Matthew Soames (the applicant) applies pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into sentences imposed on the applicant in the District Court on 8 March 2013 by English DCJ. The basis for the inquiry is said to be the appearance of disparity or lack of due proportion between the sentences imposed on the applicant and those imposed on two co-offenders, Daniel Grover and Brian Grover.
[3]
The offences
The applicant was charged with, and pleaded guilty to, two offences of knowingly taking part in the supply of a prohibited drug in not less than the large commercial quantity. The first offence took place on 24 May 2011 and the second offence on 10 June 2011. The drug concerned was the precursor drug pseudoephedrine in tablet form.
Police had been investigating the supply of pseudoephedrine in the North West Metropolitan region and were investigating, in particular, two brothers, Daniel and Brian Grover. They were working in conjunction with two cousins in Queensland, Matthew Grover and Darren Grover.
Matthew Grover informed Brian Grover by telephone that he was ready to purchase 24 kilograms of pseudoephedrine tablets at a price of $100,000. The phone call was intercepted by police.
Daniel and Brian Grover sourced the 24 kilograms of pseudoephedrine tablets and the applicant was tasked with picking up the tablets. He did so and kept them in the car that was parked at his house overnight.
The applicant spoke to Daniel Grover late in the evening on 23 May 2011 and informed him that he had collected the tablets. The applicant was instructed to weigh the bags. The applicant was unable to travel up to the North Coast so it was agreed with Brian Grover that the applicant's father, William Soames, would take the tablets to the North Coast.
Problems developed during the journey relating to how the tablets were packaged. There was frequent contact between the applicant and the Grovers during the trip which involved, amongst other things, changing the meeting point with the ultimate purchaser. The applicant remained in contact with his father and the Grovers throughout the whole trip. The money paid for the tablets was brought back to Sydney by William Soames.
On 10 June 2011 Daniel and Brian Grover sourced 22 kilograms of pseudoephedrine. The applicant was again involved both as to the collection of the tablets, dividing them into three kilogram lots for the purpose of sale and with the intention that the applicant would drive the tablets to Tweed Heads where the sale to Matthew Grover would take place.
The applicant and the Grovers in Sydney were under police surveillance. The applicant was followed by the police as he drove up the Pacific Highway and the applicant was pulled over at Heatherbrae (just south of Raymond Terrace) where he was arrested.
[4]
The applicant's sentence
The applicant was sentenced by English DCJ on 8 March 2013. Her Honour found that the applicant participated in the enterprise at the direction of Daniel Grover and Brian Grover, and performed the role of a "runner or courier". The applicant was aged 33 years at the time of the sentence and had no record of prior convictions. A discount of 25% was allowed for his early pleas.
The applicant was sentenced to imprisonment for the May offence for a term of six years commencing 8 January 2013 with a non-parole period of three years expiring 7 January 2016. For the June offence he was sentenced to a term of imprisonment of nine years commencing 8 January 2014 with a non-parole period of five years expiring 7 January 2019. The effective sentence was an overall term of ten years with a non-parole period of six years.
At the time the applicant was sentenced his father William Soames had been sentenced as had another person, Jennifer Cook, who was charged only with money laundering and not drug supply. Her Honour did not sentence Daniel Grover and Brian Grover until 16 May 2013.
[5]
The co-offenders' sentence
Both Daniel Grover and Brian Grover were charged with and pleaded guilty to three counts of supplying a prohibited drug not less than the large commercial quantity. The first two offences related to the same supplies with which the applicant was charged.
Notwithstanding that Daniel Grover and Brian Grover became aware that the applicant had been arrested during the transportation of the second quantity of drugs, they commenced to source a further 24 kilograms of cold and flu tablets for supply to another purchaser in Queensland. This was done in conjunction with another cousin from Queensland, Darren Grover.
The tablets were sourced and came into the possession of Darren Grover. The participants were under police surveillance and all parties involved were arrested shortly thereafter.
