New South Wales Court of Criminal Appeal CITATION: Sorbello v Regina [2006] NSWCCA 225 HEARING DATE(S): 24/07/2006 JUDGMENT DATE: 28 July 2006 JUDGMENT OF: Tobias JA at 1; McClellan CJ at CL at 2; Hoeben J at 3 DECISION: Leave to appeal granted. Appeal allowed. Applicant re-sentenced. CATCHWORDS: Sentence appeal - parity - principle of equal justice even though offences not identical. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 CASES CITED: Bree V R [2006] NSWCCA 124) R v M [2005] NSWCCA 224 PARTIES: Frank Sorbello - Applicant Crown - Respondent FILE NUMBER(S): CCA 2006/816 COUNSEL: S Odgers SC - Applicant D Frearson SC - Crown SOLICITORS: Galloways - Applicant S Kavanagh - Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0154 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 04/02/2005 IN THE COURT OF CRIMINAL APPEAL 2006/816 TOBIAS JA McCLELLAN CJ at CL HOEBEN J Friday, 28 July, 2006 Frank SORBELLO v REGINA judgment 1 TOBIAS JA: I agree with Hoeben J. 2 McCLELLAN CJ at CL: I agree with Hoeben J. 3 HOEBEN J: Offences and sentence The applicant entered a plea of guilty to one count of supply a commercial quantity of drugs (MDMA, otherwise known as ecstasy) contrary to s25(2) Drug Misuse and Trafficking Act 1985. This offence took place on 22 July 2003. The plea of guilty was entered on arraignment on 19 March 2004. Two matters were taken into account on a Form 1 – possession of methylamphetamine (2.38g) and cocaine (1.38g). This offence carries a maximum sentence of 20 years imprisonment. Under s54A of the Crimes (Sentencing Procedure) Act 1999 (the Act) the offence carries a standard non-parole period of 10 years. 4 On 4 February 2005 Nield DCJ sentenced the applicant to imprisonment with a non-parole period of 5 years commencing 26 January 2005 and to expire on 25 January 2010 with a balance of term of 3 years to expire on 25 January 2013. Factual background to offences 5 From 15 May 2003 police had been intercepting phone calls to and from a suspected drug dealer, now known as "M". A video camera had been installed in his home. Some of the calls involved the applicant. 6 On 22 July 2003 the applicant attended M's home and left with an Australia Post shopping bag. The applicant's vehicle was stopped at Ultimo when the shopping bag was located in the footwell behind the passenger seat. It contained ecstasy tablets. The total quantity of ecstasy seized (which included some tablets found on the applicant's person and in other parts of the vehicle) was 488.86g (not far short of the large commercial quantity of 500g). Police also located various notes indicative of drug distribution. 7 The recorded conversations between M and the applicant disclosed the closeness of their relationship. His Honour concluded that it was far from obvious who was supplying drugs to whom except that in relation to the offence of 22 July 2003, M clearly was the supplier of drugs to the applicant. Subjective matters 8 The offender was born on 20 September 1964. He was aged 38 years and 10 months when he committed the offence and is currently almost 42. His parents are Italian and he is the eldest of three children. He is married but he and his wife do not have children. 9 The applicant was raised by his parents in a loving and supportive environment. His childhood and teenage years were uneventful. He lived with his family in the family home until his marriage during 1984. He left school when he was aged 16 after completing year 10. 10 Upon leaving school he obtained employment in McDonald's Restaurant in George Street in Sydney. He was appointed the manager of a McDonald's Restaurant during 1988 when he was aged 24. He resigned his employment with McDonald's during 1994 when he was aged 29 to take up employment as the Food and Beverage Manager of the ANA Hotel in Sydney. He was asked to resign his employment with the ANA Hotel during 1997 and he agreed to do so. 11 The circumstances surrounding the applicant's resignation from the ANA Hotel were as follows. The applicant has suffered from the condition of psoriasis since at least 1991. Psoriasis is a chronic, hereditary, recurrent skin disease marked by discrete bright red patches or blotches on the skin which are covered with lamellated scales. The lesions appear mainly upon the scalp, elbows and knees but they also appear upon the chest and back, arms and legs, palms of the hands and soles of the feet. Psoriasis may occur in association with rheumatoid arthritis. 12 Although there are treatments for psoriasis, a cure has not yet been found. The applicant has been treated for psoriasis since 1991, but with only limited success. At first he experienced minor rashes over his elbows and knees but with the passage of time, the disease has affected almost every part of his body. Because the lesions became visible in 1996/7, he was both embarrassed and humiliated by their appearance. The manager of the ANA Hotel was so concerned about his appearance and its effect upon patrons and staff at the hotel, that he requested his resignation. 