Soames v R

1. [1]

   HOEBEN CJ at CL: I agree with Garling J.

2. [2]

   R A HULME J: I agree with Garling J.

3. [3]

   GARLING J: On 19 April 2017, for the reasons which he then gave, Davies J ordered pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) that the proceedings involving, Matthew Soames, were to be referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW): see Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423.

4. [4]

   The basis for that enquiry was the appearance of disparity, or lack of due proportion, between the sentences imposed on Mr Soames, to whom I shall refer as the appellant, and those imposed on two co-offenders, Daniel Grover and Brian Grover.

Original Sentence

1. [5]

   The appellant was sentenced in the District Court on 8 March 2013. There, he pleaded guilty to two charges, the first was knowingly taking part in the supply of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the May offence”), and the second offence being for the supply of a prohibited drug, also contrary s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the June offence”).

2. [6]

   The May offence involved a quantity of 24kg of pseudoephedrine which was not less than the large commercial quantity applicable to that prohibited drug, and the June offence involved a quantity of 22.76kg of pseudoephedrine which was also not less than the large commercial quantity of that drug. Both offences attracted a maximum penalty of life imprisonment with a standard non-parole period of 15 years.

3. [7]

   The sentencing Judge accepted that the appellant had pleaded guilty at the earliest available opportunity and allowed for a 25% discount on the sentence which would otherwise have been imposed.

4. [8]

   English DCJ sentenced him as follows:

5. [9]

   As is apparent, the sentences were accumulated by 12 months, which had the result that the overall effective sentence was of 6 years non-parole and a total effective term of 10 years.

Appeal

1. [10]

   The appellant sought leave to appeal against the sentences imposed on him. On 15 August 2014, the Court of Criminal Appeal, for the reasons which it then gave, granted leave to appeal but dismissed the appellant’s appeal: Matthew Soames v Regina [2014] NSWCCA 158.

2. [11]

   One of the grounds of appeal related to a question of parity of the sentences imposed on the appellant, when compared with the sentences imposed on his father, William Soames, and another co-offender, Ms Cooke.

3. [12]

   At that point in time, no question arose as to the disparity in sentencing with respect to the sentences imposed on either Daniel or Brian Grover, and the appellant.

Daniel and Brian Grover

1. [13]

   Daniel Grover and Brian Grover were both sentenced in the District Court on 16 May 2013. They each entered pleas of guilty to three counts of supplying a prohibited drug not less than a commercial quantity, which offences were contrary to s 25(2) of the Drug Misuse and Trafficking Act. They also entered pleas of guilty to one count of possession of a precursor for the manufacture of a prohibited drug, being an offence contrary to s 25A(1)(a) of the Drug (Misuse and Trafficking) Act. This offence attracted a maximum penalty of 10 years imprisonment.

2. [14]

   The first two offences to which Daniel and Brian Grover pleaded guilty were the May and June offences to which the appellant had also pleaded guilty.

3. [15]

   The sentencing Judge allowed each of Daniel and Brian Grover a discount of 20% to reflect the significant utilitarian value of their pleas of guilty. This discount was slightly less than the 25% discount allowed for the appellant.

4. [16]

   The sentencing Judge imposed a total effective term, so far as the May and June offences were concerned, on Daniel Grover of a non-parole period of 11 years and a total term of 17 years. With respect to Brian Grover, she imposed a total non-parole period of 10 years and 6 months and a total term of 16 years and 6 months.

5. [17]

   Both Daniel and Brian Grover appealed. Their appeal was heard about six weeks after the judgment of the Court of Criminal Appeal was delivered in the appellant’s case.

6. [18]

   The Court of Criminal Appeal, in a decision delivered on 19 December 2014, granted each of the Grovers leave to appeal and upheld their appeals. The sentences that had been imposed in the District Court were quashed, and they were re-sentenced: Grover v R; Grover v R [2014] NSWCCA 315.

7. [19]

   In respect of the May offence, Daniel Grover was sentenced to a non‑parole period of 5 years with a total term of imprisonment of 9 years and 6 months; with respect to the June offence, Daniel Grover was sentenced to a term of imprisonment of 9 years and 6 months with a non-parole period of 5 years. The non-parole period commenced one year after the commencement of the previous sentence.

