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Valsamakis v R

Valsamakis v R

Case [2016] NSWCCA 156 4 August 2016

Criminal Liability

Sentencing

Breach of Contract

Unconscionable Conduct

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Valsamakis v R [2016] NSWCCA 156
Hearing dates: 1 March 2016
Date of orders: 04 August 2016
Decision date: 04 August 2016
Before: Bathurst CJ at [1];
Hall J at [2];
R A Hulme J at [203]
Decision:
(1) Leave to appeal against sentence granted
(2) Appeal dismissed

Catchwords: SENTENCE – Conspiracy to import a commercial quantity of border controlled precursor (ss 11.5(1) with 307.11(1) of the Criminal Code (Cth)) – rolled-up offence involving five importations – applicant a customs officer and as such had responsibilities in detection and prevention of alleged cross-border activity – bribery of a Commonwealth Public Official (s 141.1(3) of the Criminal Code (Cth)) – Official Abuse Office to Gain Advantage (s 142.2(1) of the Criminal Code (Cth)) – parity – differential charging of co-offenders – hierarchy of offenders within charged conspiracy offences – no marked disparity in respect of sentences imposed – whether discount on sentence allowed for co-operation with law enforcement authorities – assessment in sentencing for nature and ongoing severity of imprisonment – protective custody – objective seriousness – sentences imposed not manifestly excessive
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Cases Cited: England v R; Phanith [2009] NSWCCA 274
FS v R [2009] NSWCCA 301; 198 A Crim R 383
Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
Haouchar v R [2014] NSWCCA 227
Jimmy v R [2010] NSWCCA 60; NSWLR 540
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Lewins v R [2007] NSWCCA 189; 175 A Crim R 40
Markarian v R [2005] HCA 25; 228 CLR 357
Postiglione v The Queen [1997] 189 CLR 295
R v Chandler; Chandler v R [2012] NSWCCA 135
R v Henderson [2014] QCA 12
R v Joseph Sukkar [2006] NSWCCA 92; 172 A Crim R 151
R v Lamella [2014] NSWCCA 122
SL v R [2015] NSWCCA 30
SZ v R [2007] NSWCCA 19; 168 A Crim R 249
Category: Principal judgment
Parties: Paul Apostolos Valsamakis (Applicant)
Regina (Crown)
Representation:
Counsel:
M Ramage QC (Applicant)
L Crowley (Crown)
Solicitors:
Tran Solicitors & Attorneys (Applicant)
Director of Public Prosecutions (Cth) (Crown)

File Number(s): 2013/45391
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Common Law - Criminal

Date of Decision:

30 January 2015

Before:

Hanley DCJ

File Number(s):

2013/45391

Judgment

BATHURST CJ: I agree with the orders proposed by Hall J and generally with his Honour’s reasons.

A. INTRODUCTION

HALL J: The applicant, Paul Apostolos Valsamakis, seeks leave to appeal by Notice filed on 15 September 2015 in respect of sentences imposed upon him in the District Court at Sydney by Hanley DCJ on 30 January 2015.
The applicant entered pleas of guilty to the following four counts:

Conspiracy to Import a Commercial Quantity of Border Controlled Precursor (pseudoephedrine) – Section 11.5(1) with 307.11(1) of the Criminal Code 1995 (Cth)…

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 Valsamakis v R

Details

AGLC: Valsamakis v The Queen [2016] NSWCCA 156
Case: [2016] NSWCCA 156
Decision Date: 04 August 2016

CaseChat Overview and Summary

The applicant, Valsamakis, was convicted of conspiracy to import a commercial quantity of border controlled precursor, bribery of a Commonwealth Public Official, and Official Abuse Office to Gain Advantage. Valsamakis, a customs officer, was involved in a conspiracy that included five separate importations. He appealed his sentence, arguing that it was manifestly excessive, especially considering his co-operation with law enforcement authorities. The appeal also addressed parity in sentencing, noting that co-offenders were differentially charged and that there was a perceived hierarchy among the offenders within the conspiracy.

The legal issues before the court included the assessment of whether the sentence imposed was manifestly excessive, the consideration of parity and differential charging among co-offenders, and the evaluation of the applicant's cooperation with law enforcement in the sentencing process. Additionally, the court had to determine the appropriate weight to be given to the nature and ongoing severity of imprisonment, including the need for protective custody, and the objective seriousness of the crimes.

The court found that the sentences imposed were not manifestly excessive. It acknowledged that Valsamakis's role as a customs officer created a duty to detect and prevent illegal activities, which made his conduct particularly egregious. However, the court noted that there was no marked disparity in the sentences imposed on co-offenders. It also considered the nature and ongoing severity of imprisonment, including protective custody, and the objective seriousness of the crimes. The court concluded that the sentences reflected these factors appropriately and did not allow for a discount based on co-operation with law enforcement, as Valsamakis's cooperation did not significantly mitigate the severity of his crimes.

No further orders were made by the court. The appeal was dismissed, and the original sentences were upheld.

Orders