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Court of Criminal Appeal 28 July 2006

Sorbello v Regina

[2006] NSWCCA 225

Drugs
SENTENCE APPEAL PARITY

Citation: Sorbello v Regina [2006] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 28 July 2006
Judge(s): Tobias JA, McClellan CJ at CL, Hoeben J

Background

The applicant pleaded guilty to supplying a commercial quantity of MDMA (ecstasy) contrary to the Drug Misuse and Trafficking Act 1985. Police intercepted communications between the applicant and a suspected drug dealer referred to as "M," and on 22 July 2003 the applicant was stopped by police after collecting nearly 489 grams of ecstasy from M's home. Two further possession offences were taken into account on a Form 1.

The District Court sentenced the applicant to a non-parole period of five years, with a balance of term of three years, after applying a 20% discount for an early guilty plea. The sentencing judge used a starting point of ten years, equivalent to the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999.

The applicant appealed, arguing that the sentence was disproportionately harsh when compared with the sentence imposed on M. M, the supplier in the very transaction underpinning the applicant's offence, had been sentenced to eight years with a non-parole period of five years, also for drug supply offences. Despite receiving a longer head sentence, the applicant's starting point was markedly higher than M's.

  • Whether the principle of parity in sentencing required the applicant's sentence to be brought into closer alignment with the sentence imposed on M, even though they were not technically co-offenders in the same charge
  • Whether the disparity between the two sentences gave the applicant a legitimate grievance justifying appellate intervention
  • What the appropriate re-sentence should be, having regard to the objective seriousness of the offence, the applicant's strong subjective case, and the standard non-parole period as a benchmark

Decision

The Court of Criminal Appeal found that the parity principle applied even though the applicant and M were not formally charged as co-offenders. M was the supplier in the very transaction for which the applicant was sentenced, and the Court held that the principle of equal justice required that the applicant be treated no more severely than M. The starting point of ten years applied to the applicant, compared with approximately eight years and four months used for M, represented an unjustified disparity giving rise to a legitimate grievance.

The Court noted that the Crown had not challenged M's sentence as manifestly inadequate on M's own appeal, which reinforced that M's sentence could not simply be dismissed as an inadequate baseline. Given the nature of the supply transaction, where M was clearly the upstream supplier, treating the applicant more harshly at the starting point was difficult to justify.

Hoeben J, with whom Tobias JA and McClellan CJ at CL agreed, quashed the original sentence and re-sentenced the applicant. The Court adopted a starting point of seven years and six months, reduced to six years after the 20% guilty plea discount, yielding a non-parole period of four years. This reflected the applicant's powerful subjective case, including his unblemished prior record, chronic illness (psoriasis leading to arthritis), remorse, good prospects of rehabilitation, and the circumstances that led to his offending.

Orders Made

  • Leave to appeal granted and appeal allowed
  • The sentence imposed by Nield DCJ on 4 February 2005 was quashed
  • In lieu thereof, the applicant was sentenced to imprisonment with a non-parole period of 4 years commencing 26 January 2005 and expiring 25 January 2009, with a balance of term of 2 years expiring 25 January 2011

Key Takeaways

  • The parity principle in sentencing is not confined to formal co-offenders charged in the same proceedings; it extends to cases where another person's sentence arises from the same criminal transaction or related conduct.
  • A legitimate grievance sufficient to enliven appellate intervention can arise where the starting points used for two offenders involved in the same supply are materially inconsistent, even if their respective roles and charges differ.
  • Where the Crown has not appealed a related offender's sentence as manifestly inadequate, that sentence carries greater weight as a comparator in a parity argument.
  • Strong subjective circumstances, including prior good character, chronic illness, genuine remorse, and good rehabilitation prospects, remain relevant considerations in the re-sentencing exercise even for serious commercial drug supply offences.
  • The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 functions as a benchmark in the sentencing process rather than a mandatory minimum, and its weight is reduced where an early guilty plea has been entered.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A, 54A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Bree v R [2006] NSWCCA 124
- R v M [2005] NSWCCA 224