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Vaiusu v The The King

Vaiusu v The The King

Case [2022] NSWCCA 283 15 December 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Vaiusu v R [2022] NSWCCA 283
Hearing dates: 12 August 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Before: Kirk JA at [1]
Button J at [14]
Dhanji J at [15]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – possession of firearms – supply of drugs – proceeds of crime – offer to surrender firearms in exchange for favourable treatment to brother – purchased after receiving “bags and boxes of cash” – search warrant executed in meantime – undertaking to assist – undertaking contingent on agreement with police – purpose of possession – objective gravity – failure to quantify the reduction in penalty for assistance to authorities – finding that knowledge of illegality increased objective seriousness – resentence – no lesser penalty warranted – appeal dismissed
CRIME – appeals – appeal against sentence – nature of review for error in an appeal about sentencing pursuant to ss 5(1)(a) and 6(3) of the Criminal Appeal Act 1912 (NSW) – error need not be jurisdictional – effect of s 23(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) Act – requisite significance of error to demonstrate miscarriage of discretion
WORDS AND PHRASES – “undertaking to assist”

Legislation Cited:
Crimes Act 1900 (NSW), ss 193B(2), 193B(4)
Crimes Act 1914 (Cth), Part IB, ss 16A, 21E
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(4), 10A, 22(4), 23, 44(3), 45(4), 48(3), 50(3), 54B(7), 54C(2), 100B(2), 101A
Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(c), 5DA, 6(3)
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Firearms Act 1996 (NSW), s 51D(2)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases Cited:
Basedow v R [2010] NSWCCA 76
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CC v R; R v CC (2021) 289 A Crim R 453; [2021] NSWCCA 71
De Campos v Regina [2006] NSWCCA 51
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ibbotson (apseudonym) v R [2020] NSWCCA 92
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v Cartwright (1989) 17 NSWLR 243
R v Fernando (1992) 76 A Crim R 58
R v Gallagher (1991) 23 NSWLR 220
R v Matthews [1950] 1 All ER 137
Regina v Stavropoulos [2007] NSWCCA 333
Sumrein v R [2019] NSWCCA 83
SY v R [2020] NSWCCA 320
Taylor v R [2018] NSWCCA 50
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57

Texts Cited:
Macquarie Dictionary, online ed, December 2022

Category: Principal judgment
Parties: Peter Vaiusu (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
P Lange (Applicant)
S Traynor (Respondent)
Solicitors:
Criminal Defence Group Pty Ltd (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/00171105

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 Vaiusu v The The King

Details

AGLC: Vaiusu v The The King [2022] NSWCCA 283
Case: [2022] NSWCCA 283
Decision Date: 15 December 2022

CaseChat Overview and Summary

Vaiusu appealed against his sentence for possession of firearms, supply of drugs, and possession of proceeds of crime. The primary legal issue was whether the sentence was appropriate given his offer to surrender firearms in exchange for favourable treatment for his brother, who was also involved in the criminal activities. The appeal centred on the trial judge's failure to quantify the reduction in penalty for Vaiusu's offer to assist the authorities and whether the trial judge correctly considered the objective gravity of the offence. The appeal further examined whether the trial judge erred by finding that Vaiusu's knowledge of the illegality increased the objective seriousness of the offence.

The court held that the appeal was not solely concerned with jurisdictional errors, but also with significant non-jurisdictional errors that could lead to a miscarriage of discretion. The court found that Vaiusu's offer to surrender firearms was a mitigating factor, but the trial judge was not required to quantify the reduction in penalty. The court also held that the trial judge was correct in finding that Vaiusu's knowledge of the illegality increased the objective seriousness of the offence. The court noted that the trial judge had considered all relevant factors and had not erred in determining the sentence. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders