Matthew Soames v Regina

Court of Criminal Appeal (NSW)|2014-06-26|Before: Hoeben CJ, Rothman J, Beech-Jones J

Judgment 1HOEBEN CJ at CL: I agree with Rothman J. 2ROTHMAN J: Matthew Soames, the applicant, applies for leave to appeal against a sentence imposed upon him by the District Court on 8 March 2013. The applicant pleaded guilty to two charges, one for knowingly taking part in the supply of a prohibited drug, contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985, and the second being for supply of a prohibited drug, also contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985. 3For the first offence, the sentencing judge imposed a sentence of 3 years non-parole period, with a further 3 years. For the second offence, her Honour imposed 5 years non-parole period, with a further 4 years. The sentences were accumulated by 12 months, providing for an overall sentence of 6 years non-parole period and a further 4 years for which the applicant is eligible for parole.

Grounds of Appeal 4The applicant relied on an initial version of the grounds of appeal (filed 2 October 2013), which grounds of appeal were supplemented at or just prior to the hearing, leave to file same being granted by the Court. 5The initial grounds of appeal were: (1)Her Honour erred in not giving effect to her findings of special circumstances; (2)Her Honour gave insufficient weight to the applicant's special circumstances, dependent family, youth, rehabilitation since offending and the accumulative effect of the sentence; (3)Her Honour failed to apply the totality principle in relation to the sentences imposed; (4)The sentences imposed were manifestly excessive, collectively and individually; (5)Her Honour erred in not properly considering the issue of parity when sentencing the applicant. 6The additional grounds of appeal were in the following terms: 1(a): Her Honour erred in not applying a constant ratio of 50% with respect to the non-parole period and additional term as to Count 2 and the total non-parole period and total sentence, having applied it to Count 1. 4(a): The sentence imposed in respect of Count 2 was incommensurate with the sentence imposed in respect of Count 1, having regard to the findings of similar levels of criminality with respect to each count; 4(b): Her Honour erred in finding that the first offence and the second offence were "just below mid-range" and "mid-range" respectively.

Facts 7The sentence proceeded on agreed facts, prepared by the Crown Prosecutor, which formed part of Exhibit A, the Crown Bundle on sentence. The following facts were taken essentially from those agreed facts, which were summarised by her Honour, the sentencing judge, in her Remarks on Sentence. All of the detail is not relevant to the sentence appeal and I will briefly summarise the most pertinent remarks. 8Conduct for which the applicant was convicted in relation to Count 1 involves a transaction of 24 kilograms of pseudoephedrine tablets. Pseudoephedrine is used in the manufacture of methyl-amphetamine. 9Three associates of the applicant (Brian, Daniel and Matthew Grover) instructed the applicant to collect the tablets and deliver them to an address in the North Coast of New South Wales. 10For reasons related to his wife's unavailability and the need to undertake family duties, the applicant was unable to travel to the North Coast to deliver the precursor drug and the applicant asked his father to deliver it for him, which he did. The father drove the applicant's motor vehicle and during the journey was contacted by the applicant who had been in contact with one or other of the associates regarding various issues with the tablets (for example, packaging, weight and like issues). The communication also occurred in reverse, namely, a response from the applicant's father to the applicant and then to the other associate. 11In this offence, the applicant acted as a communicator between the three associates and his father. Further, as is obvious from the foregoing, the applicant acted in some minor ways as an organiser or arranger of incidental issues. 12The father delivered the drugs, picked up monies for payment for the drugs and returned to Sydney, where upon he was arrested. The father made it clear he was acting on behalf of his son and did so because the applicant needed the money and the father did not want the applicant to get into trouble. 13In relation to Count 2, the drug in question was, once more, pseudoephedrine. This time the amount of drugs was 22.6 kilograms. 14The applicant 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 applicant, entered a shipping container and later emerged with a bag that was placed in the hire car. The applicant then drove the hire car away, travelling to the agreed point of sale. 15The 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. 16The applicant 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. 17There are subjective factors relevant to the sentence and, given the grounds of appeal, it is appropriate that I briefly summarise those subjective circumstances. The offender was 31 at the time of the commission of the offence; he left school after completing the School Certificate; and has been employed in unskilled labouring and in the retail industry. 18Late in 2008, his brother was arrested for unrelated matters and the applicant wanted to raise funds to assist with the payment of his brother's legal fees. That was the motivation for the criminal enterprise. 19It seems that the applicant was depressed as a consequence of what he considered to be an unjust accusation against his brother. His brother was subsequently convicted. 20The applicant maintains that he was unaware of the criminal involvement in drugs of any of the Grover brothers. 21The applicant's partner works as a nurse and, for that purpose, works rotating shifts and is the primary income source for the family. The applicant is the sole source of childcare when his partner or her family cannot accommodate the needs of the children. The applicant's partner is struggling with income and childcare arrangements and has been, since prior to the time of sentencing when the applicant had been in custody, bail refused. 22There is, despite reasonable attempts having been made to manage, real fear (that existed at the time of the sentencing hearing) that the family may lose their home as a consequence of the incarceration of the applicant. 23Since his imprisonment, the applicant has completed a project dealing with the dangers of drugs and its effect upon the community, including the use of pseudoephedrine in the manufacture of methyl-amphetamine. 24No complaint is made as to the summary, by the sentencing judge, of the subjective circumstances applicable to the applicant. The applicant has no prior record and is entitled to a degree of leniency associated with first offences.