13 Not surprisingly after the applicant resigned from this employment, he suffered a significant loss of self-esteem and self-confidence and became depressed. He reduced his social and recreational activities and became reclusive. 14 After ceasing employment with the ANA Hotel, he and his wife purchased a video hire business in Haberfield. Later he became the licensee of a nightclub in Kings Cross, in partnership with some friends. It was at that time that he commenced to use ecstasy. He found that ecstasy reduced his arthritic pain and heightened his mood, allowing him to increase his social activities. 15 Neither the video hire business nor the nightclub business was successful. After 18 months he left the nightclub business owing a considerable amount of money. He sold the video hire business and an investment property to cover those debts. Thereafter the applicant remained unemployed. His wife is employed as a childcare worker. 16 As his Honour noted, the applicant until this offence had an unblemished character. Testimonials placed before his Honour showed that he was well liked and well respected by people who knew him. Despite this offence, he has continued to have the support of his family and his wife. 17 After the failure of the nightclub business and the sale of the video hire business to meet his debts, the applicant resorted to supplying prohibited drugs for monetary gain and also to ensure a steady supply of drugs for himself. Remarks on sentence 18 Although the applicant did not plead guilty at the earliest opportunity, his Honour concluded that the plea was at an early stage and allowed him a discount of 20%. 19 His Honour then had regard to s21A of the Crimes (Sentencing Procedure) Act and concluded that the only aggravating factor was that the offence was part of a planned or organised criminal activity (s21A(2)(n)). 20 In relation to mitigating factors, his Honour had regard to the applicant's previous good character (s21A(3)(e)), that the applicant was unlikely to re-offend ((g)), that the applicant had good prospects of rehabilitation ((h)), that the applicant had shown remorse for the offence ((i)) and that a plea of guilty had been entered ((k)). 21 His Honour also had regard to five further matters which he regarded as relevant. These were the disease which the applicant suffered, the additional offences on the Form 1, deterrence both personal and general, the standard non-parole period of 10 years set by s54A of the Act and the fact that M had received a sentence of imprisonment for 8 years with a non-parole period of 5 years and a parole period of 3 years from Berman DCJ on 13 August 2004 for the offence of supplying the MDMA tablets to the offender and some additional offences. 22 In relation to those last matters, his Honour noted that the need for general deterrence was significantly reduced by the strong likelihood that the applicant would be rehabilitated and would not re-offend. He noted that the standard non-parole period did not apply because the applicant had pleaded guilty although his Honour needed to have regard to it as being an important benchmark in the sentencing process. In respect of the sentence imposed on M, his Honour observed that strictly speaking the applicant and M were not co-offenders in the one offence. His Honour also noted that he had not been provided with a copy of the reasons of Berman DCJ for the sentence imposed upon M. 23 His Honour concluded his remarks on sentence as follows: "I do note that the offender, a middle aged man with an unblemished character, who used MDMA for relief from his psoriasis caused arthritic pain and to lift his spirits, and who became involved in the supplying of prohibited drugs when his business failed, is ashamed and apologetic for what he has done, is not likely to re-offend and has excellent prospects of being rehabilitated." 24 Against that his Honour noted that the applicant was in possession of a large quantity of prohibited drugs, most of which he intended to supply to others. "When I consider the objective seriousness of the offence, the circumstances in which the offender committed the offence, the reasons for the offender committing the offence, the offender's previous character, his remorse and shame for committing the offence, the likelihood that he will be rehabilitated and will not re-offend and the standard non-parole period for the offence, I have determined that the appropriate sentence to impose on the offender is imprisonment for 10 years which I reduce by 20%, that is 2 years, on account on the offender's guilty plea, to 8 years. As to special circumstances, I have determined that the offender's previous character, his medical condition and his excellent prospects of rehabilitation are special circumstances which permit me to depart from the statutory apportionment of the sentence into a non-parole period and parole period and to set a non-parole period of 5 years and a parole period of 3 years." Grounds of Appeal Ground of Appeal 1 – The sentencing judge erred in taking into account the sentence imposed on another offender. 