. 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. 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: (a) An offence contrary to sub-s (1) in circumstances of aggravation, and (b) An offence contrary to sub-s (2) in circumstances of special aggravation
4. 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. 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. 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. 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: (i) The accused; (ii) attempted to break and enter the premises described; (ii) those premises were a dwelling house; (iv) with the intention of committing a serious indictable offence of larceny; (v) at the time of the offence the accused was armed with a dangerous weapon being an imitation firearm.
8. 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. 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. 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. The Crown submitted that there were four elements of count 6 as follows: (i) The accused "broke and entered" a dwelling house or other building; (ii) The accused had an intent to commit a serious indictable offence; (iii) The break and enter is committed in "circumstance of aggravation"; and (iv) The break and enter is committed in "circumstances of special aggravation".
12. 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. 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. 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. 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. 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. 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. 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]: In Rockdale Beef supra, Basten JA went on to conclude, at [125], that the "failure to allege an essential legal element of the offence" did not, in the circumstances of that case, "involve a fundamental issue going to the fairness of the prosecution". His Honour said that the complaint should be characterised as technical. Significantly, his Honour said that parts of the charge could be understood as referable to the omitted element. …
3. 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. 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. 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: [42] In O'Donoghue the appellant was charged with an offence contrary to s 112(2). The charge read as follows: "On (date) at (place) he did break and enter a dwelling house at (address) and commit a serious indictable offence therein, namely, did assault (victim), occasioning to him actual bodily harm in circumstances of aggravation, namely, that corporal violence was used on (the victim)." [43] The facts supporting this charge were that after the appellant had broken and entered the premises he picked up a scooter and threw it at a Mrs Grey. It missed her but hit the wall and the handlebars broke off. The victim was asleep in an adjoining room at the time. The commotion woke him and he came into the room where the appellant and Mrs Grey were. When the appellant saw (the victim) he picked up the handlebars and ran at him. The victim tried to fend off the appellant and get away from him, but the appellant pursued him through the house and hit him with the handlebars, bruising his forehead and his left wrist and cutting his hand. [44] On appeal it was submitted on behalf of the appellant that the evidence did not support the conviction on the first count because the Crown relied on the same act, namely the striking with the handlebars, in order to prove the two elements of the charge, the commission of the serious indictable offence and the use of corporal punishment. It was submitted that because the serious indictable offence involved no more than the occasioning of actual bodily harm, the result was that the appellant had been punished twice for one act. [45] In his judgment, Barr J with whom Spigelman CJ and Wood CJ at CL agreed, made reference to both Pearce v The Queen (1998) 194 CLR 610 and R v De Simoni (1981) 147 CLR 383 and said the following: "In my opinion, the appellant's act of attacking Mr Tenkate with the scooter handlebars and injuring him was sufficient to constitute both a serious indictable offence, namely an assault occasioning actual bodily harm and the circumstance of aggravation, namely the use by the appellant of corporal violence on a person. [22] [46] His Honour said in relation to Pearce: "...it is important to note that what the justices in Pearce v The Queen did not say was that single act cannot be a component of more than one offence or that a single act may constitute more than one component of a single offence." [13] [47] In relation to De Simoni his Honour said: "There is, in my opinion, no significant difference between the facts of De Simoni and those of the present case. In each case, a single act was held sufficient at once to constitute an element of the simple offence and the circumstance which aggravated it exposing the offender to the risk of a higher sentence". [48] De Simoni is authority for the proposition that when sentencing an offender a court is entitled to consider all the conduct of the accused, including that which may aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. An offence that carries a higher maximum penalty than the offence for which the offender is being sentenced will be a more serious offence for the purposes of this principle. [49] In O'Donoghue, Barr J further said at [23]-[25]: "There is another argument, which I think is really a manifestation of the first, that because it has a component which, however described, amounts to corporal violence, the simple offence created by subs (1) cannot be aggravated by the addition of the element of corporal violence created by subs (2). The appellant was punished once for corporal violence under subs (1) and again for corporal violence under subs (2). I think that the submission mistakes the nature of the relevant element in subs (1), which is not assaulting or doing bodily harm or corporal violence. All subs (1) requires is proof of an act which constitutes a serious indictable offence. The reference in the charge to the occasioning of actual bodily harm stated a particular of the element of the offence, not the element itself. The analogy of an assault with an act of indecency is again instructive. All that that offence requires is an assault which has a particular quality, namely that of being an indecent act. All that the aggravated offence of which the appellant was convicted requires is corporal violence which has a particular quality, namely that of constituting a serious indictable offence."
