R v Tanswell; R v Leilua - [2025] NSWDC 178

District Court

New South Wales

Medium Neutral Citation: R v Tanswell; R v Leilua [2025] NSWDC 178
Hearing dates: 26 September and 20 December 2024
Decision date: 19 May 2025
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
For Mr Tanswell: Incidents 1 to 5 - aggregate term of imprisonment of 6 years 8 months - no special circumstances - non-parole period of 5 years.
For Mr Leilua - Incidents 1 to 5 - aggregate term of imprisonment of 6 years 2 months - special circumstances - non parole period of 4 years - s166 Certificate offence - conviction entered but no other penalty.

Catchwords:
CRIMINAL - SENTENCE - robbery in company - dishonestly obtain a financial advantage by deception - expert witnesses - non compliance the Expert Code of Conduct - consequences - Parity - Special circumstances.

Legislation Cited:
Crimes Act 1900 (NSW): ss97(1), 192E(1)(b); Firearms Act 1996 (NSW): S65(3); Court Suppression and Non Publication Act 2010 (NSW): s8(a), (d) and (e); Crimes (Sentencing Procedure) Act 1999 (NSW): s10A; Uniform Civil Procedure Rules 2005 (NSW): schedule 7.

Cases Cited:
R v Henry (1999) 46 NSWLR; Vakauta v Kelly (1989)167 CLR 568; R v Fitzroy (a pseudonym) [2020] NSWDC 218); R v Kaplantzi [2023] NSWDC 42; R v Bojcevski; Birkic; Drenovac [2024] NSWDC 299; R v Al-Mansoori [2024] NSWDC 466; Bugmy v The Queen [2013] HCA 37; DPP (Cth) v De La Rosa [2010] NSWCCA 194; R v GWM [2012] NSWCCA 240; Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279; Roads and Traffic Authority (NSW) v Barrie Toepfer Earthmoving Land Management Pty Ltd (No 3) [2012] NSWSC 937; Bechara v DPP, unreported, 14 May 2025 matter No: 2024/00274154

Category: Sentence
Parties:
Rex (Crown)

Andrew James Tanswell (Offender)
George Phoenix Leilua (Offender)
Representation:
Ms Marquard -Karp (ODPP Parramatta)

Mr Eurell (Counsel for Mr Tanswell)
Mr Cassells (Counsel for Mr Leilua)

File Number(s): 2023/00193383; 2023/00193393
Publication restriction: Non-publication order of the name of each of the five victims and any other matter which might identify any of them, directly or indirectly

judgment

Andrew James Tanswell and George Phoenix Leilua, you both appear for sentence in relation to five principal offences of robbery in company which you committed together in the period 29 May 2023 to 15 June 2023 inclusive and which arose from five discrete incidents. Each of those incidents involved a different victim.
On the Court’s own initiative, and pursuant to s8(a), (d) and (e) of the Court Suppression and Non-Publication Act 2010 (NSW), I make a non-publication order of the name of each of those five victims and any other matter which might identify any of them, directly or indirectly.
Each of those five principal offences involved a contravention of s97(1) of the Crimes Act 1900 (NSW).
The maximum penalty for each principal offence is 20 years imprisonment. There is no standard non-parole period. There is, however, a relevant guideline judgment: R v…

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.

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Details

Case: [2025] NSWDC 178
Decision Date: 19 May 2025

CaseChat Overview and Summary

In the matter of the Crown versus Tanswell and Leilua, the court was tasked with determining the appropriate sentences for the defendants, who were found guilty of various charges including robbery in company and obtaining a financial advantage by deception. The case was heard in the Supreme Court of New South Wales. The defendants were convicted of multiple incidents of theft and deception, and the court was required to decide on the appropriate aggregate sentences and non-parole periods for each defendant.

The primary legal issue before the court was the extent to which expert witnesses, who had provided evidence during the trial, had complied with the Expert Code of Conduct. The court considered the impact of the experts' non-compliance on the sentencing process and whether it warranted any special considerations. Additionally, the court needed to determine if there were any special circumstances present in the case that would affect the sentencing of the defendants, and whether parity in sentencing between the two defendants was necessary.

In reaching its decision, the court considered the Expert Code of Conduct and the consequences of its non-compliance, which included the potential for the expert evidence to be given less weight. The court also examined the individual circumstances of each defendant, including their criminal history and the nature of their involvement in the offences. The court found that Mr Tanswell did not have any special circumstances, while Mr Leilua did have special circumstances, including the fact that one of the offences was a s166 Certificate offence. Consequently, the court imposed a sentence of 6 years and 8 months for Mr Tanswell, with a non-parole period of 5 years, and a sentence of 6 years and 2 months for Mr Leilua, with a non-parole period of 4 years, and a conviction entered for the s166 Certificate offence with no other penalty.

Orders

Orders of the court

For Mr Tanswell: Incidents 1 to 5 - aggregate term of imprisonment of 6 years 8 months - no special circumstances - non-parole period of 5 years.

For Mr Leilua - Incidents 1 to 5 - aggregate term of imprisonment of 6 years 2 months - special circumstances - non parole period of 4 years - s166 Certificate offence - conviction entered but no other penalty.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Tanswell; R v Leilua [2025] NSWDC 178
Hearing dates:	26 September and 20 December 2024
Decision date:	19 May 2025
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	For Mr Tanswell: Incidents 1 to 5 - aggregate term of imprisonment of 6 years 8 months - no special circumstances - non-parole period of 5 years. For Mr Leilua - Incidents 1 to 5 - aggregate term of imprisonment of 6 years 2 months - special circumstances - non parole period of 4 years - s166 Certificate offence - conviction entered but no other penalty.
Catchwords:	CRIMINAL - SENTENCE - robbery in company - dishonestly obtain a financial advantage by deception - expert witnesses - non compliance the Expert Code of Conduct - consequences - Parity - Special circumstances.
Legislation Cited:	Crimes Act 1900 (NSW): ss97(1), 192E(1)(b); Firearms Act 1996 (NSW): S65(3); Court Suppression and Non Publication Act 2010 (NSW): s8(a), (d) and (e); Crimes (Sentencing Procedure) Act 1999 (NSW): s10A; Uniform Civil Procedure Rules 2005 (NSW): schedule 7.
Cases Cited:	R v Henry (1999) 46 NSWLR; Vakauta v Kelly (1989)167 CLR 568; R v Fitzroy (a pseudonym) [2020] NSWDC 218); R v Kaplantzi [2023] NSWDC 42; R v Bojcevski; Birkic; Drenovac [2024] NSWDC 299; R v Al-Mansoori [2024] NSWDC 466; Bugmy v The Queen [2013] HCA 37; DPP (Cth) v De La Rosa [2010] NSWCCA 194; R v GWM [2012] NSWCCA 240; Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279; Roads and Traffic Authority (NSW) v Barrie Toepfer Earthmoving Land Management Pty Ltd (No 3) [2012] NSWSC 937; Bechara v DPP, unreported, 14 May 2025 matter No: 2024/00274154
Category:	Sentence
Parties:	Rex (Crown) Andrew James Tanswell (Offender) George Phoenix Leilua (Offender)
Representation:	Ms Marquard -Karp (ODPP Parramatta) Mr Eurell (Counsel for Mr Tanswell) Mr Cassells (Counsel for Mr Leilua)
File Number(s):	2023/00193383; 2023/00193393
Publication restriction:	Non-publication order of the name of each of the five victims and any other matter which might identify any of them, directly or indirectly