Cassar v The Queen - [2013] NSWCCA 147

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cassar v R [2013] NSWCCA 147
Hearing dates: 21 February 2013
Decision date: 27 June 2013
Before: Bathurst CJ at [1]
Hidden J at [2]
Button J at [9]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - whether discount given for assistance insufficient - finding of value of assistance as low - subsequent sentence proceedings - different evaluation of value of assistance - whether post sentence events relevant to evaluation of value of assistance - no error - appeal dismissed
Legislation Cited: Australian Passports Act 2005 (Cth)
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985
Passports Act 1938 (Cth)
Cases Cited: JM v R [2008] NSWCCA 254
R v Bailey (1988) 35 A Crim R 458
R v Munday [1981] 2 NSWLR 177
R v Smith (1987) 27 A Crim R 375
Category: Principal judgment
Parties: Charles Michael Cassar (applicant)
Regina (respondent)
Representation: Counsel:
T Watts (applicant)
P Ingram SC (respondent)
Solicitors:
Burston Cole & Associates (applicant)
Solicitor for Public Prosecutions

File Number(s): 2008/19272
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-04-16 00:00:00

Before:

Ainslie-Wallace DCJ

File Number(s):

2008/19272

Judgment

BATHURST CJ: I agree with the orders proposed by Button J and with his Honour's reasons.

HIDDEN J: I agree with Button J that the combined discount of 35% for the applicant's plea of guilty and assistance to the authorities was open to Judge Ainslie-Wallace, on the material before her.

JM v R was a special case. There was evidence of assistance to authorities by that applicant, including a confidential document, exhibit B. Among other things, it disclosed that he had undertaken to give evidence against several people, including the person referred to by Simpson J as "X."

Counsel for the applicant in the sentence proceedings had expressed the view that his prospect of doing so was "remote." However, exhibit B envisaged that those people might be prosecuted, and its author noted that the information the applicant had given about X was such as might have opened up a previously unlikely prospect of his being prosecuted: see the judgment of Simpson J at [16] - [20].

After sentence was passed on that applicant X was charged, and a statement by the applicant was part of the brief against him. In the event, X pleaded guilty. This was the fresh evidence relied upon.

What Simpson J found was that, even on the evidence before the sentencing judge, the significance of the applicant's undertaking to give evidence against others, including X, was underestimated, a fact which became more evident in the light of what occurred after sentence was passed. At [30] her Honour referred to the willingness of the applicant to give evidence against X and another man, and at [31] her Honour concluded:

"There was no basis in the evidence for counsel for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cassar v The Queen

Details

AGLC: Cassar v The Queen [2013] NSWCCA 147
Case: [2013] NSWCCA 147
Decision Date: 27 June 2013

CaseChat Overview and Summary

The case of Cassar v The Queen involved the defendant, Cassar, who was convicted of a serious criminal offence and subsequently appealed against his sentence on the basis of insufficient discount for his assistance. The matter was heard and dismissed by the High Court of Australia. The central issue before the court was whether the trial judge's assessment of the value of Cassar's assistance was erroneous and whether post-sentencing events could influence the evaluation of the assistance provided. The High Court had to determine if the trial judge erred in considering the value of the assistance provided by Cassar, and if so, whether this warranted a departure from the usual principle that post-sentencing events are irrelevant to the evaluation of the assistance.

In delivering the judgment, the court emphasised the importance of assessing the value of assistance at the time of sentencing, rather than post-sentencing events. The court found that the trial judge had appropriately evaluated the assistance provided by Cassar during the sentencing process and had correctly determined the discount to be applied. The High Court held that the trial judge's assessment of the assistance provided by Cassar was not erroneous, and that post-sentencing events were irrelevant to the evaluation of the assistance provided. Consequently, the appeal against the sentence was dismissed, and the original sentence was upheld.

The High Court's decision in this case reinforces the principle that the evaluation of a defendant's assistance should be based on the information and circumstances available at the time of sentencing. Post-sentencing events should not be taken into account when determining the value of the assistance provided. Furthermore, the court's judgment highlights the importance of ensuring that the sentencing process is fair and just, taking into account all relevant factors, including the assistance provided by the defendant. The appeal was dismissed, and the original sentence was upheld.

Orders