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: 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
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:
Solicitors:
P Lange (Applicant)
S Traynor (Respondent)
Criminal Defence Group Pty Ltd (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2018/00171105
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- AGLC
- Vaiusu v The The King [2022] NSWCCA 283
- Case
- [2022] NSWCCA 283
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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