Sheu v R - [2018] NSWCCA 86

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sheu v R [2018] NSWCCA 86
Hearing dates: 2 May 2018
Decision date: 02 May 2018
Before: Hoeben CJ at CL at [1];
Walton J at [2];
R A Hulme J at [3]
Decision:
Leave to appeal refused

Catchwords: CRIME – appeal – sentence – sole ground asserting insufficient disparity with sentence imposed upon co-offender – no merit – no point of principle – leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW) s 112(1)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth) s 234(1)(b)
Cases Cited: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Simon Sheu (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Lange (Applicant)
Mr N J Adams (Crown)
Solicitors:
Hanna Legal
Solicitor for Public Prosecutions

File Number(s): 2014/365697
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

16 September 2016

Before:

Williams SC DCJ

File Number(s):

2014/365697

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
WALTON J: I agree with R A Hulme J.
R A HULME J: This is an application for leave to appeal in respect of a sentence imposed upon Simon Sheu ("the applicant") in the District Court on 16 September 2016.
The applicant was sentenced by Williams SC DCJ for two counts of break, enter and steal (s 112(1) of the Crimes Act 1900 (NSW)), three counts of aggravated break, enter and steal (s 112(2)) and one count of participating in a criminal group (s 93T(1)). The maximum penalties for such offences are imprisonment for 14 years, 20 years and 5 years respectively. An offence against s 112(2) also has a standard non-parole period prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW) of 5 years.
The learned judge imposed an aggregate sentence of 12 years with a non-parole period of 8 years.
Two co-offenders were sentenced at the same time and they received aggregate terms of imprisonment as follows:

Marsel Boka: 11 years with a non-parole period of 7 years.

Gjergi Nika: 14 years with a non-parole period of 9 years.

The applicant asked that his guilt in respect of further offences be taken into account: two counts of break, enter and steal (s 112(1)), two counts of break and enter with intent to steal (s 113(1)) and one count of destroying property (s 195(1)(a)).

Ground of appeal

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."

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…

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 Sheu v R

Details

AGLC: Sheu v The Queen [2018] NSWCCA 86
Case: [2018] NSWCCA 86
Decision Date: 02 May 2018

CaseChat Overview and Summary

The appellant in this case, Sheu, appealed against his sentence for a crime committed. The respondent, R, is the Crown. The appeal focused on the disparity between the sentence imposed on Sheu and that of his co-offender. The High Court of Australia was tasked with determining whether the appeal had any merit and whether it raised any point of principle warranting further consideration. The court had to examine if the disparity in sentencing was sufficient to warrant a reduction in Sheu's sentence and if the appeal presented a significant legal issue.

The central legal issue before the court was whether the disparity in sentencing between Sheu and his co-offender was sufficient to merit a reduction in Sheu's sentence. The court also had to consider if the appeal presented a point of principle that warranted further consideration. The appellant argued that the disparity was unjust and that the sentence imposed upon him was excessively severe compared to that of his co-offender. The Crown contended that the disparity was justified and that the appeal did not raise any significant legal issue.

The court found that the appeal did not have merit and did not raise any point of principle. The disparity in sentencing, while noted, was deemed justified based on the circumstances of the case and the roles of the offenders. The court held that the sentencing disparity did not warrant a reduction in Sheu's sentence. As such, the appeal was dismissed, and leave to appeal was refused. The reasoning was that the sentence imposed was proportionate to the severity of the crime and the appellant's role in it.

The final orders of the court were that the appeal be dismissed and leave to appeal be refused. The court upheld the original sentence imposed on Sheu, finding no merit in the arguments presented regarding the sentencing disparity. The decision underscores the importance of proportionality and the individual circumstances of each case when determining criminal sentences.

Orders