Citation: Regina v Soo [2005] NSWCCA 161
Court: New South Wales Court of Criminal Appeal
Date: 28 April 2005
Judge(s): Grove J, Howie J, Latham J
Background
The applicant was convicted in the District Court of eight counts under the Drug Misuse and Trafficking Act 1985, following a trial before Woods DCJ. The offences included supplying a large commercial quantity of methylamphetamine (over 1,000 grams when possession and agreed supply amounts were combined), supplying methylamphetamine on three occasions to a police informant for financial reward, and possessing various other drugs for supply including ecstasy, cannabis, cocaine, and lysergide. Police also found $134,400 in cash in a safe at the applicant's home.
The applicant had operated as the principal of a drug-selling network, dealing directly with an established customer base. He had no prior criminal record and was 35 years old at the time of sentencing. At trial, he raised duress as a defence, claiming the police informant had threatened him and his family, but this was rejected by the jury.
The District Court imposed a total sentence of 11 years and 6 months, with an aggregate minimum non-parole period of 7 years and 6 months. The applicant appealed, contending that two specific sentences and the overall sentence were manifestly excessive. He also sought to rely on a psychiatric report prepared after sentencing as fresh evidence.
Legal Issues
- Whether any individual sentences were manifestly excessive
- Whether the overall sentence was manifestly excessive, having regard to the degree of accumulation between counts
- Whether a psychiatric report prepared after sentencing should be admitted as fresh evidence on appeal
Decision
The Court rejected the application to admit the post-sentence psychiatric report as fresh evidence. The report had been prepared after sentencing and the Court found no sufficient basis to receive it in those circumstances.
On the question of individual sentences, Howie J (with whom Grove J and Latham J agreed) was not persuaded that any single sentence was manifestly excessive, though he acknowledged that the sentence for count 1 sat at the high end of the available range. The applicant's conduct was described as serious: he was the principal of a substantial drug supply operation, dealing directly with at least 21 identified customers over several weeks and holding drugs well in excess of the large commercial quantity threshold.
However, the Court found that the accumulation of sentences required adjustment. The three supplies to the police informant that formed the basis of count 4 (the section 25A offence) were part and parcel of the same overall supply offence in count 1, making full accumulation of those sentences unjustifiable. In addition, the degree of accumulation of count 1 on the individual supply counts (counts 5 to 9) was reduced. Together, these adjustments brought the total sentence to 10 years and 6 months with a minimum period of 6 years and 6 months.
The Court found special circumstances warranting a longer than usual balance of sentence on parole, consistent with the approach taken by the sentencing judge. To give effect to the recalculated sentence structure, the non-parole periods for counts 1 and 4 were each reduced to 6 years, running from a revised commencement date of 30 April 2003.
Orders Made
- Leave to appeal granted; appeal allowed in part
- Sentence for count 1 confirmed but to date from 30 April 2003, with a non-parole period of 6 years expiring 29 April 2009
- Sentence for count 4 confirmed but to date from 30 April 2003, with a non-parole period of 6 years expiring 29 April 2009
Key Takeaways
- A psychiatric report prepared after sentencing will not automatically be received as fresh evidence on appeal; the Court of Criminal Appeal declined to admit such a report in these circumstances.
- Where multiple offences form part of the same criminal enterprise, full accumulation of sentences may be unjustified. The Court found that the section 25A supply offences were sufficiently connected to the large commercial quantity offence that running them consecutively overstated the applicant's overall criminality.
- No single sentence was found to be manifestly excessive despite the sentence for the principal count sitting at the high end of the range, given the applicant's role as the direct operator of a substantial supply network.
- Accumulation of sentences remains a legitimate tool where offending spans distinct acts, but courts will scrutinise the degree of overlap between the factual bases of individual counts.
- The Court of Criminal Appeal confirmed special circumstances existed (justifying a longer parole period than the statutory norm), consistent with the finding at first instance.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, 33(3)
Cases:
- R v Walsh [2004] NSWCCA 435
- R v Goodwin (1990) 51 A Crim R 238
- R v Fordham (1998) 98 A Crim R 359