Grounds 1 and 1(a): Special Circumstances 25The original grounds of appeal, which alleged error on the part of the sentencing judge by not giving effect to findings of special circumstances, is simply untenable. 26Her Honour came to a conclusion that special circumstances existed, warranting a departure from the statutorily prescribed ratio between non-parole period and the remainder of the term. As a consequence of that finding her Honour fixed a non-parole period for Count 1, which was 50% of the total term of imprisonment and a non-parole period for Count 2, which was 55% of the total period. 27The overall sentence imposed reflected a ratio under which the non-parole period was 60% of the head sentence. In each case, the non-parole period is a shorter time of compulsory imprisonment than would have been imposed were her Honour to have implemented the statutory ratio, instead of her Honour's finding that there were special circumstances. 28The additional ground 1(a) somewhat ingeniously seeks to overcome the fundamental flaw in the original submission by drawing attention to the discrepancy in ratios implemented in relation to Counts 1, 2 and the overall sentence. 29The difficulty with the submission in ground 1(a), being that her Honour erred in not applying a constant ratio of 50% with respect to the non-parole period and additional term as to both Count 2 and the total sentence, is that non-parole periods are not the result of an arithmetically precise application of percentages. The task of the sentencing judge is fundamentally intuitive and must adhere to the purposes in s 3A of the Crimes (Sentencing and Procedure) Act 1999. 30Ultimately, the task of a sentencing judge, when imposing a custodial sentence, is to assess an appropriate sentence, pursuant to the implementation of the purposes of sentencing established in s 3A of the Crimes (Sentencing and Procedure) Act and discussed by the High Court in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. Those purposes are served by the determination and imposition of a non-parole period that is appropriate, overall, to the offence committed and the offender who has committed it. 31Special circumstances do not permit a court to reduce a non-parole period below that which is necessary to reflect the purposes of sentencing, earlier described, including punishing the offender and acting as a deterrent to others. As a consequence, notwithstanding the finding that special circumstances exist, a sentencing judge may not reduce the non-parole period ratio at all, or may reduce it only by a small amount: R v Cramp [2004] NSWCCA 264. 32The finding of special circumstances is a "discretionary finding of fact": R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90. 33Two obvious examples make clear the fallacy associated with the submission contained in ground 1(a). First, this Court has often stated that special circumstances may be disclosed because of the effect of accumulation. Such special circumstances are reflected, usually, by a reduction in the non-parole period in the sentence imposed that will operate last in time. Thus, in those circumstances, only that sentence may be the subject of a reduction in the non-parole period from the statutory prescription and the percentage ratio is not reflected in any other sentence. 34Further, the purpose of a non-parole period is the imposition of a sentence that is appropriate and the recognition that a period of parole may need to be longer than might otherwise be prescribed by the legislature. If the sentencing judge were to take the view that, in a hypothetical example, a longer period of parole should be available, she or he may fix a period of, say, 4 years and that period will have a different ratio to each of the offences and head sentences that may be otherwise imposed. 35In short, there is no principle that requires a sentencing judge to impose a uniform ratio between the non-parole period and head sentence for each of the offences for which a sentence is being imposed. This ground of appeal must fail.