8. [20]

   Mr Brian Glover was re-sentenced for each offence to a non-parole period of 4 years and 6 months and a total term of 9 years. The sentence for the second offence was accumulated by 12 months onto the sentence with the first offence.

9. [21]

   It can be seen that the effective sentence on the comparable counts imposed on Daniel Grover, was a term of imprisonment comprising a non-parole period of 6 years and a total term of 10 years and 6 months, and on Brian Grover a non-parole of 5 years and 6 months and a total term of 10 years.

10. [22]

    A table setting out each of these sentences is reproduced below:

11. [23]

    The end result of the sentencing process of the Court of Criminal appeal is that the appellant received the same head sentence and a longer non-parole period than did Brian Grover, and the same non-parole period as Daniel Grover, who received a head sentence which was only 6 months longer than that of the appellant.

12. [24]

    It is against this current comparison that the appellant submits that on parity grounds his appeal ought be upheld.

Appellant’s Submissions

1. [25]

   The appellant submits that there were significant differences between him and each of the Grovers, such that he ought to have received a significantly lesser sentence than each of the Grovers did for the same offences. The differences were identified as follows:

2. [26]

   Counsel for the appellant submitted that the intervention of the Court was warranted to restore due proportion between the sentences imposed on the appellant and those imposed on Daniel Grover and Brian Grover, following the re-sentencing in the Court of Criminal Appeal. He submitted that the appellant had a justifiable sense of grievance, having regard to the three matters of distinction to which attention has been drawn.

Crown Submissions

1. [27]

   The Crown submitted that in order for the appellant to succeed on the ground argued, he needed to demonstrate that the disparity between the sentences was “gross, marked or glaring”: Tan v R [2014] NSWCCA 96.

2. [28]

   The Crown accepted that with respect to the sentence imposed on the appellant for the June offence, there was a marked disparity between his sentence and those imposed on Daniel and Brian Grover. The Crown accepted that that marked disparity gave rise to the appearance of injustice sufficient to warrant this Court’s intervention.

3. [29]

   However, the Crown did not accept that in respect of the sentence imposed for the May offence, there was any such marked disparity. It submitted that the Court ought not intervene with respect to that offence. The Crown went on to submit:

Discernment

1. [30]

   I have elsewhere discussed the authorities which are applicable to the application of the parity principle. It is convenient to repeat what I wrote in Rees v R [2012] NSWCCA 47 at [50] on that subject. There, with the agreement of Macfarlan JA and R S Hulme J, I said:

2. [31]

   It is convenient to commence first with the May offence to which the appellant pleaded guilty. In broad terms, a comparison of the sentences received for this offence shows that after the Court of Criminal Appeal re-sentenced the Grovers, the appellant’s sentence was about two-thirds or less of the sentence imposed on each of the Grovers. The total sentence was 6 years compared with either 9 years or 9 years and 6 months, and a non-parole period of 3 years is to be compared with either 4 years and 6 months or 5 years.

3. [32]

   Applying the principles to which reference has been made, the differential in the sentence seems to me to adequately account for the differing roles which were played by each of the offenders and the significantly different subjective cases.

4. [33]

   I am unable to conclude that there is any disparity with respect to the sentences imposed for this offence which would warrant any description of the kind necessary for this Court to conclude that the sentence ought be set aside. Insofar as the appellant contends that he has a justified sense of grievance with respect to this sentence for the May offence, that proposition must be rejected.

5. [34]

   I note that counsel for the appellant accepted in the course of oral submissions that even if adjustment was to be made to the sentence which was imposed with respect to the May offence, he did not submit that the period of accumulation, namely 12 months, ought to be changed in any way so that, from an overall perspective, any adjustment to the sentence for the May offence would not result in any change to the effective sentence.

6. [35]

   The June offence is in a different category.

7. [36]

   The appellant’s submissions ought be accepted. Having regard to the differences between Daniel and Brian Grover’s participation in the June offence, the greater level of criminality and their markedly different subjective circumstances, it would be unjust to the appellant to allow a sentence to stand which was comparable to that imposed on each of his co-offenders.

8. [37]

   As the Crown conceded in its submissions, it is appropriate for the Court to proceed to re-exercise the sentencing discretion, with respect to the June offence.

