Sheu v R

Ground of appeal

1. The sole ground of the proposed appeal is: "The applicant seeks leave to appeal on the ground that he has a justifiable sense of grievance in the light of the sentence imposed upon his co-offender, Gjergi Nika."
2. There was no controversy about the principles that apply in relation to a ground of appeal concerned with parity of sentences imposed upon co-offenders: see, for example, Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49.

The offending

1. It is unnecessary to describe in detail the offences committed by the applicant and his co-offenders. The sentencing judge described their offences as "a highly organised and sophisticated series of robberies". His Honour provided the following overview of the offending: "Between 21 April 2012 and 9 December 2014, Boka, Nika, Sheu and, between 19 September 2014 and 9 December 2014, [Aniello] Vinciguerra, participated in an organised criminal group specifically targeting ATMs and safes within commercial premises in Sydney, NSW and elsewhere in NSW and Australia. The offenders, in a joint criminal enterprise, operated with a distinct modus operandi which involved gaining entry to premises through the roof or, on occasion, perimeter walls. Entry via a building's roof was gained by cutting and peeling back the tin roofing, specifically above or near where the offenders knew the ATMs to be located. Once inside, the offenders would then disable the CCTV, alarm and telephone systems by either cutting the service cables or physically smashing or ripping them from the walls. They would then use Plasma / Oxyacetylene cutting equipment or, on occasion, an angle grinder to cut through the steel chassis of the ATMs or safes, targeting the locking mechanisms and bolts of the steel doors. Once opened, they would steal the cash contained within the ATMs and leave the premises. On occasion, they would also steal cash from safes and note-reader machines. The group would normally travel from their base in Melbourne and target ATMs in commercial premises interstate. Prior to committing at least three offences in NSW, the offenders Nika and Sheu attended the targeted premises to conduct reconnaissance. At least once each, the offenders Boka and Vinciguerra also attended premises to conduct reconnaissance. On some occasions, CCTV footage captured the offenders donning dark clothing and covering their faces and wearing earpieces and carrying walkie-talkies."
2. The offences for which the applicant was sentenced were: Break and enter Coles Express Service Station at Jamisontown on the night of 24-25 August 2014 and steal $97,030. Break and enter Parklea Markets on the night of 26-27 September 2014 in circumstances of aggravation (being in company) and steal tools, cash, hand bags and jewellery to the approximate value of $22,000. Break and enter the ATM bunker room of St Andrews Shopping Centre on the night of 6-7 October 2014 in circumstances of aggravation (being in company) and steal $98,900. Break and enter the ATM bunker of Kotara Shopping Centre in the early hours of 20 October 2014 and steal $98,890. Break and enter the bunker rooms of Thornton Shopping Centre on 28 October 2014 in circumstances of aggravation (being in company) and steal $182,490. Participate in a criminal group between 21 April 2012 and 9 December 2014.
3. The statement of agreed facts indicated that the total amount of cash stolen by the applicant and Mr Nika in the offences committed in New South Wales was approximately $550,000.

Some other matters relevant to sentence

1. The three offenders were Albanian nationals who were in Australia on tourist visas. The applicant and Mr Boka had no criminal history while Mr Nika had a conviction in respect of an ATM burglary in South Carolina in 2002 and further offences relating to vehicles. He had served two custodial sentences in the United States.
2. There was a contest between the parties as to whether the three offenders had come to Australia in order to commit this type of offending. The judge was not satisfied of that beyond reasonable doubt but he said: "However, I am satisfied that, if not the sole purpose, a purpose of the offenders coming to Australia was the commission of some type of offence which would enable them to secure substantial amounts of money for the reasons that have been covered in the histories which have been provided, namely, their less than ideal financial circumstances and the need to improve their lives."
3. The judge accepted a submission by the Crown that Mr Nika should not be extended leniency because he had prior convictions. He also accepted that Mr Boka and the applicant should not be extended leniency because of their unequivocal admission of prior similar offending in Victoria for which they remained to be dealt with. Mr Dunn SC, who appeared for each of the offenders in the joint sentence hearing, conceded that the applicant and Mr Boka were not entitled to the level of leniency that could be extended to someone with an unblemished record.

