Regina v Bala [2004] NSWCCA 345 | Case summary

1 GROVE J: Nexhmedin Bala (the appellant) seeks leave to appeal against the severity of sentence imposed on him by O'Reilly DCJ at Sydney District Court on 19 December 2003. The appellant pleaded guilty to one count of being an accessory after the fact to breaking, entering and stealing and to five counts of receiving stolen property. He asked to be taken into account three offences of goods in custody pursuant to the Form 1 procedure. On each of the six counts his Honour sentenced the appellant to imprisonment for two years commencing on 19 December 2003 with a non parole period of fifteen months commencing on that date and expiring on 18 March 2005. The appellant had been arrested and charged on 31 May 2002. He was initially refused bail but this was granted on 13 December 2002 and entered by him on 16 December 2002. He was returned to custody on the commencement date of the sentences mentioned above and thus, prior thereto, he had been kept in custody for six months and sixteen days. 2 The offences were detected following the formation of a police task force as it had become apparent that premises in affluent parts of Sydney were being targeted for the purpose of breaking, entering and stealing. In the course of investigation Gzima Berisha (Berisha) was identified as an employee of an insurer who was accessing confidential information in his employer's data bank specifically concerning premises where valuables were kept and alarm systems were not present. Berisha was supplying this information to Dino Danuca (Danuca) and the appellant. 3 There were some variations in the charges brought against Berisha to reflect his criminal conduct but ultimately he was indicted and pleaded guilty to a charge pursuant to s 308C of the Crimes Act 1900 which may shortly be described as causing an unauthorized computer function with the intention of facilitating commission of a serious indictable offence. Berisha appeared for sentence on 7 February 2003 before Shillington DCJ. It was conceded that he had pleaded guilty at the earliest opportunity. His offer to cooperate with authority and give evidence against Danuca and the appellant was noted and he was sentenced to imprisonment for two years with a non parole period of six months. In imposing that sentence Shillington DCJ took into account five additional charges on a Form 1, three of these relating to receiving stolen property which his Honour presumed was payment for his services to the other offenders, one charge of goods in custody and a charge of breaking, entering and stealing when he had accompanied Danuca when an offence of attempted breaking, entering and stealing took place, although his participation consisted of driving the vehicle. 4 Danuca and the appellant are in fact brothers. The appellant (born 24 February 1964) is the elder by about five years. Danuca appeared with the appellant for sentence before O'Reilly DCJ where he pleaded guilty upon indictment to seven counts of breaking, entering and stealing. Of the three offenders, Danuca was in common parlance the active burglar. He asked to be taken into account on sentence matters comprised on three separate Form 1 documents comprising six counts of receiving stolen goods, one further count of breaking, entering and stealing and three counts of goods in custody. The construct of sentences imposed upon Danuca effectively amounted to eight years imprisonment with eligibility for parole after service of six years and six months. 5 The arrest of the appellant followed the carrying out of a surveillance operation by police upon residential premises at Guildford. These premises were occupied by the families of the appellant and Danuca as well as another brother who was not alleged to be involved in the criminal activity. A search warrant was executed. The loot from the various offences can only be described as huge but it must be borne in mind that the involvement of the appellant is limited to the offences to which he pleaded guilty and asked to be taken into account. The learned sentencing judge detailed the relevant matters and no challenge was made in that regard and it is unnecessary for present purposes to recite his findings. The appellant raised five grounds of appeal expressed as follows: "1. The sentence imposed upon the applicant fails to have sufficient regard to the impact of the period of six and half months spent in custody prior to being released on bail for a period of approximately twelve months until the time sentence was imposed. 2. The sentence imposed on the applicant fails to have sufficient regard to important mitigating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999. 3. The sentence imposed on the applicant is manifestly excessive when compared with that imposed on one of the co-offenders, Gzima Berisha such as to leave the applicant with a justifiable sense of grievance that he has been dealt with unduly severely. 4. The sentencing judge erred in failing to extend the applicant a discount on the otherwise appropriate sentence to recognize the fact of his pleas of guilty. 5. The sentence imposed on the applicant fails to reflect in an overall sense the finding by the judge that there were special circumstances for the purpose of s 44(2) of the Crimes (Sentencing Procedure) Act 1999." 