Sentence

1. [38]

   It is convenient to adopt the description of the factual circumstances of the June offence expressed by the Court of Criminal Appeal in the judgment of Rothman J (with whom Hoeben CJ at CL and Beech-Jones J agreed): Matthew Soames v Regina [2014] NSWCCA 158. There, the facts were described in this way:

2. [39]

   The sentencing Judge described, correctly, the offences for which the appellant was being sentenced as objectively very serious. She noted that the appellant was part of a criminal network which was making available significant quantities of pseudoephedrine for the purpose of manufacturing that substance into methylamphetamine.

3. [40]

   Of his role in the syndicate, her Honour said:

4. [41]

   It appears that the financial reward which the appellant received from the May offence was $3,000 and he expected to receive a similar sum from his involvement in the June offence.

5. [42]

   I accept the sentencing Judge’s description of the appellant’s role as that of a courier. He was neither a principal nor a functionary at the bottom of the organisation. He was being paid to participate in the syndicate’s activities. His criminality must be regarded as serious.

6. [43]

   With respect to the June offence, the sentencing Judge found that it fell within the mid-range of seriousness of offences of this kind. No challenge is made to that conclusion. It is appropriate to adopt it.

7. [44]

   It is necessary to consider the appellant’s subjective case. The appellant is now aged about 35. His motivation to be involved in the criminal proceedings was to raise funds to assist with the payment of legal fees being incurred by his brother.

8. [45]

   The appellant left school after completing the School Certificate and has been employed generally in unskilled labouring and in the retail industry. He was at the time of his incarceration in a stable de facto relationship and was the primary income source for his family. Since being in custody, the appellant has completed a project dealing with the dangers of drugs and their effect upon the community, including the use of pseudoephedrine and the manufacture of methylamphetamine. The appellant has no prior record and is entitled to a degree of leniency in that respect, but associated with the first offence.

9. [46]

   According to an affidavit sworn 26 June 2017, and which was read on the appeal, the appellant has progressed through the usual classifications during his term of imprisonment. He has been employed in responsible employment including providing work tools to other inmates and ensuring return of the work tools at the end of the day when tasks are completed.

10. [47]

    It seems that his de facto relationship which existed for 16 years prior to his going into custody, and for a short period thereafter, has dissolved. He has a 12 year old son and an 8 year old daughter from that relationship, and has not had any contact with his children in more recent times. It has been approximately 18 months since he has seen his daughter and about 12 months since he has seen his son. He is naturally concerned about their development in his absence.

11. [48]

    The sentencing Judge found that the appellant was truly remorseful and contrite and that he had good prospects for rehabilitation. I accept these findings. It is accepted by the Crown that his plea of guilty was entered on the first available opportunity and would warrant a 25% discount as the sentencing Judge accorded to him.

12. [49]

    It is necessary to keep in mind in sentencing the appellant for the June offence, that the offence attracts a maximum penalty of life imprisonment and a standard non-parole period of 15 years. These are guidelines to which a court, when sentencing an individual, must have regard.

13. [50]

    It is also necessary to keep in mind, as this appeal demonstrates, that sentences imposed for similar offences need to bear a proper relationship to each other. In that respect, parity is a form of equal justice. Here, any sentence imposed must take into account the sentences imposed on Daniel and Brian Grover for the June offence.

14. [51]

    Having regard to the fact that there are two offences, although only one offence is the subject of the resentencing being undertaken by the Court, the principle of totality must be given due consideration.

15. [52]

    Taking all of those matters into account, I am of the view that a proper sentence for the appellant on the second offence is one of 6 years with a non‑parole period of 3 years and 6 months commencing 8 January 2014.

16. [53]

    I propose the following orders:

    1. (1)

       Appeal upheld.

    2. (2)

       Sentence imposed by English DCJ on 8 March 2013 with respect to the offence of supplying a prohibited drug (not less than commercial quantity of pseudoephedrine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 be quashed.

    3. (3)

       In lieu thereof, the appellant be sentenced to a term of imprisonment comprising a non-parole period of 3 years and 6 months commencing 8 January 2014 and expiring 7 July 2017, with a balance of term of 2 years and 6 months expiring 7 January 2020.

    4. (4)

       The appellant is not eligible for release prior to the expiration of his non-parole period of 7 July 2017.