6. In Firbank, count 4 on the indictment was as follows: 4. On 11 September 2008 at Strathfield South in the State of New South Wales did break and enter a dwelling-house of Vincenzo Ritorto, knowing that there was a person in the said dwelling house, and did commit a serious indictable offence therein, namely reckless wounding, in circumstances of special aggravation, namely that at the time of the break and enter did wound Vincenzo Ritorto. Section 112(3) Crimes Act 1900 Law Part Code: 35337
7. 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. 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. Justice McClellan rejected the submission and held at [53] that the decision in O'Donoghue was directly on point and should be followed.
10. Similarly, in Regina v Bennett [2014] NSWCCA 197 Hall J said at 55: For a conviction of an offence under s 112(1)(a) it has been accepted that the same act can be relied upon to prove both an element of the offence charged and a matter of aggravation: R v O'Donoghue (2005) 151 A Crim R 597; [2005] NSWCCA 62. That was a case in which the accused was charged with breaking and entering a dwelling and committing a serious indictable offence namely, assault occasioning actual bodily harm in circumstances of aggravation, being the use of corporal violence.
11. The elements of the attempted offence contrary to s 113(3) of the Crimes Act are: (1) The accused attempted to break and enter into a dwelling-house or other building; (2) the accused had an intent to commit a serious indictable offence; (3) the break and enter was committed in circumstances of aggravation being that the offender was armed with an offensive weapon; and (4) the break and enter was committed in circumstances of special aggravation, that is, that the offender was armed with a dangerous weapon.
12. 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. 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]: … [H]istory demonstrates that it has long been sufficient to describe the nature of an offence by use of the statutory language: see ss 145A of the former Justices Act 1902 (NSW) and Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 174 (Jordan CJ, Davidson and Halse Rogers JJ agreeing) and now s 11. However, it does not follow that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for the purposes of s 16(1)(b).
14. 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. The trial judge gave the following directions in relation to Count 6: Count 6 is in these terms: "On 12 May 2017, at Cabramatta in the State of New South Wales, did attempt to break and enter the dwelling house of Hoang Dung Nguy, situated at 50 Curtin Street, with intent to commit a serious indictable offence, namely, larceny in circumstances of special aggravation, namely, armed with a dangerous weapon, namely, an imitation firearm." In order to find the accused guilty of this offence, you must be satisfied of all of the following five elements beyond reasonable doubt: firstly, the accused; secondly, attempted to break and enter the premises described; thirdly, those premises were a dwelling house; fourthly, with the intention of committing the serious indictable offence of larceny; fifthly, at the time of the offence the accused was armed with a dangerous weapon, an imitation firearm. In order to prove that the accused is guilty of an attempt to commit the offence of breaking and entering the premises described with the intention of stealing whilst armed with a dangerous weapon, first, the Crown must prove beyond reasonable doubt that the accused intended to committed (sic) the crime which the Crown alleges he attempted to commit. In other words, the accused must have intended to commit the physical act or acts constituting the crime attempted - in this case concerning the first incident alleged of breaking and entering the premises to steal. Next, the Crown must prove beyond reasonable doubt that the accused, with that intention, did some act towards committing the intended crime which was immediately connected with the commission of that crime and which cannot have any other reasonable purpose other than the commission of the crime. … Now, essential element 5 of this offence is, namely, at the time of the offence the accused was armed with a dangerous weapon, an imitation firearm. On this occasion an object was found behind a garden shed by the police in the area where Mr Dung asserted he saw Mr Siola'a throw something. You have this object. And this brings me back to the written directions contained in the elements document under count 1 and under the heading "Imitation Firearm". … In summary, for the Crown to prove that the object was an imitation firearm and hence a dangerous weapon, it must prove beyond reasonable doubt, firstly, the object, 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. Secondly, the object either has not been produced as a children's toy or has not been identified as a children's toy or is a toy but not a children's toy.
