Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Soames v R [2017] NSWCCA 158 Hearing dates: 28 June 2017 Date of orders: 05 July 2017 Decision date: 05 July 2017 Before: Hoeben CJ at CL at [1] R A Hulme J at [2] Garling J at [3] Decision: (1) Appeal upheld. (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) 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) The appellant is not eligible for release prior to the expiration of his non-parole period of 7 July 2017. Catchwords: SENTENCING – parity – co-offenders re-sentenced on appeal to lesser sentences SENTENCING – compelling subjective circumstances – distinction between appellant and co-offenders APPEAL – against sentence – appeal upheld as to one count Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 Cases Cited: Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423 Matthew Soames v Regina [2014] NSWCCA 158 Reese v R [2012] NSWCCA 47 Tan v R [2014] NSWCCA 96 Grover v R; Grover v R [2014] NSWCCA 315 Texts Cited: Not Applicable Category: Principal judgment Parties: Matthew William Soames (Appellant) The Crown (Respondent) Representation: Counsel: T Gartelmann (Appellant) T Smith (Crown Prosecutors) Solicitors: J Hanby (Appellant) C Hyland - Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/191750; 2011/259436 Publication restriction: Not Applicable Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 21 September 2012; 30 January 2013 Before: English DCJ File Number(s): 2011/191750; 2011/259436 Judgment 1. HOEBEN CJ at CL: I agree with Garling J. 2. R A HULME J: I agree with Garling J. 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. 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. 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. 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. 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. English DCJ sentenced him as follows: 1. For the May offence, she imposed a sentence comprising a non-parole period of 3 years with a balance of term of 3 years to commence on 8 January 2013. The non-parole period expired on 7 January 2016 and the entire term on 7 January 2019. 2. For the June offence, a sentence was imposed comprising a non-parole period of 5 years commencing on 8 January 2014 and expiring on 7 January 2019 with a balance of term of 4 years expiring on 7 January 2013. 1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. A table setting out each of these sentences is reproduced below: District Court sentence: Daniel Grover District Court sentence: Brian Grover District Court Sentence: Appellant CCA re-sentence: Daniel Glover CCA re-sentence: Brian Glover May Offence 14 years with non-parole period of 8 years commencing 3/8/2012 13½ years with non-parole period of 7½ years commencing 3/8/2012 6 years with a non-parole period of 3 years commencing 8/1/2013 9½ years with non-parole period of 5 years commencing 3/8/2012 9 years with a non-parole period of 4½ years commencing 3/8/2012 June Offence 14 years with a non-parole period of 8 years commencing 3/8/2013 13½ years with a non-parole period of 7½ years commencing 3/8/2013 9 years with non-parole period of 5 years commencing 8/1/2014 9½ years with non-parole period of 5 years commencing 3/8/2013 9 years with non-parole period of 4½ years commencing 3/8/2013 1. 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. 2. It is against this current comparison that the appellant submits that on parity grounds his appeal ought be upheld. Appellant's Submissions 1. 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: 1. the appellant was allowed a discount for his guilty plea of 25%, whereas that discount was only 20% in the case of each of the Grovers; 2. the roles occupied by Daniel Grover and Brian Grover in the May and June offences were each significantly higher in criminality, as was their involvement in the drug syndicate, than that of appellant. The sentencing Judge found that each of Daniel and Brian Grover were, in essence, the principals of the offences and gave directions to the appellant with respect to his participation. The sentencing Judge described the role of the appellant as being a runner or courier, although she was not persuaded that he was a dupe; 3. each of the Grovers had committed prior criminal offences and were each on bail for the offence of possessing the precursor substance, at the time they committed the offences with which the appellant was charged. The appellant on the other hand, had no previous criminal record and was not on bail at the time the offences were committed. 1. 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. 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. 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. 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: "Of course, in any re-sentencing exercise in respect of the [June offence], the issue of the degree of accumulation with the [May offence] and the principle of totality will need to be considered. It is anticipated that a lesser overall effective sentence would be arrived at as a consequence." Discernment 1. 