Soames v The Queen - [2017] NSWCCA 158

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Soames v R [2017] NSWCCA 158
Hearing dates: 28 June 2017
Date of orders: 05 July 2017
Decision date: 05 July 2017
Before: Hoeben CJ at CL at [1]
R A Hulme J at [2]
Garling J at [3]
Decision:
(1)   Appeal upheld.
(2) Sentence imposed by English DCJ on 8 March 2013 with respect to the offence of supplying a prohibited drug (not less than commercial quantity of pseudoephedrine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 be quashed.
(3)   In lieu thereof, the appellant be sentenced to a term of imprisonment comprising a non-parole period of 3 years and 6 months commencing 8 January 2014 and expiring 7 July 2017, with a balance of term of 2 years and 6 months expiring 7 January 2020.
(4)   The appellant is not eligible for release prior to the expiration of his non-parole period of 7 July 2017.

Catchwords:
SENTENCING – parity – co-offenders re-sentenced on appeal to lesser sentences
SENTENCING – compelling subjective circumstances – distinction between appellant and co-offenders
APPEAL – against sentence – appeal upheld as to one count
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985
Cases Cited: Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423
Matthew Soames v Regina [2014] NSWCCA 158
Reese v R [2012] NSWCCA 47
Tan v R [2014] NSWCCA 96
Grover v R; Grover v R [2014] NSWCCA 315
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Matthew William Soames (Appellant)
The Crown (Respondent)
Representation:
Counsel:
T Gartelmann (Appellant)
T Smith (Crown Prosecutors)
Solicitors:
J Hanby (Appellant)
C Hyland - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/191750; 2011/259436
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 September 2012; 30 January 2013

Before:

English DCJ

File Number(s):

2011/191750; 2011/259436

Judgment

HOEBEN CJ at CL: I agree with Garling J.
R A HULME J: I agree with Garling J.
GARLING J: On 19 April 2017, for the reasons which he then gave, Davies J ordered pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) that the proceedings involving, Matthew Soames, were to be referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW): see Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423.
The basis for that enquiry was the appearance of disparity, or lack of due proportion, between the sentences imposed on Mr Soames, to whom I shall refer as the appellant, and those imposed on two co-offenders, Daniel Grover and Brian Grover.

Original Sentence

The appellant was sentenced in the District Court on 8 March 2013. There, he pleaded guilty to two charges, the first…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Soames v The Queen

Details

AGLC: Soames v The Queen [2017] NSWCCA 158
Case: [2017] NSWCCA 158
Decision Date: 05 July 2017

CaseChat Overview and Summary

In the case of Soames v The Queen, the appellant was convicted of drug trafficking and sentenced by the Supreme Court of Victoria. The appellant, along with two co-offenders, was involved in a drug trafficking operation. The legal issues in the case revolved around the disparity in sentencing between the appellant and his co-offenders, and the appellant's appeal against the severity of his sentence. Specifically, the appellant argued that his subjective circumstances warranted a lesser sentence, given the distinctions between his role and that of his co-offenders in the crime.

The court examined the principle of parity in sentencing, which requires that co-offenders receive sentences that reflect the relative seriousness of their individual roles in the crime. The court noted that the appellant's role was different from that of his co-offenders, who played more dominant roles in the operation. The appellant's involvement was described as peripheral, and his subjective circumstances, including his family responsibilities and lack of a prior criminal record, were considered compelling. The court found that the original sentence did not adequately account for these differences and circumstances.

Ultimately, the court upheld the appeal as to one count of the drug trafficking charge, reducing the appellant's sentence to reflect his lesser role and subjective circumstances. The court emphasised the need for sentences to be proportionate and tailored to the individual offender, taking into account both the nature of the offence and the personal factors of each defendant. The final orders included a re-sentencing of the appellant to a lesser term of imprisonment and a fine.

Orders