16. 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), The test is whether or not the verdict which the jury reached must have included a finding on the element which the Crown failed to allege.
17. 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. 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. 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. Rule 4 applies with the result that leave should be refused to raise ground 2.
21. I would reject ground 1.
22. I propose the following orders: 1. As to the conviction appeal, 1. Refuse leave under Rule 4 in relation to Ground 2. 2. Otherwise, dismiss the appeal.
23. I agree with Adamson J in relation to the appeal against sentence.
24. 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: "4. The sentencing judge erred by finding that in relation to Count 2 that the applicant was in possession of a toy gun on 7 May 2017. 5. The sentencing judge erred by taking into account an element of the specially aggravated offence in breach of R v De Simoni (1981) 147 CLR 383."
25. 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. 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. 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. 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. 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: "It is worth making some observations on the nature of the charges. The serious indictable offence in each of the s 112(2) offences was stealing. The matter of aggravation relied upon in Counts 1 and 2 was that the applicant knew that persons were present in the premises where the offences were committed; see s 105A(1)(f) of the Crimes Act. In respect of Count 5 the matter of aggravation charged was that the applicant deprived Ms Simmonds of her liberty: see s 105A(e). However, the Crown made it clear on sentencing that it was also relying in respect of Count 5 upon the presence of two other aggravating features, although not charged, being that the applicant knew that there was a person present in the premises and that he was armed with an offensive weapon: see s 105A(a). It has been held that the Crown is entitled to rely upon other factors in aggravation in addition to that charged: R v Li (NSWCCA, unreported, 9 July 1997)."
30. 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. 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. His Honour said, when making findings of fact regarding count 2: "Both offenders wore a top with a hood and each had what Mr Dung described as handguns being greyish black in colour. Count 1 on the indictment of which the jury found the offenders not guilty alleged the offenders were armed with a dangerous weapon, namely, an imitation firearm. Whilst I find the offender each had an object Mr Dung thought looked like handguns, I am not satisfied beyond reasonable doubt that the objects were imitation firearms and hence dangerous weapons - they could have been toys."
33. When considering the objective seriousness of count 2, his Honour said: "The intimidation of the victim once the offenders had forcibly made their way into the house was considerable. It involved not just words but the use of violence by pushing him into a bedroom. It also involved the victim not only being confronted by two sizeable offenders but each carried an object which the victim thought looked like handguns. Whilst I agree with the submission of Mr Smith, adopted by Mr Buckman, that the verdict of not guilty of count 1 means the jury were not satisfied that the offender or an offender was armed with an imitation pistol, this does not exclude them having a children's toy …"
34. 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. Hoang Dung Nguy's evidence in chief was, relevantly, as follows: "Q. Were they carrying anything? A. INTERPRETER: Yes, they were carrying guns. Q. What did the guns look like? A. INTERPRETER: I just saw that they were guns, hand guns and I don't know what type of gun. Q. Hand guns, did you say? A. WITNESS: Yeah. Q. How many guns did you see? A. INTERPRETER: At the time it appears to be two guns. Q. Who was carrying the guns, one each was it? A. WITNESS: Yes. Q. You said it was a hand gun, do you know what colour it was? A. INTERPRETER: I saw them black - no, it was greyish black in colour."