Daniel Grover and Brian Grover were sentenced by English DCJ on 16 May 2013. Her Honour found that the moral culpability of those offenders was of a very high order indeed. Both Daniel Grover and Brian Grover had been arrested and charged with offences involving the purchase of tablets including purchasing false names between May 2009 and February 2010. They were charged and released on bail on 3 February 2011 and then committed the three supply offences whilst on bail.
Brian Grover had a number of convictions in New South Wales, mostly for driving related offences, larceny, goods in custody, malicious damage and entering enclosed lands. He appeared to have been placed on supervised bonds and ordered to perform community service work. However, his Community Service Order was revoked and he was placed on a suspended sentence.
Daniel Grover had criminal antecedents for driving offences, obtaining a benefit by deception, stealing motor vehicle, offensive language, assault police, malicious damage, larceny, shoplifting, common assault, contravening an Apprehended Domestic Violence Order, possessing a precursor intended to be used in the manufacture of prohibited drugs and possessing house breaking equipment. He had been given various forms of conditional liberty but had also been sentenced to full time custody.
Judge English said that Brian Grover's antecedents did not disentitle him to leniency but because Daniel Grover had spent time in custody for offences of a like nature previously his entitlement to leniency was somewhat diminished.
Her Honour then dealt with the issue of parity because she had already sentenced William Soames, the applicant and Jennifer Cook. Her Honour discussed the sentences imposed on those persons and aspects of their subjective circumstances. She then went on to say this:
These offenders are well up that chain, as I have indicated, and capable of accessing significant quantities of bulk pseudoephedrine, arranging for its collection, warehousing by others albeit only overnight, negotiating price, the place of delivery, the courier and receiving or anticipating receiving significant sums of money upon the successful completion of the deals as demonstrated by the facts in respect to the first successful transaction on 24 May 2011 at a time when they were on conditional liberty for an offence of a like nature and with a far greater degree of criminal antecedents than their co-offenders.
Her Honour sentenced Daniel Grover as follows:
(1) For the supply offence committed on 24 May 2011, a non-parole period of eight years commencing 3 August 2012 expiring 2 August 2020 with an additional term of six years;
(2) For the supply offence committed on 10 June 2011, a non-parole period of eight years commencing 3 August 2013 expiring 2 August 2021 with an additional term of six years;
(3) For the supply offence committed on 2 August 2011, a non-parole period of eight years commencing 3 August 2014 expiring 2 August 2022 with an additional term of six years.
It can be seen that for the two supply offences for which the applicant was also sentenced the overall sentence for Daniel Grover was a non-parole period of nine years with a total term of 15 years.
Brian Grover was sentenced as follows:
(1) For the supply offence committed on 24 May 2011, a non-parole period of seven years and six months commencing 3 August 2012 and expiring 2 February 2020 with an additional term of six years;
(2) For the supply offence committed on 10 June 2011, a non-parole period of seven years and six months commencing 3 August 2013 and expiring 2 February 2021 with an additional term of six years;
(3) For the supply offence committed on 2 August 2011, a non-parole period of seven years and six months commencing 3 August 2014 and expiring 2 February 2022 with an additional term of six years.
The overall term for the two offences in respect of which the applicant was charged was a non-parole period of eight years and six months with a total term of 14 years and six months.
Each of Daniel Grover and Brian Grover was also sentenced to a fixed term of imprisonment for possessing a precursor for the manufacture of a prohibited drug and in each case the first supply offence commenced 12 months after the fixed term commenced.
[6]
Appeals
The applicant appealed against his sentence to the Court of Criminal Appeal. There were a large number of grounds but two are relevant to the present application. The first of those was that the sentences imposed were manifestly excessive both individually and collectively. The second was a ground that her Honour erred in not properly considering the issue of parity. The parity issue concerned only the sentences imposed on William Soames and Jennifer Cook. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal: Matthew Soames v Regina [2014] NSWCCA 158.
Brian Grover and Daniel Grover appealed against their sentences to the Court of Criminal Appeal. Both offenders appealed on a number of grounds including that the sentences imposed individually and collectively were manifestly excessive. The Court upheld the manifest excess grounds: Grover v R; Grover v R [2014] NSWCCA 315.