Parity

1. In relation to parity it is important to note that the applicant and Mr Nika were sentenced and had taken into account the exact same offences with the only exception that Mr Nika was also sentenced for an offence contrary to s 234(1)(b) of the Migration Act 1958 (Cth) of making a false statement (he said on an incoming passenger card that he had no prior conviction). Mr Boka had one less offence for sentence and three less offences taken into account.
2. During the course of submissions the judge raised the question of parity. After getting a rather lengthy response from counsel, the exchange continued: "HIS HONOUR: So what does all that mean? I don't want any parity appeals, I don't want you coming on after I've sentenced them and saying-- DUNN: No, I won't be coming along and saying. What I'm saying is that they're roughly all the same, but there are difference [sic] between them. HIS HONOUR: But are you saying that the differences all balance out so at the end of the day, the sentence should be the same or not? DUNN: Not to Boka and not to Sheu, we say both of them are lesser. HIS HONOUR: Should be slightly less than Nika. DUNN: Should be slightly less. And we say Boka should be released, followed by Sheu then Nika at the top." (Emphasis added)
3. It was necessary for the judge to indicate the sentences he would have imposed for the individual offences if he had not been imposing an aggregate sentence. He indicated identical sentences for the offences the offenders had in common. He distinguished between them by the degree of notional accumulation between them, yielding the aggregate sentences mentioned earlier.
4. The applicant now complains that there should have been a distinction between his sentence and that which was imposed upon Mr Nika that was more than the "slightly less" his very eminent senior counsel successfully sought for him. The applicant argues that such a greater distinction was justified because: Specific deterrence loomed larger for Nika: he had a prior criminal history involving similar offending and he was assessed by a Community Corrections officer as having a higher level of risk of reoffending than the assessment made in respect of the applicant by a different Community Corrections officer. The applicant's wife suffered from ill-health, although not "life-threatening".
5. The significance of these two matters was quintessentially a matter for the sentencing judge's discretionary evaluation. Arguably, they were of very little significance at all.
6. As to the first matter, Mr Nika's prior offences were quite sometime in the past. More significant was the recent offending interstate to which the applicant admitted. It was open to the judge to treat the offenders in the same way, by not extending to them the leniency that would otherwise have been available.
7. As to the applicant's wife's ill-health, a few weeks before the sentence hearing she was hospitalised for three days. The diagnosis noted on the hospital discharge summary was of "tonsillitis", "pustular acne of shoulder and breast that then developed to cellulitis about 4 inch diameter" and "sepsis". A certificate signed by a doctor on 12 September 2016, backdated to her discharge from hospital on 29 August 2016, indicated that Ms Sheu was "unfit for work due to tonsillitis and cellulitis". If this was a matter of any mitigation at all it was quite minor.
8. The applicant contended that the judge should have sentenced in the way he foreshadowed in his sentencing remarks: "Ultimately, Mr Dunn's candid submission was that Mr Nika, being the eldest and one who had prior records was likely to attract the most severe penalty, that Mr Sheu would be in the middle of the range of penalties and that Mr Boka as the younger one with the lesser offences would attract the least severe penalty. The Crown did not necessarily cavil with that admittedly broad characterisation and I accept that it is an appropriate way in which to deal with the matter."
9. It was argued that the assessment of identical individual sentences did not reflect the approach the judge had foreshadowed. However, as I have said, the judge made the distinction between each of the three offenders by the level of notional accumulation of the indicative sentences.
10. A further argument was that the difference between the applicant's sentence of 12 years and Mr Nika's sentence of 14 years was "wholly accounted for" by the fact that the latter was also being sentenced for the offence of making a false statement contrary to s 234(1)(b) of the Migration Act. Such an offence has a maximum penalty of imprisonment for 10 years. The judge specified an indicative sentence of 2 years.
11. The first observation to make about that is that an offence against Commonwealth law should have been dealt with under the sentencing provisions in the Crimes Act 1914 (Cth) and not incorporated within an aggregate sentence imposed for State offences. Presently that is of no moment. The significant thing is that it is inconceivable that the judge would have wholly accumulated the 2 year sentence for this offence upon all of the sentences assessed for the other offences which involved substantially greater criminality. Perhaps this offence did justify some of the two-year difference in the aggregate sentences imposed upon the applicant and Mr Nika. It is arguable that not much else did.

Conclusion

1. It has been said that this Court will not lightly entertain points that could have been but were not raised in the court below: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81] (Johnson J). Even less lightly should the Court entertain an assertion of error in respect of a point that was raised in the court below and resolved in the applicant's favour.
2. In this case the applicant complains of error on the part of a sentencing judge who did precisely what he was asked to do by a senior counsel renowned for his skill and experience in the criminal law. It is, in my view, highly regrettable that scarce funding resources of Legal Aid NSW have been wasted on a matter such as this.
3. I propose that leave to appeal be refused.

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