6 It is convenient to deal with grounds 1 and 5 together. In imposing sentence his Honour specified the period of imprisonment for two years and then stated that he would fix a non parole period of fifteen months "having made the findings of special circumstances by reason of, one significant reason he is being forced back into custody, having had a chance to get his life back under control for twelve months. It will be very onerous, in my opinion, for him." Given the statutory formula, it is reasonable to infer that what his Honour had in mind was that, absent special circumstances, the non parole period would have been specified as eighteen months. Shortly after imposing sentence his Honour invited counsel to seek any clarification, as a result of which he stated that he "came to that figure of two years" after he bore in mind that the appellant had already served six months and he went on to say "I did not reduce it, mainly for the reason that I was going to give fifteen months non parole period in any event, so I just felt obliged to impose some full time but not a lot." 7 A difficulty asserted by the appellant is that the actual service of six months and sixteen days, if taken into account in addition to the sentence actually imposed, extinguishes in any practical way the benefit that the appellant would have by departure from the statutory formula in harmony with his Honour's finding of special circumstances. The thrust of the appellant's argument can be perceived if one were notionally to imagine that the period of six months and sixteen days immediately preceded the sentence date and a total sentence of two years six months and sixteen days had been assessed. A reflection of the finding of special circumstances would not involve the appellant being kept actually in custody for twenty one months and sixteen days. 8 Ground 2 essentially was sought to be supported by contention that his Honour had given insufficient weight to various factors scheduled in the statutory provision. It is not contended that his Honour overlooked any relevant matter but it was sought to argue that his Honour should have applied the statutory injunction that effectively gaol is a "last resort". I see no error in his Honour's determination that the appellant's offences be met with full time imprisonment. 9 Ground 3 can sufficiently be described as a "parity" argument. O'Reilly DCJ was expressly aware of how Berisha had been dealt with and he included reference in his remarks. The charge against Berisha was of course different in nature from those preferred against the appellant. Berisha's position is also distinguishable from that of the appellant in that he pleaded guilty at the very earliest opportunity and was entitled to consideration for his cooperation including offers to give evidence against the appellant and his brother. 10 The argument on behalf of the appellant contended that the objective criminality of the appellant was significantly less than that of Berisha, however the flaw in that approach is that it is an attempt to compare unlike offences. I would reject the appellant's argument on ground 3. 11 As observed, the appellant appeared for sentence following pleas of guilty. It was conceded by senior counsel appearing for the Crown that the learned sentencing judge did not state that he had applied any discount to reflect the value of the appellant's pleas of guilty on a utilitarian basis or any other. In this regard there is a distinction to be drawn between the appellant and his co-offender brother Danuca in respect of whom his Honour expressly said he had allowed a 20 percent discount. 12 It was submitted by the Crown that despite the absence of reference it should be concluded not only that the sentencing judge had not failed to extend any discount for the applicant but rather that it should be concluded that the same 20 percent discount as had been given to the co-offender Danuca should be regarded as having been given to the appellant. I am unable to accept that submission. 13 His Honour had mentioned that the appellant's pleas of guilty represented considerable social utility and were "an important contribution to the criminal justice system" and he found that both the offenders then appearing before him would be taken to be contrite by reason of their respective pleas of guilty. That his Honour made these references adds highlight to the distinction between the co-offenders in that there was an express discount on sentence granted to one but no expression in respect of the other. The approach contended for by the Crown raises compounding difficulties in trying to formulate in realistic figures how a 20 percent discount was applied, having regard to the complication of the six months and sixteen days time actually served being "taken into account" without being part of the specified sentence imposition. I would sustain ground 4. 14 I would proceed to resentence. The appellant had no prior convictions. He had arrived in Australia with his wife and three children only a short time before the commission of these offences and was a member of an Albanian community which had fled from the conflict in Kosevo. O'Reilly DCJ recited favourable factors upon which the appellant could draw when facing sentence and I would adopt what his Honour has said. I would also find special circumstances for congruent reasons with those expressed by him. 15 It cannot be overlooked that on the construct of sentences imposed by O'Reilly DCJ the appellant will be due for release to parole less than six months hence. As he has succeeded in making good the grounds above indicated the resentencing by this Court should reflect that success in a practical way. I therefore propose the following orders:

Regina v Bala

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