Daniel Grover was resentenced as follows with the sentence imposed for the possession count unaltered:
(1) For the first supply offence on 24 May 2011 a sentence of imprisonment of nine years and six months with a non-parole period of five years commencing 3 August 2012 and expiring 2 August 2017;
(2) For the supply offence committed on 11 June 2011, a sentence of imprisonment of nine years and six months with a non-parole period of five years commencing 3 August 2013 and expiring on 2 August 2018;
(3) For the supply offence committed on 2 August 2011 a sentence of imprisonment of nine years and six months with a non-parole period of five years commencing on 3 August 2014 and expiring on 2 August 2019.
The overall sentence for the two supply offences with which the applicant was involved was an overall sentence of ten years and six months with a non-parole period of six years.
Brian Grover was resentenced as follows with the sentence imposed for the possession count unaltered:
(1) For the supply offence committed on 24 May 2011 a sentence of imprisonment of nine years with a non-parole period of four years and six months commencing 3 August 2012 and expiring 2 February 2017;
(2) For the supply offence committed on 11 June 2011, a sentence of imprisonment of nine years with a non-parole period of four years and six months commencing 3 August 2013 and expiring on 2 February 2018;
(3) For the supply offence committed on 2 August 2011 a sentence of imprisonment of nine years with a non-parole period of four years and six months commencing on 3 August 2014 and expiring on 2 February 2019.
The overall sentence for Brian Grover for the two relevant drug supply offences was one of ten years with a non-parole period of five years and six months.
The applicant complains of the disparity as the result of the reduction by the Court of Criminal Appeal of the sentences of Daniel and Brian Grover. The applicant is precluded from seeking leave to appeal to the Court of Criminal Appeal other than by recourse to s 78 of the C(A&R) Act: Lowe v R [2015] NSWCCA 46.
[7]
Legislation
Relevant provisions of the Act are these:
74 Definitions
(1) …
(2) In this Part, a reference to a review of, or an inquiry into, a conviction or sentence includes a reference to a review of, or an inquiry into, any aspect of the proceedings giving rise to the conviction or sentence.
78 Applications to Supreme Court
(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.
(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.
79 Consideration of applications
(1) After considering an application under section 78 or on its own motion:
(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or
(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:
(a) it appears that the matter:
(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
(ii) has previously been dealt with under this Part or under the previous review provisions, or
(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or
(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
…
[8]
Legal principles
The legal principles governing these applications are now reasonably well known. The inquiry is not whether there is a doubt or question as to the convicted person's guilt or, here, as to the sentence (Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [29]-[31]) but whether there appears to be a doubt or question: Buttrose v Attorney General of New South Wales [2015] NSWCA 221 at [16]. The requisite "doubt or question" was said to be something which might cause unease: Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 at 48.
In Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Johnson J said:
[6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].
[7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19].
[8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9].
Some Other Features of the Jurisdiction
[9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.
Having determined whether it appears that there is a doubt or question the Court should then consider the matters in s 79(3) including, relevantly for the present matter, whether the matter has been fully dealt with in proceedings already.
[9]
Consideration
The present application is not opposed by the Attorney-General. The Attorney submits that it is open to be satisfied that it appears there is a doubt or question concerning the asserted disparity between the sentences imposed on the Applicant and those imposed on Daniel and Brian Grover. Although the application is not opposed it is still necessary for me to form the view that it appears there is a doubt or question before giving a direction or referral under s 79(1).
The final position of the sentences for the applicant and the Grover brothers is this:
(a) In respect of the May 2011 offending (count 1 for the applicant) he was sentenced to six years imprisonment with a three year non-parole period. Daniel Grover was imprisoned for 9.5 years with a five year non-parole period and Brian Grover was sentenced to nine years imprisonment with a 4.5 year non-parole period.
(b) In respect of the June 2011 offending (count 2 for the applicant) he was sentenced to nine years imprisonment with a five year non-parole period. Daniel Grover was imprisoned for 9.5 years with a five year non-parole period and Brian Grover was sentenced to nine years imprisonment with a 4.5 year non-parole period.
There are three clear points of distinction between the applicant on the one hand and the Grovers on the other.