Ground 2: Insufficient Weight to Subjective Circumstances 36Much of the discussion in relation to grounds 1 and 1(a) is relevant to an understanding of why this ground must also fail. The fixing of special circumstances is part of the intuitive synthesis in sentencing offenders. 37Her Honour found special circumstances, which, as earlier stated, is "a discretionary finding of fact". The applicant was a first offender, which required some special consideration; he had a dependent family; and there were good prospects of rehabilitation. But none of them mandate a particular finding either of special circumstances or of special circumstances reflected in a particular non-parole period. 38In my view, error of the kind that is necessary to disturb the fixing of a sentence has not been disclosed by any matter put on behalf of the applicant under this ground: see House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505, per Dixon, Evatt and McTiernan JJ. 39One other aspect should be the subject of note in relation to this ground. The applicant relies on his "youth". The applicant was 31 years of age at the time of the commission of the offence and 33 years of age at the time at which the sentence was imposed. In my view, no special consideration is deserved in relation to the applicant's age.

Ground 3: Totality 40As submitted by the applicant, it is uncontroversial that a sentencing judge is bound by the principle of totality in determining an overall sentence that is just and appropriate to the total criminality of the offending behaviour. 41Partly, the proposition is uncontroversial because the sentencing judge remarked (Remarks on Sentence at 13-14), that "there must be partial accumulation of the sentences to reflect the principles of totality". Her Honour, expressly, applied those principles and was, clearly, mindful of them. 42As such, the ground of appeal must necessarily be read and considered not as alleging a failure to apply the principle, but as an allegation that the principle was misapplied. The difficulty with such a submission is that, as earlier explained, the intuitive synthesis exercise involved in sentencing an offender is "the exercise of a judicial discretion by the court imposing it": House v R, supra. 43As such, an appeal against such an exercise is constrained by well-established principles. It is insufficient for the Court, sitting on appeal, to consider that a different sentence would have been imposed from that of the sentencing judge. 44The foregoing should not be taken as an indication that I consider a different sentence is warranted. Rather, it points to the well-known proposition that the Court of Criminal Appeal sits as a court of error and an applicant for leave to appeal is required to show that the sentencing judge has acted upon wrong principle; allowed extraneous or irrelevant matters to guide the exercise of discretion; has mistaken the facts; has not taken into account a material consideration; or some other aspect that satisfies the Court that the determination made by the sentencing judge should be the subject of intervention. Such an error can be disclosed by express statements of the sentencing judge, or because the result reflects, manifestly, error of that kind. 45The principle to be applied is that any offender who is to be sentenced must be sentenced in a manner that reflects the total criminality of the crimes committed. This can be done in a number of ways but most commonly it is done by an application of the process described by the High Court in Pearce v R [1998] HCA 57; (1998) 194 CLR 610, namely, the fixing of a separate sentence for each offence for which a sentence is to be imposed and determining the degree of concurrency or accumulation. 46In Mill v R [1988] HCA 70; (1988) 166 CLR 59, the High Court made clear that the totality principle is a recognised principle of sentencing formulated to assist a court in the discretionary exercise that occurs when sentencing an offender: Mill at 62. The circumstances with which the High Court was dealing in Mill was the imposition of a sentence in one State, many years after the offence had been committed, in circumstances where the offender had committed other offences in another jurisdiction and served sentences that had delayed the imposition of the impugned sentence. The High Court took the view that the proper approach was to enquire what would have been the total sentence imposed, if all the sentences in each of the jurisdictions had been committed and sentenced at the one time. Again, it required an assessment of the totality of the criminal conduct and an appropriate sentence for that totality. 47In Johnson v R [2004] HCA 15; (2004) 78 ALJR 616, the High Court made clear that there was no inconsistency between the approach adopted by it in Mill, supra, and in Pearce, supra. 48As described by the High Court (Gummow, Callinan & Heydon JJ), the approach to sentencing in relation to multiple offences is to fix appropriate penalties for each offence, then consider the application of the totality principle and, particularly, whether there needs to be an adjustment to either of the sentences imposed to achieve the total effective sentence consistent with the application of the principle. This can be done either by lowering one of the sentences or by the degree to which the sentences are rendered concurrent or cumulative: Johnson at [12]. 49The sentencing judge, in this matter, fixed, subject to what may follow from the next ground, an appropriate sentence for each count and accumulated the sentences by 12 months. Her Honour plainly had in mind the issue of totality and the fixing of an overall sentence that reflected her Honour's view of the criminality of the conduct as a total concept. 50Nothing has been put that discloses an error of the kind that warrants intervention by this Court and the ground must fail.

