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Court of Criminal Appeal 14 October 2020

Taufa v R; Siola’a v R

[2020] NSWCCA 264

Assault & violenceTheft & propertyFirearms & weapons
CRIME APPEALS APPEAL AGAINST CONVICTION CRIMES ACT 1900 S 113(3) WHERE NO MISCARRIAGE OF JUSTICE CRIME APPEALS

Citation: Taufa v R; Siola'a v R [2020] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 14 October 2020
Judge(s): Hoeben CJ at CL; Davies J; Adamson J

Background

Two co-appellants were convicted following a jury trial before Judge Arnott SC in October 2018. The charges arose from two separate incidents at the same residential address in Cabramatta in May 2017. During both incidents, the appellants entered or attempted to enter the premises while carrying objects that witnesses described as handguns, and they made demands for money from the occupants.

The jury acquitted both appellants on the specially aggravated break and enter charge (Count 1) and on assault occasioning actual bodily harm in company (Count 3). They were convicted on three counts each: aggravated break and enter with intent to commit a serious indictable offence (Count 2), larceny (Count 4), and attempted specially aggravated break and enter with intent to commit a serious indictable offence (Count 6). The sentencing judge imposed aggregate sentences of five years and nine months for one appellant and six years and three months for the other.

Both appellants appealed against their convictions and sentences on identical grounds, challenging the form of the indictment on Count 6, the trial judge's directions to the jury, and the sentencing judge's approach to factual findings and the application of the principle in R v De Simoni.

  • Whether the conviction on Count 6 should be quashed because the indictment was defective for failing to expressly identify the circumstance of special aggravation (being armed with a dangerous weapon) as a distinct element of the offence under s 113(3) of the Crimes Act 1900.
  • Whether the trial judge misdirected the jury by failing to direct them that s 113(3) required proof of an offence committed in "circumstances of aggravation," and by failing to explain those terms.
  • Whether the sentencing judge erred by making a factual finding (that the appellants possessed a toy gun) that was inconsistent with the jury's verdict of acquittal on Count 1.
  • Whether the sentencing judge breached the principle in R v De Simoni by taking into account a circumstance of aggravation not charged in the indictment.

Decision

Conviction appeal (Davies J, Hoeben CJ at CL agreeing)

On the defective indictment ground, the Court found that while the indictment did not explicitly plead the "circumstances of aggravation" as a separate element, the element was necessarily implied by the pleading of the special aggravation. The jury's verdict cured any defect in the indictment, as the jury must have been satisfied of all necessary elements to return a guilty verdict on Count 6. No miscarriage of justice resulted.

On the misdirection ground, the Court found that the trial judge's directions adequately covered the elements of the offence in substance, even if they did not precisely mirror the statutory language. Because the alleged deficiency in the directions flowed from the form of the indictment rather than any independent error, and because the jury's verdict demonstrated it understood what was required, no relevant error was established.

Sentence appeal (Adamson J, Hoeben CJ at CL agreeing)

The Court rejected the argument that the sentencing judge's finding that the appellants carried a children's toy gun was inconsistent with the jury's acquittal on Count 1. The acquittal meant only that the jury was not satisfied the appellants possessed an imitation firearm to the required standard. The sentencing judge remained entitled to find, on the evidence at trial and beyond reasonable doubt, that the appellants carried something that looked like a gun. The most favourable finding consistent with both the evidence and the verdict was that the object was a toy gun.

On the De Simoni ground, the Court found no breach. The sentencing judge did not sentence on the basis of a more serious offence for which the appellants were not convicted. Rather, the judge made a factual finding that was consistent with the jury's verdict and grounded in the trial evidence. Leave to appeal against sentence was granted in each matter, but the appeals were dismissed.

Orders Made

In each matter (Taufa and Siola'a):

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A defect in an indictment that omits express reference to a circumstance of aggravation will not automatically vitiate a conviction where that element is necessarily implied by the pleading of another element and the jury's verdict demonstrates satisfaction of all required elements.
  • The Court of Criminal Appeal confirmed that a jury's verdict can cure a formal defect in an indictment, provided no miscarriage of justice resulted from the deficiency.
  • Under the De Simoni principle, a sentencing court is prohibited from making findings that effectively sentence an offender for a more serious offence of which they were not convicted, but it is not required to disregard evidence led at trial simply because an acquittal was returned on a related count.
  • Where a jury acquits on a count requiring proof of a specific type of weapon, the sentencing court remains free to find, beyond reasonable doubt and on the trial evidence, that the offender carried an object consistent with the acquittal but still relevant to the objective seriousness of the offending.
  • No error was established in the sentencing judge's approach to finding that the appellants carried toy guns: that finding represented the most favourable view of the facts consistent with both the jury's verdict and the evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 59, 61, 97, 105A, 112, 113, 115A, 117, 195, 344A
- Criminal Appeal Act 1912 (NSW), s 7
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), ss 11, 16, 17, 166
- Firearms Act 1996 (NSW), s 4D

Cases
- R v De Simoni (1981) 147 CLR 383 (the foundational authority on sentencing beyond the verdict)
- Cheung v The Queen (2001) 209 CLR 1
- R v Isaacs (1997) 41 NSWLR 374
- Doja v R [2009] NSWCCA 303
- Firbank v R [2011] NSWCCA 171
- Marshall v R [2007] NSWCCA 24
- MM v R [2016] NSWCCA 235; [2018] NSWCCA 158
- Tonari v R [2013] NSWCCA 232
- TH v R [2019] NSWCCA 184
- Regina v Bennett [2014] NSWCCA 197
- R v O'Donoghue [2005] NSWCCA 62
- Heymann v The Queen (1873) LR 8 QB 102