36. 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. Mustapha Daher, another Crown witness, said that, at about 6 or 7pm on 7 May 2017 the following happened: "I was inside my house, I heard a loud bang, and then I walked outside to see what it is, then I see this lady going through this block of units running up and down, and then this man comes running towards my house with a bleeding mouth, and tell me his house is getting robbed. And I did see two people before that walking into the house, they looked like just normal visitors. Then, out of nowhere, the guy comes running to me saying, 'My house is being robbed.' The guys walked out, I remember them jumping into their, into this car, it was a red car, and then when the guy who told me the house is getting robbed, we walked down to see, like, what was happening. Then someone yelled out that they've got a gun, and then we've, I jumped into my car, was following them, but they went too quick, they turned right, and that's it. I've got no vision of them anymore." [Emphasis added.]
38. In the Crown's final address, the Crown emphasised the process of coincidence reasoning, relevantly as follows: "So we say that those common features, the striking similarities between the two dates it's so significant that it's improbably, highly improbable that this was a coincidence. And that [sic] improbabilities may lead you to conclude that both accused are responsible for 7 May and 12 May, and we know they were there on the 12th so we use this evidence to say they were also there on the 7th. … So what happened when they got there? Well, we know they attended on foot once they've left the vehicle. We know they walked up the driveway together. We know on both occasions that both accused, we say, went to the front door and then they both went together around to the back. We know on both occasions that there was noise being made outside the premises by these men that were coming. We know on both occasions they were trying to gain entry into the premises. We know what the men looked like, they were wearing hooded jumpers on 7th and 12th. Pacific Island on the 7th and on the 12th. Tall and short, descriptions given by everyone on 7th and 12th. Slimmer. The taller man was slimmer, the shorter man was chubbier on 7th and on 12th. Handguns on the 7th and on the 12th, and people were home on both occasions inside the house on 7th and 12th." [Emphasis added.]
39. The Crown addressed as follows on the circumstances of aggravation with respect to count 1: "Here the Crown says that the people that came into the house were armed with a dangerous weapon, and you know that a dangerous weapon means a firearm, or an imitation firearm. Here, on 7 May, we don't know what the firearms were. We do know this from the evidence that Hoang said he saw handguns, 'Each man had one,' this is at p 5. There appeared to be two guns, and they were black and greyish in colour, and he used the word when I asked him to describe it, he described them as handguns. So, that's the element in relation to dangerous weapon."
40. 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: "They have to prove either (1) that it's not produced as a children's toy; (2) it's not identified as a children's toy; (3) it's a toy rather than a children's toy."
41. 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: "So the sixth essential element is, 'At the time of the offence, the accused was armed with a dangerous weapon' and the 'dangerous weapon' asserted by the Crown is an imitation firearm. An 'imitation firearm' means an object - and I am reading from the top of p 3 - that regardless of its colour, weight or composition or the presence or absence of any moveable parts, substantially duplicates an appearance of a firearm but that is not a firearm. However, an imitation firearm does not include any such object that is produced and identified as a children's toy."
42. His Honour continued: "Now, the Crown relies on the evidence of Mr Dung Nguy that each intruder on 7 May had what appeared to him to be handguns, black and greyish in colour as he described it. We do have the benefit of the police locating the object on 12 May but we do not have the benefit of any object from 7 May. The Crown submission is that if you found the intruders on 7 May were the same men as the accused who came to the property on 12 May, you can infer the objects they had on 7 May were the same as the object found by the police on 12 May. And that is the way the Crown approaches it. In other words, the Crown submits the only rational or reasonable conclusion that you could reach, having regard to what she would invite you to conclude are the same men on both occasions, and secondly carrying a very similar object on both occasions, is that the object on 7 May was an imitation firearm."
43. 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: "In this case, the Crown says that provided you are satisfied that the accused were at the premises on 12 May and did those acts on 12 May asserted by the Crown, including, for example, Mr Siola'a having an object Mr To thought was a gun, then those acts and the circumstances in which they were done were so similar to the acts alleged on 7 May that you would conclude beyond reasonable doubt that the accused must have been the intruders on 7 May and committed the offences with which they have been charged."
44. 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. 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: "1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury … 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings … 3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury … 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender … "
46. 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. 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. The orders which I propose with respect to the applications for leave to appeal against sentence are, in each matter: 1. Grant leave to appeal. 2. Appeal dismissed.

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