Vassiliou v The The Queen - [2022] NSWCCA 91

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Vassiliou v R [2022] NSWCCA 91
Hearing dates: 22 April 2022
Date of orders: 16 May 2022
Decision date: 16 May 2022
Before: Harrison, Davies and Hallen JJ at [1]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – where applicant pleaded guilty in Local Court to robbery in company – discount for assistance – where another offender involved – where other offender identified by applicant - where alleged co-offender not prosecuted – whether sentencing judge erred in not having regard to all matters set out in s 23(2) in assessing value of applicant’s assistance – whether discount of 5% was open to sentencing judge
CRIME – appeals – appeal against sentence – parity – where applicant’s 16-year-old sister was co-offender and was sentenced in Children’s Court – whether disparity between sentences imposed on applicant and young person gave rise to a justifiable sense of grievance – where parity not raised by the applicant before the sentencing judge – significant differences between applicant and co-offender – no justifiable sense of grievance

Legislation Cited:
Crimes Act 1900 (NSW) ss 97, 192E
Crimes (Sentencing Procedure) Act 1999 (NSW) s 23
Firearms Act 1996 (NSW) ss 4, 4D, 7, 65

Cases Cited:
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Greentree v R [2018] NSWCCA 227
Hraiki v R [2019] NSWCCA 140
Hutchinson v R [2014] NSWCCA 317
Jones v R [2021] NSWCCA 106
R v Henry (1999) 46 NWSWLR 346; [1999] NSWCCA 111
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Texts Cited:
Nil

Category: Principal judgment
Parties: Jacob Vassiliou (Applicant)
Crown (Respondent)
Representation:
Counsel:
M Crawford-Fish (Applicant)
E Nicholson (Respondent)
Solicitors:
Mark Klees & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/134455
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Vassiliou [2021] NSWDC 403

Date of Decision:

24 May 2021

Before:

Wilson SC DCJ

File Number(s):

2020/134455

Judgment

THE COURT: The applicant pleaded guilty to the following offences:

Sequence 6: Robbery in company contrary to s 97(1) Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years’ imprisonment and there is no standard non-parole period.

Sequence 7: Possess unauthorised prohibited firearm contrary to s 7(1) of the Firearms Act 1996 (NSW). The maximum penalty for this offence is 14 years’ imprisonment and there is a standard non-parole period of four years.

The applicant asked the sentencing judge to take into account two further offences in relation to sequence 6. Those offences were:

(a) Sequence 4: Possess ammunition without holding licence/permit/authority, contrary to s 65(3) of the Firearms Act 1996. The maximum penalty for this offence is a fine of 50 penalty units;

(b) Sequence 5: Dishonestly obtain financial advantage by deception contrary to s 192E(1)(b) of…

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: [2022] NSWCCA 91
Decision Date: 16 May 2022

CaseChat Overview and Summary

The case of Vassiliou v The Queen involved an appeal against the sentence imposed by the Local Court. Vassiliou pleaded guilty to robbery in company. The dispute centred on the discount the sentencing judge applied for Vassiliou's assistance, and the parity of the sentence compared to that of his co-offender, his 16-year-old sister, who was sentenced in the Children’s Court. Vassiliou argued that the sentencing judge erred by not fully considering all matters set out in s 23(2) when assessing the value of his assistance and that the disparity in sentences between him and his sister gave rise to a justifiable sense of grievance.

The court examined whether the sentencing judge erred in not considering all relevant factors in s 23(2) when determining the discount for Vassiliou's assistance. Additionally, the court assessed whether the disparity between Vassiliou's sentence and his sister's sentence created a justifiable sense of grievance, even though this issue was not raised before the sentencing judge. The court also considered the significant differences between Vassiliou and his co-offender, including age and the nature of their respective roles in the crime, in evaluating the parity of their sentences.

The court concluded that the sentencing judge did not err in applying the 5% discount for Vassiliou's assistance, as the judge considered all relevant factors in accordance with s 23(2). The court further found that there was no justifiable sense of grievance arising from the disparity between the sentences. The significant differences between Vassiliou and his sister, particularly their ages and the roles they played in the crime, meant that the sentences were proportionate and appropriate. As such, the appeal was dismissed.

The court did not make any orders altering the sentence imposed on Vassiliou by the Local Court. The original sentence and the discount for assistance remained unchanged.

Orders