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: So far as I understand it, the authorities on the application of the parity principle in circumstances such as those with which this Court is presented in this case, provide the following principles: (1) The parity principle is an aspect of equal justice, which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: Lowe at 610-611 per Mason J; Postiglione at 301 per Dawson and Gaudron JJ, at 335 per Kirby J; Green v R; Quinn v R [2011] HCA 49 at 28 and 30 per French CJ, Crennan and Kiefel JJ; (2) Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: Postiglione at 336-7 per Kirby J, R v M (CA) (1996) 105 CCC (3d) 327 at [92] per Lamer CJ; (3) Hence, the discrepancy required to be identified between sentences is one which is not merely an arguable one, but one which is "marked", or "clearly unjustifiable", or "manifest ... such as to engender a justifiable sense of grievance" or else it "[appears] that justice has not been done": Lowe at 610 per Gibbs CJ (Wilson J agreeing), at 613 per Mason J, at 623-624 per Dawson J; Postiglione at 301 per Dawson and Gaudron JJ, at 323 per Gummow J, at 338 per Kirby J; R v Taudevin [1996] 2 VR 402 at 403 per Hampel AJA, at 404 per Callaway JA; DGM v R [2006] NSWCCA 296 at [46] per Latham J (McColl JA agreeing); Green at [31] per French CJ, Crennan and Kiefel JJ, at [105] per Bell J; (4) The elimination of an "unjustified" discrepancy is a matter of importance not just to the individual concerned, but to the administration of justice in the community more generally. This Court is therefore concerned not with whether an appellant actually feels a sense of grievance, that is, a subjective test, but rather whether, examined objectively, the sense of grievance is a justifiable one, namely that a reasonable mind looking over all of what happened would see that a grievance was justified. In other words, the matter is considered objectively: Lowe at 613 per Mason J; R v Kelly [2005] NSWCCA 280; 155 A Crim R 499 at [11] per Johnson J (Simpson J agreeing); Postligione at 338 per Kirby J; Green at [31] per French CJ, Crennan and Kiefel JJ. (5) In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance, a court: (i) must consider not just the head sentence, but all components of the sentence including the non-parole period and the total effective period that both offenders will serve: Postiglione at 303 per Dawson and Gaudron JJ, at 338 per Kirby J; (ii) must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offence, in order to identify whether a differential sentence was justified; Green at [30] per French CJ, Crennan and Kiefel JJ; (iii) ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: R v Chen [2002] NSWCCA 174; 130 A Crim R 300 at [289] per Heydon JA, Sully and Levine JJ; DGM at [58] per Latham J (McColl JA agreeing); Kelly at [12] per Johnson J (Simpson J agreeing); Green at [33] per French CJ, Crennan and Kiefel JJ. 1. 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. 2. 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. 3. 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. 4. 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. 5. The June offence is in a different category. 6. 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. 7. 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. 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: "13. In relation to Count 2, the drug in question was, once more, pseudoephedrine. This time the amount of drugs was 22.6 kilograms. 14 The appellant collected a rental car, paid for by Brian Grover, and drove, with Brian Grover, to a café owned by Brian Grover. Daniel and Brian Grover, together with the appellant, entered a shipping container and later emerged with a bag that was placed in the hire car. The appellant then drove the hire car away, travelling to the agreed point of sale. 15 The bag contained eight resealable bags containing 'cold and flu tablets' with the symbol '3K'. The symbol, 3K, was written on the outside of each bag. 16 The appellant admitted knowledge of the tablets; that they could be used to make drugs; and he was to be paid 'a couple of thousand dollars' to drive them to Tweed Heads." 1. 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. 2. Of his role in the syndicate, her Honour said: "As to where in the chain of command this offender falls, clearly he was not a principal. Daniel and Brian Grover are said to be the principals. However, he was certainly not at the lower end of the chain like his father, nor Jennifer Cooke. … This offender of course also engaged in this illegal activity purely for financial gain." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. I propose the following orders: 1. Appeal upheld. 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. 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. The appellant is not eligible for release prior to the expiration of his non-parole period of 7 July 2017. ********** 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. Decision last updated: 06 July 2017