Grounds 4, 4(a) and 4(b): Manifest Excess, Either Individually or Collectively 51The grounds of appeal in this regard agitate manifest excess; an inconsistency between the sentence imposed in relation to Count 2 and Count 1 that is irrational or inappropriate; and an error in fact finding in assessing the objective seriousness of the offences as "just below mid-range" and "mid-range" respectively. I will deal with the issues in reverse order. 52Her Honour, in the course of her Remarks on Sentence, classified the objective seriousness of the offending as just below mid-range for the first offence and mid-range for the second offence. 53The offence under s 25(2) of the Drug (Misuse and Trafficking) Act carries a maximum sentence of life imprisonment and a standard non-parole period of 15 years. Her Honour imposed a sentence, as earlier described, of 3 years non-parole period, with a further 3 years for the first offence and 5 years non-parole period, with a further 4 years for the second offence, accumulating them by 12 months and providing for an overall sentence of 6 years non-parole period and a further 4 years for which the applicant is eligible for parole. 54As a consequence of the foregoing recitation of the maximum sentences and standard non-parole period as compared to the sentences imposed, it is obvious that her Honour did not impose a sentence that was "mid-range" or "just below mid-range", if one were referring, in that taxonomy, to the totality of offences caught by the provisions of s 25(2) of the Drug (Misuse and Trafficking) Act. 55In the context of the discussion by her Honour in her Honour's Remarks on Sentence, it is obvious that her Honour was referring to a mid-range offence for a courier in the drug trade caught by the provisions of s 25(2) of the Drug (Misuse and Trafficking) Act. If that were her Honour's intention, which, in my view, it was, then the description of the objective seriousness of the applicant's offence is relatively accurate and certainly open to her Honour. In my view, to suggest that her Honour was assessing the applicant's behaviour on the basis of the mid-range objective seriousness for all offences covered by s 25(2) of the Drug (Misuse and Trafficking) Act is to misunderstand her Honour's intention. In my view, her Honour's intention is as described above and is, on that basis, not amenable to intervention or interference. 56The complaint described in Ground 4(a) is, essentially, a complaint based upon alleged irrationality in the distinction in the sentence imposed for Counts 1 and 2 respectively. There are a number of difficulties for such an approach. First, it is not always legitimate to compare sentences imposed for separate offences, where the process being undertaken by the sentencing judge is one that must, by definition, be informed by the principles of totality, for which issue the earlier discussion above must be considered. 57Secondly, and most importantly, the conduct of the applicant in relation to Counts 1 and 2 was different. In Count 2, the applicant not only planned the exercise, he collected a hire vehicle for that purpose and undertook the delivery of the drugs, including picking up co-offenders. The drugs were not, ultimately, delivered, only because police intercepted the vehicle and the applicant prior to delivery. 58There was far greater involvement in the process in the second count than there was in the first count and her Honour reflected that in the sentence imposed for each. 59Lastly, the issue arises as to whether the sentence is manifestly excessive. Manifest excess derives from the principles for the intervention of an appellate court in the discretionary exercise of sentencing that were described by the High Court in House v R, supra. 60In order to disclose manifest excess, it is insufficient for an applicant to satisfy a court that it would have imposed a sentence that was different or less than that which is being impugned. There is no one correct sentence to be imposed. 61Rather, an applicant must demonstrate that the sentence sought to be overturned was "unreasonable or plainly unjust": see Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 325. Judges at first instance must be "allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected": Johnson v R, supra, at [26]; Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27]. 62It is necessary for an appellant, or applicant for leave to appeal, to show error in the sentence passed (either specific error or manifest error) and it is insufficient to justify intervention for an appellate court simply to come to the view that it would have exercised its discretion in a different manner: Markarian at [28]. 63The foregoing is not an insignificant hurdle. Nothing has been demonstrated that discloses her Honour did not sentence in accordance with the statutory regime in place, nor impose a sentence that was not open to her Honour on the material that was before her. In other words, the sentence imposed was neither unreasonable nor plainly unjust. 64In my view, this ground or these grounds must also fail.

