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Court of Criminal Appeal 16 May 2022

Vassiliou v R

[2022] NSWCCA 91

Fraud & dishonestyTheft & propertyFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE DISCOUNT FOR ASSISTANCE WHERE ANOTHER OFFENDER INVOLVED WHERE ALLEGED CO

Citation: Vassiliou v R [2022] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 16 May 2022
Judges: Harrison, Davies and Hallen JJ

Background

The appellant pleaded guilty in the District Court to robbery in company and possession of an unauthorised prohibited firearm, with two further offences taken into account on a Form 1 (possession of ammunition and dishonestly obtaining a financial advantage by deception). The robbery involved the appellant and his 16-year-old sister luring an 18-year-old complainant to a park using a deceptive social media approach, after which the appellant and another person physically attacked the complainant and stole his phones, wallet and cash. The appellant then used the complainant's bank card at a nearby 7-Eleven to purchase cigarettes.

Judge Wilson SC sentenced the appellant to a non-parole period commencing 3 December 2020, expiring 2 August 2022, with a balance of term expiring 19 September 2023. A community correction order was imposed for the firearms offence. The appellant sought leave to appeal against the sentence, raising grounds concerning the sentencing judge's treatment of his assistance to authorities and the principle of parity with his co-offending sister.

The appellant's sister, who was 16 at the time of the offending, was dealt with separately in the Children's Court. The appellant had provided information to authorities identifying a co-offender known as "Dyllen," who was not ultimately prosecuted.

  • Whether the sentencing judge erred by failing to consider all matters listed in s 23(2) of the Crimes (Sentencing Procedure) Act 1999 when assessing the value of the appellant's assistance to authorities.
  • Whether the 5% discount granted for that assistance was within the available range.
  • Whether the disparity between the appellant's sentence and that imposed on his co-offending sister in the Children's Court gave rise to a justifiable sense of grievance (the parity ground).

Decision

Assistance to authorities (Grounds 1 and 2): Section 23(2) of the Crimes (Sentencing Procedure) Act 1999 sets out matters a court must consider when assessing the value of an offender's assistance, including the significance and usefulness of the information, whether it was truthful, and the nature and extent of the assistance. The appellant argued that the sentencing judge had failed to address all of these matters and had therefore applied too low a discount. The Court of Criminal Appeal rejected both grounds, finding that the sentencing judge had adequately engaged with the relevant considerations. Because the identified co-offender was not prosecuted, the practical utility of the assistance was limited, and a discount of 5% was open on the material before the judge.

Parity (Grounds 3 and 4): The appellant abandoned Ground 3 before the hearing. On Ground 4, the Court noted that parity had not been raised at all before the sentencing judge, and applied the principle, drawn from Zreika v R, that the Court of Criminal Appeal is not the occasion for reformulating arguments that could and should have been advanced below. No reason was offered for why the point had not been raised at first instance.

Even setting that procedural obstacle aside, the Court found no justifiable sense of grievance when the objective differences between the two offenders were considered. The appellant's sister was 16, had no prior record, had serious mental health difficulties and was described as having been easily led. The appellant, by contrast, was 20 years old at the time of the offending, had a prior criminal record, and was subject to a conditional release order that was in force when the offences were committed. He also played the dominant physical role in the robbery and made the demand for the complainant's property. The Court rejected this ground accordingly.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A discount of 5% for assistance to authorities was upheld where the co-offender identified by the informant was not prosecuted, significantly limiting the practical value of that assistance.
  • Under s 23(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must consider the prescribed list of factors when assessing the value of an offender's cooperation, but a failure to enumerate each factor exhaustively does not constitute error if the substance of those matters was addressed.
  • The Court of Criminal Appeal confirmed that it will not readily entertain parity arguments raised for the first time on appeal where no reason is given for the omission below, consistent with the approach in Zreika v R.
  • Significant objective differences between co-offenders, including age, criminal history, mental health, relative culpability and the nature of participation in the offending, can justify what would otherwise appear to be disparate sentences.
  • In dismissing the appeal, the Court reinforced that the parity principle is assessed by objective criteria and does not turn on the subjective feelings of the offender alleging grievance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 97, 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 23
- Firearms Act 1996 (NSW) ss 4, 4D, 7, 65
- Children (Criminal Proceedings) Act 1987 (NSW) s 15A

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Greentree v R [2018] NSWCCA 227
- Hraiki v R [2019] NSWCCA 140
- Hutchinson v R [2014] NSWCCA 317
- Jones v R [2021] NSWCCA 106
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460