First, the applicant occupied a lower position in the hierarchy from that of the Grover brothers. The Sentencing Judge described him as a runner or courier although not a mere dupe. By contrast, the position of the Grovers by the Sentencing Judge was summarised in this way by Fullerton J in the Court of Criminal Appeal:
[45] When considering the sentences imposed on co-offenders (including William Soames and others) and their roles in the criminal arrangement, her Honour described the applicants as being:
"... well up that chain ... capable of accessing significant quantities of bulk pseudoephedrine, arranging for its collection, warehousing by others albeit only overnight, negotiating price, the place of delivery, the courier and receiving or anticipating receiving significant sums of money upon the successful completion of the deals ...".
Her Honour noted (at [64]) that it was not submitted that the Sentencing Judge's narrative description of the roles of the Grovers as suppliers was not available on the evidence. The Sentencing Judge had also said that their moral culpability was of a very high order indeed.
Secondly, the applicant had no prior convictions whereas both of the Grovers had convictions for a number of offences including, in Daniel Grover's case, an offence of possessing a precursor intended to be used in the manufacture of prohibited drugs for which he had been imprisoned.
Thirdly, both of the Grovers were on bail for offences associated with those in respect of which they were ultimately sentenced. The applicant was not on bail at the time he committed the offences.
Those three matters are significant particularly when the result of Brian Grover's appeal is that for the June 2011 offence he received the same head sentence and a lesser non-parole period than the applicant and Daniel Grover received the same non-parole period with a head sentence only six months longer than the applicant.
At the hearing of the Grover's appeal the Court found that the sentences imposed upon them were manifestly excessive because of particular errors made by the Sentencing Judge. In that regard Fullerton J said:
[63] On the appeal, the primary submissions of counsel directed to what were said to be the unjustifiably severe sentences on each of the supply counts, was tracked to the combined effect of error in the specification of the commercial quantity of methylamphetamine; a failure on the part of the sentencing judge to make a qualified finding of the extent of harm referable to the inferior quality of the tablets; and her Honour's flawed analysis of the authorities for comparative purposes such that, even after accounting for the feature of aggravation with each supply offence committed whilst the applicants were on bail, an assessment of objective seriousness of a "high order" (above the mid range) was not open on the evidence.
…
[65] … In this case, I am persuaded that the error identified by counsel in her Honour's nomination of a large commercial quantity of methylamphetamine, and what I am persuaded was an uncritical approach to quantification of the extent of harm, has resulted in error in her Honour's assessment of objective seriousness. Although this was serious, flagrant and repeated criminal offending by the applicants as suppliers of large quantities of stolen medications which they knew were to be used for the purposes of manufacturing significant quantities of methylamphetamine, absent error of the kind identified, it would seem to me to be properly characterised as mid range offending.
However, in the re-sentencing exercise no consideration was given to the sentences imposed on the applicant. Taking into account the three significant differences between the applicant and the Grovers identified earlier, in my opinion, there appears to be a doubt or question about the disparity in the sentences that resulted from that appeal and the earlier dismissal of the applicant's appeal. It would be open to the Court of Criminal Appeal to hold that the applicant had a justifiable sense of grievance about his sentence in the circumstances.
I am also satisfied the matters in s 79(3) do not lead to the view that the application should not be otherwise dealt with. The timing of the sentencing and the appeals means that the Court of Criminal Appeal has not had the opportunity of considering the question of parity as between the applicant and the Grovers. The applicant was first sentenced by Judge English. Next, the Grovers were sentenced by Judge English. The applicant appealed and his appeal was heard on 26 June 2014 and determined on 15 August 2014. Although parity was raised on his appeal it concerned only the sentence imposed on his father William Soames and that imposed on Jennifer Cooke. Thereafter, the Grovers' appeal was heard on 25 September 2014 and decided on 19 December 2014. The only parity issue was as between the Grover brothers. There was only a passing reference to the sentence imposed on the applicant at [26].
In those circumstances, the disparity in the sentences has not been fully dealt with.
[10]
Conclusion
Accordingly, I make the following order:
(1) Pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) the whole case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).
[11]
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Decision last updated: 19 April 2017