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Court of Criminal Appeal 15 December 2022

Vaiusu v R

[2022] NSWCCA 283

DrugsFraud & dishonestyFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE POSSESSION OF FIREARMS SUPPLY OF DRUGS PROCEEDS OF CRIME

Citation: Vaiusu v R [2022] NSWCCA 283
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2022
Judges: Kirk JA, Button J, Dhanji J (Dhanji J delivered the principal judgment; Kirk JA and Button J agreed)

Background

The appellant pleaded guilty in the District Court to five offences arising from items found in a storage unit when police executed a search warrant in May 2018. The unit contained 13 firearms, a large quantity of ammunition, over one kilogram each of cocaine and methylamphetamine, approximately 29.5 kilograms of GHB, and more than $2.5 million in cash. The unit had been paid for by the appellant and was regularly attended by him over several months.

Before pleading guilty, the appellant sought a permanent stay of proceedings on the basis that the prosecution was an abuse of process. He argued he had possessed the items solely for the purpose of surrendering them to police, in exchange for favourable treatment for his brother who was in custody at the time, and that the search warrant had intervened before any surrender could occur. The stay was refused.

The appellant was sentenced to an aggregate term of 10 years' imprisonment with a non-parole period of 7 years. He then sought leave to appeal against that sentence on four grounds.

  • Whether the appellant's offer to hand over the firearms and other items constituted an "undertaking to assist" under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), entitling him to a reduction in sentence.
  • Whether the sentencing judge was required to treat the appellant's purported intention to surrender the items as mitigating the objective gravity of the relevant offences.
  • Whether the sentencing judge erred by failing to separately identify and quantify a discount for the appellant's post-arrest assistance (disclosure of the location of three additional firearms), as required by s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the sentencing judge erred by treating the appellant's knowledge that his possession was unlawful as increasing the objective seriousness of the firearms offence.

Decision

Ground 1 (undertaking to assist before arrest): The Court left open whether a one-sided offer, not taken up by police, could in principle constitute an "undertaking to assist" under s 23. However, the Court found it unnecessary to resolve that question, because on the facts no relevant undertaking existed in any event. The evidence showed that any proposed surrender was expressly contingent on the negotiations being resolved to the appellant's satisfaction. While an undertaking need not amount to a bilateral agreement, in this case the appellant had made any surrender conditional on first reaching an agreement, which fell short of an undertaking.

Ground 2 (objective gravity of possession): The Court found that the items had originally been acquired and possessed for criminal purposes. Even accepting that the appellant's motivation may have later shifted, the evidence did not support a finding that he possessed the items for the purpose of surrendering them at the time they were seized. The negotiations did not obligate the sentencing judge to find the seriousness of the possession was mitigated.

Ground 3 (post-arrest assistance regarding three firearms): This ground succeeded. After his arrest, the appellant disclosed the location of a vehicle containing three firearms, which police then seized. The sentencing judge made no mention of this in his sentencing remarks and, when asked by counsel immediately afterwards, indicated only that he had taken it into account. The Court held that s 23(4) required the judge to state the penalty that would otherwise have been imposed, making transparent the actual discount applied. The failure to do so meant it could not be determined whether the judge's discretion had been properly exercised, and this constituted a reviewable error.

Ground 4 (knowledge of illegality): The Court dismissed this ground. The sentencing judge had not found the offence to be "aggravated" in the technical sense of elevating it above the ordinary case. Rather, the judge found the offending to be more serious in relative terms because the appellant knew his conduct was unlawful. The Court found this reasoning unexceptionable.

Resentencing: Although ground 3 succeeded, the Court proceeded to resentence and applied a 15% discount to reflect both the guilty pleas and the post-arrest assistance. After applying totality principles, the Court concluded that the resulting sentence was not less than that imposed by the sentencing judge. Accordingly, no lesser sentence was warranted and the appeal was dismissed.

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • An "undertaking to assist" under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not necessarily require a concluded bilateral agreement, but a conditional offer made contingent on a favourable negotiated outcome does not satisfy the provision.
  • Where a sentencing court gives a discount for assistance to authorities under s 23, it must explicitly state the penalty that would otherwise have been imposed, so that the quantum of the discount is transparent. A bare oral indication that the matter was "taken into account" is insufficient.
  • In dismissing grounds 1 and 2, the Court confirmed that a change in motivation for possessing prohibited items is a potentially relevant factor, but the evidence must actually support a finding that the purpose of possession had shifted before it can mitigate objective seriousness.
  • Under ss 5(1)(a) and 6(3) of the Criminal Appeal Act 1912 (NSW), non-compliance with s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not jurisdictional error (by operation of s 23(6)), but it can still constitute error sufficient to ground an appeal.
  • Even where appellate error is established, resentencing may produce no lesser sentence. Here, a 15% combined discount for guilty pleas and post-arrest assistance, assessed with totality in mind, did not improve on the original sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 23(4), 23(6)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(c), 6(3)
- Firearms Act 1996 (NSW), s 51D(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), ss 193B(2), 193B(4)
- Crimes Act 1914 (Cth), ss 16A, 21E

Cases:
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- CC v R; R v CC (2021) 289 A Crim R 453; [2021] NSWCCA 71
- Regina v Stavropoulos [2007] NSWCCA 333
- De Campos v Regina [2006] NSWCCA 51
- R v Gallagher (1991) 23 NSWLR 220
- R v Cartwright (1989) 17 NSWLR 243
- Sumrein v R [2019] NSWCCA 83
- Taylor v R [2018] NSWCCA 50
- Basedow v R [2010] NSWCCA 76
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Lehn v R (2016) 93 NSWLR 205