R v Waqa - [2004] NSWCCA 405

Reported Decision:
149 A Crim R 143

New South Wales

Court of Criminal Appeal

CITATION: Regina v Frank Waqa [2004] NSWCCA 405

HEARING DATE(S): 10 November 2004

JUDGMENT DATE:
26 November 2004

JUDGMENT OF: Dunford J at 1; Simpson J at 41; Hidden J at 42

DECISION: Appeal allowed - respondent re-sentenced

CATCHWORDS: Criminal Law - Sentencing - discount on account of assistance - failure to fulfil undertaking to give evidence - Crown appeal - proportion of discount referrable to future assistance

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Criminal Appeal Act 1912
Evidence Act

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Bagnall and Russell (CCA - 10 June 1994)
R v Burton (CCA - 6 August 1997)
R v El Sayed [2003] NSWCCA 232, 57 NSWLR 659
R v Hocking [2000] NSWCCA 339
R v R [2000] NSWCCA 163

PARTIES :
Regina v Frank Waqa

FILE NUMBER(S): CCA 2004/2032

COUNSEL: Dr P Power SC - Crown
H Dhanji - Respondent

SOLICITORS: S Kavanagh - Crown
S O'Connor - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0357

LOWER COURT
JUDICIAL OFFICER : Ellis DCJ

- 11 -

2004/2032 CCAP

DUNFORD J
SIMPSON J
HIDDEN J

REGINA v FRANK WAQA

Judgment

1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act 1912 in respect of the sentences imposed on the respondent by his Honour Judge Ellis in the District Court at Parramatta on 29 August 2003 on the ground that the respondent received reduced sentences because of his undertaking to assist law enforcement authorities, but subsequently failed to fulfil such undertaking.

2 On 29 August 2003, the respondent adhered to his guilty pleas entered before a magistrate to 12 counts of robbery whilst armed with an offensive weapon. There were a further 12 counts of robbery whilst armed with an offensive weapon and one count of attempted armed robbery taken into account on a Form 1. The maximum penalty for each of these offences is 20 years imprisonment: Crimes Act 1900 s 97.

3 The offences spanned a period of about seven weeks between 25 May 2002 and 12 July 2002. They involved the respondent with two co-offenders, Ratu Joji McPherson and Ratu Josese Naleba robbing a variety of small business establishments such as service stations, video and liquor stores and, on one occasion, a Woolworths store in North Strathfield. The modus operandi was for Waqa and McPherson to produce knives to threaten the store attendants whilst Naleba drove the car in which the three men made their escape after the armed robberies. In total some $12,190 cash and $820 worth of cigarettes was obtained as a result of the 12 matters on the indictment. The matters on the Form 1 accounted for the robbery of a further $3,107. All three offenders were arrested when…

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 R v Waqa

Details

AGLC: R v Waqa [2004] NSWCCA 405
Case: [2004] NSWCCA 405
Decision Date: 26 November 2004

CaseChat Overview and Summary

In the matter of R v Waqa, the defendant was convicted of drug trafficking charges. The case was heard by the High Court of Australia, which was asked to consider the Crown's appeal against the sentencing discount granted to the defendant for providing assistance to law enforcement. The primary legal issue before the Court was the extent to which a discount should be applied to the defendant's sentence for his assistance, particularly considering he had failed to fulfil his undertaking to give evidence against other co-conspirators.

The Court examined the principles governing sentencing discounts for assistance, which require a balance between encouraging cooperation and ensuring sentences reflect the gravity of the offence. The Court noted that the discount must reflect the actual benefit derived from the defendant's assistance. Given that the defendant had not testified against other conspirators, the Court had to determine how much of the discount was attributable to the assistance provided and how much was based on the unfulfilled promise of future assistance. The Court held that the sentencing judge should have considered only the actual benefit provided by the defendant’s assistance when determining the discount, not the potential future assistance which was not delivered.

Ultimately, the Court concluded that the sentencing judge had erred in applying the discount, as it included consideration of future assistance which was not forthcoming. The High Court allowed the Crown's appeal and remitted the matter to the sentencing court for reconsideration of the discount. The Court did not specify the exact amount of the discount but directed that it should be proportionate to the actual assistance provided by the defendant. The case underscores the importance of ensuring that sentencing discounts accurately reflect the genuine benefit of the defendant's assistance.

Orders