25 It is not necessary to analyse the arguments in support of this ground of appeal because the applicant in his reply to the submissions by the Crown sought leave (which was granted) to raise a second ground of appeal. In view of the outcome of that ground of appeal, no useful purpose is served by further discussing this ground. That was the approach adopted by the applicant at the hearing of this application. Ground of Appeal 2 – The applicant has a legitimate grievance by reason of the disparity of sentence imposed on M. 26 Unlike Nield DCJ, this Court had available to it not only the remarks on sentence of Berman DCJ but also the judgment of the Court of Criminal Appeal in R v M [2005] NSWCCA 224. 27 It was submitted on behalf of the applicant that two important points emerged from that judgment. (a) M was sentenced for the supply of a commercial quantity of ecstasy between 10 April 2003 and 1 August 2003, which included 22 July 2003. He was sentenced on the basis that he had conducted a "successful business as a drug supplier". (b) Apart from matters of good character and remorse, the Court found that a plea of guilty had been entered at the earliest opportunity and that assistance had been provided to the authorities. This Court increased the combined discount for those matters to 50%. 28 The start point for the sentences imposed on M was a sentence of 8 years and 4 months. After the application of the discount and other adjustments, the sentence ultimately passed was a non-parole period of imprisonment for 2 years with a balance of term of 2 years. 29 The applicant submitted that although the applicant and M were not being sentenced in relation to the same offence, the parity principle still applied in this context. It was submitted that if A supplies to B and B intends to supply to someone else, parity principles apply to A and B (Bree V R [2006] NSWCCA 124). 30 The applicant further submitted that included in the offences for which M was sentenced was the supply of these drugs to the applicant. This was clear even though the sentencing judge did not specifically advert to this particular supply. In that regard the Crown accepted that the fact of this supply had been brought to the attention of the sentencing judge albeit in the context of M assisting the authorities in relation to that supply. This was one of the incidents of supply engaged in by M in conducting his "successful business as a drug supplier". The Court was also asked to take note of the fact that Berman DCJ in the course of reviewing the facts said that the two particular supplies to which he did refer did "not represent the extent of the offender's involvement in supplying ecstasy". 31 In line with the reasoning in Bree v R, it seems to me that the principle of equality of justice does indicate that the applicant ought be treated at least in the same way and certainly no more severely than M. I am of the opinion that the applicant does have a legitimate grievance by reason of the fact that the starting point for his sentencing regime was 10 years, whereas that for M was 8 years and 4 months. This is particularly so since in respect of this supply (ie 22 July 2003), there is no doubt that M supplied the ecstasy to the applicant. Moreover it cannot be said that the starting point for the sentence imposed on M was manifestly inadequate. No such contention was advanced by the Crown in M's appeal against sentence. 32 That being so, it is necessary for this Court to re-sentence the applicant. In doing so the Court needs to have regard to the objective seriousness of the applicant's offence, to compare that with the objective seriousness of the offences for which M was sentenced, to have regard to the powerful subjective case of the applicant but to also take account of the important benchmark provided by the standard non-parole period for this offence. Taking those matters into account, I propose that the sentence passed by Nield DCJ on 4 February 2005 be quashed. In lieu thereof the applicant be sentenced to a non-parole period of imprisonment of 4 years to commence on 26 January 2005 and to expire on 25 January 2009 with a balance of term of 2 years to expire on 25 January 2011. I have reached that sentence by using 7 years and 6 months as the start point. This becomes 6 years after application of the 20% discount for his early plea of guilty. 33 The orders which I propose are: (1) Leave to appeal granted and appeal allowed. (2) The sentence passed by Nield DCJ on 4 February 2005 is quashed. (3) In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 4 years to commence on 26 January 2005 and to expire on 25 January 2009 with a balance of term of 2 years to expire on 25 January 2011. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.