Ground 5: Disparity 65The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 at [28]. The principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different: Green & Quinn at [28]; Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 608; Jimmy v R (2010) 77 NSWLR 540. 66In Green & Quinn, the Court (French CJ, Crennan and Kiefel JJ) said at [31] and [32]: "[31] Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender." The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. [32] A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment." 67The parity principle upon which the applicant relies deals with two other offenders. First, it draws a comparison with the applicant's father who, in relation to the same offence as Count 1, was given a heavier sentence than the applicant. Secondly, it relates to a comparison with Ms Cook. The above passage is sufficient to dispose of the comparison with Ms Cook. The circumstances of involvement in the offence, of age, background, criminal history and general character warrant Ms Cook's different treatment. 68Any sense of grievance that the applicant may feel towards the sentence imposed on Ms Cook is not justified. The analysis is objective; not subjective. Further, the sentence imposed upon Ms Cook was a sentence imposed for different offences, albeit within the one criminal enterprise with which the applicant was concerned. 69The "irrational disparity" between the sentence imposed on the applicant and on the applicant's father is not one upon which the applicant may rely. There are two reasons. First, the difference in sentence is not "irrational". It may have resulted from the different subjective circumstances of the applicant, compared to his father. Those subjective circumstances include the need to support the applicant's family, the relative youth of the applicant and the like. Further, the father was being sentenced for only one offence, while, as is made clear above, the applicant was being sentenced for two offences. Therefore, a comparison of one of the two sentences imposed upon the applicant with the only sentence imposed upon the applicant's father may not be wholly legitimate. 70Lastly, and most importantly, the applicant's father had imposed upon him a sentence that was more severe than the sentence imposed on the applicant. The parity principle may be used by an offender to argue for a lower sentence; it may not be used by an offender to argue for a higher sentence. If there be an irrational disparity between the sentence imposed upon the applicant compared to the sentence imposed upon the applicant's father, it is for the applicant's father to complain about it, because it is the applicant's father that has suffered adversely as a result. 71Notwithstanding the foregoing comment, and despite the fact that the applicant does not rely upon it, I should note that a person with a less severe sentence may complain about the lack of parity, where the difference in the sentences imposed does not adequately reflect the relevant difference in the criminal conduct or the subjective circumstances. The applicant does not put that submission. 72Rather the applicant's written submission puts the opposite, namely, that "[the applicant's] level of involvement in the joint criminal enterprise did not extend significantly beyond that of Ms Cook or his father". I have already dealt with Ms Cook. Ms Cook was sentenced for money laundering charges, not drug supply. The applicant's father received a more severe sentence for the particular offence. 73In Sinkovich v Regina [2011] NSWCCA 90, the Court said: "[72] The parity principle of its very nature only applies if all other things are equal: R v Martin [2005] NSWCA 381 at [11]. That is not the case here. Lowe was charged with a significantly larger array of offences. This required an adjustment by way of accumulation and concurrency between those sentences so as to meet the principles of totality and proportionality. Lowe also had the advantage, which the applicant did not, of a 25% discount in respect of all the offences. [73] The test for whether the necessary disparity exists, so as to justify the intervention of this court, is an objective one. In R v Wei Pan [2005] NSWCCA 114, Johnson J (with whom Giles JA and Hoeben J agreed) said: 34 The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community - the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v R (1984) 154 CLR 606 at 611 per Mason J. The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at paragraph 6. That statement of the parity principle has been applied in a number of subsequent decisions: Lewins v R [2007] NSWCCA 189 at [7], Nguyen v R [2008] NSWCCA 308 at [37] and Gurney v R; Willetts v R [2011] NSWCCA 48 at [83]." 74In my view, this ground has no rational basis and must fail.

Conclusion 75For the reasons outlined above, each of the grounds of appeal should be rejected. I propose that the Court make the following orders: (1)Leave to appeal granted; (2)Appeal dismissed. 76BEECH-JONES J: I agree with Rothman J.

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: 15 August 2014

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