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Court of Criminal Appeal 2 May 2018

Sheu v R

[2018] NSWCCA 86

Theft & property
CRIME APPEAL SENTENCE OFFENDER NO MERIT NO POINT OF PRINCIPLE

Citation: Sheu v R [2018] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 2 May 2018
Judges: Hoeben CJ at CL, Walton J, R A Hulme J

Background

The applicant was one of three Albanian nationals sentenced in the District Court in September 2016 for a series of highly organised break, enter and steal offences targeting ATMs and safes at commercial premises across New South Wales and Australia. The offending spanned roughly two and a half years and involved sophisticated techniques including roof entry, disabling of security systems, and use of plasma cutting equipment. The total cash stolen in New South Wales alone by the applicant and one co-offender was approximately $550,000.

The applicant received an aggregate sentence of 12 years with a non-parole period of 8 years. His co-offenders received 11 years (non-parole 7 years) and 14 years (non-parole 9 years) respectively. At the original sentencing hearing, senior counsel appearing for all three offenders submitted that the applicant and one co-offender should receive slightly lesser sentences than the third, and the sentencing judge sentenced accordingly.

The applicant then sought leave to appeal to the Court of Criminal Appeal, arguing on a single ground: that the disparity between his sentence and the 14-year sentence imposed on the co-offender with the higher sentence was not large enough to be fair.

  • Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence of 12 years and the co-offender's sentence of 14 years, such that leave to appeal should be granted on parity grounds.

Decision

R A Hulme J (with whom Hoeben CJ at CL and Walton J agreed) found no merit in the appeal. The sentencing judge had done precisely what the applicant's own senior counsel had asked: impose a sentence "slightly less" than the 14 years given to the co-offender with the more serious criminal history. The applicant was now seeking a larger differential than he had sought at first instance, a position the Court regarded as highly regrettable.

On the substance of the parity argument, the Court examined whether the two factors raised (the co-offender's higher risk of reoffending and prior criminal history, and the applicant's wife's ill-health) justified a greater distinction. R A Hulme J considered these matters to have been quintessentially within the sentencing judge's discretionary evaluation and arguably of very little significance.

The Court also addressed the argument that the entire two-year difference between the sentences was "wholly accounted for" by the co-offender's additional offence under the Migration Act (making a false statement on an incoming passenger card, for which an indicative sentence of 2 years was specified). R A Hulme J noted that it was inconceivable that a 2-year indicative sentence for that offence would have been wholly accumulated upon all the other sentences, meaning it could only explain part of the differential. The argument did not succeed.

R A Hulme J also observed that an offence against Commonwealth law should have been dealt with under the sentencing provisions of the Crimes Act 1914 (Cth) rather than incorporated within an aggregate sentence for State offences, though this was noted as presently of no practical consequence to the outcome.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A parity ground of appeal carries little weight where the sentence differential was precisely what the applicant's own counsel sought at first instance. The Court of Criminal Appeal was unreceptive to an applicant asking for a greater benefit on appeal than was sought below.
  • Under the principles in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, a co-offender must demonstrate a justifiable sense of grievance about the disparity, not merely a preference for a larger difference.
  • Matters such as relative risk assessments for reoffending and a co-offender's prior criminal history are quintessentially within the sentencing judge's discretionary evaluation. An appellate court will not lightly interfere with that exercise.
  • In dismissing the appeal, the Court confirmed that this jurisdiction will not easily entertain grounds of error on a point that was raised below and resolved in the applicant's favour.
  • An offence against Commonwealth law should be sentenced under the Crimes Act 1914 (Cth), and its incorporation within an aggregate sentence for State offences is technically incorrect, although this observation did not affect the outcome here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 93T(1), 113(1), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth)
- Migration Act 1958 (Cth), s 234(1)(b)

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (governing principles on parity of sentences for co-offenders)
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 (principle that the Court of Criminal Appeal will not lightly entertain grounds not raised below)