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Court of Criminal Appeal 15 August 2014

Matthew Soames v Regina

[2014] NSWCCA 158

Drugs
CRIMINAL LAW APPEAL SENTENCE PRINCIPLE OF TOTALITY MANIFEST EXCESS AND PARITY PRINCIPLES DISCUSSED

Citation: Soames v Regina [2014] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 15 August 2014
Judges: Hoeben CJ at CL, Rothman J, Beech-Jones J

Background

The applicant pleaded guilty in the District Court to two charges of knowingly taking part in the supply of a prohibited drug, contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985. Both offences involved pseudoephedrine, a precursor used in the manufacture of methyl-amphetamine, in quantities of approximately 24 kilograms and 22.6 kilograms respectively.

For the first offence, the applicant acted as a communicator and minor organiser between associates and his father, who physically transported the tablets on his behalf. For the second offence, the applicant drove a hire car containing the drug to a point of sale. His motivation, he said, was to raise funds for his brother's legal fees following an unrelated arrest.

The District Court sentenced the applicant to a total of six years non-parole period and a further four years. The sentences were accumulated by 12 months. The applicant sought leave to appeal, arguing errors in the application of special circumstances, the totality principle, parity, and manifest excess.

  • Whether the sentencing judge erred in not giving sufficient effect to her findings of special circumstances when fixing the non-parole periods
  • Whether the judge was required to apply a consistent ratio of 50% between the non-parole period and the additional term across both individual sentences and the aggregate sentence
  • Whether the sentencing judge failed to apply the totality principle
  • Whether the sentences were manifestly excessive, individually or collectively
  • Whether the judge failed to properly address parity with co-offenders

Decision

Special circumstances and ratio (Grounds 1 and 1(a)): Rothman J rejected the argument that the sentencing judge had failed to give effect to her finding of special circumstances. Her Honour had applied a 50% ratio for Count 1 and a 55% ratio for Count 2, both lower than the statutory default. The overall non-parole period represented 60% of the head sentence. The Court confirmed that sentencing is a fundamentally intuitive exercise and does not require arithmetically precise application of percentages across individual counts and the aggregate sentence.

Totality (Ground 3): The Court found no error in the application of the totality principle. The sentencing judge had considered the cumulative effect of the sentences by accumulating them only partially (by 12 months) rather than fully. The resulting overall sentence was proportionate to the overall criminality involved.

Manifest excess and incommensurability (Grounds 4, 4(a) and 4(b)): The Court found no error in the characterisation of the first offence as "just below mid-range" and the second as "mid-range." The two offences involved comparable quantities of pseudoephedrine, and the difference in sentence reflected the applicant's greater direct involvement in the second offence, where he physically transported the drugs. The sentences were not manifestly excessive given the objective seriousness and the very large quantities of a precursor drug involved.

Parity (Ground 5): The Court dismissed the parity argument. The applicant sought to draw comparison with a co-accused involved in money laundering charges and with his father, who received a more severe sentence. The parity principle applies only where all other things are relevantly equal. The Court applied the objective test from Sinkovich v Regina, asking whether a reasonable mind would regard the applicant's sense of grievance as justified. It found no rational basis for the parity complaint and rejected this ground.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Sentencing is a fundamentally intuitive exercise: the Court of Criminal Appeal confirmed that no arithmetically precise or constant ratio between non-parole periods and additional terms is required, whether applied to individual counts or the aggregate sentence.
  • A finding of special circumstances does not produce a fixed mathematical outcome. The sentencing judge's obligation is to apply the purposes of sentencing under s 3A of the Crimes (Sentencing and Procedure) Act 1999, not to derive a uniform percentage across all components of a sentence.
  • Under the totality principle, partial accumulation of sentences can properly reflect the overall criminality involved without requiring full concurrency or full accumulation.
  • The parity principle operates only where all relevant circumstances are equal. Comparison with co-offenders charged with different offences, or who occupied materially different roles, will not ground a successful parity argument.
  • In dismissing all grounds, the Court reinforced that appellate intervention in sentencing requires demonstration of identifiable error, not merely a different view of the appropriate outcome, consistent with the principles in House v R and Markarian v R.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing and Procedure) Act 1999 (NSW), s 3A
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(2)

Cases:
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Jimmy v R (2010) 77 NSWLR 540
- Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Mill v R [1988] 166 CLR 59
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- R v Cramp [2004] NSWCCA 264
- R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90
- Sinkovich v Regina [2011] NSWCCA 90
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Wong v R [2001] HCA 64; (2001) 207 CLR 584