Where a trial judge leaves to the jury a basis for conviction not relied upon by the Crown, the proviso may still apply if the appellate court is satisfied beyond reasonable doubt of guilt on the whole record, provided the error does not amount to a significant denial of procedural fairness. Where an offender is convicted of both murder and an included offence of armed robbery, the sentence for the included offence must not take into account any element that was fundamental to the murder charge, including that the weapon was loaded or discharged. The effects of voluntary drug ingestion do not necessarily constitute a 'disability' under s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999.
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