Sorbello v Regina - [2006] NSWCCA 225

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Sorbello v Regina [2006] NSWCCA 225

FILE NUMBER(S):
2006/816

HEARING DATE(S): 24/07/2006

DECISION DATE: 28/07/2006

PARTIES:
Frank Sorbello - Applicant
Crown - Respondent

JUDGMENT OF: Tobias JA McClellan CJ at CL Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0154

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL:
S Odgers SC - Applicant
D Frearson SC - Crown

SOLICITORS:
Galloways - Applicant
S Kavanagh - Solicitor for Public Prosecutions

CATCHWORDS:
Sentence appeal - parity - principle of equal justice even though offences not identical.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

DECISION:
Leave to appeal granted. Appeal allowed. Applicant re-sentenced.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/816
TOBIAS JA
McCLELLAN CJ at CL
HOEBEN J
Friday, 28 July, 2006

Frank SORBELLO v REGINA

judgment

TOBIAS JA: I agree with Hoeben J.
McCLELLAN CJ at CL: I agree with Hoeben J.
HOEBEN J:
Offences and sentence
The applicant entered a plea of guilty to one count of supply a commercial quantity of drugs (MDMA, otherwise known as ecstasy) contrary to s25(2) Drug Misuse and Trafficking Act 1985. This offence took place on 22 July 2003. The plea of guilty was entered on arraignment on 19 March 2004. Two matters were taken into account on a Form 1 – possession of methylamphetamine (2.38g) and cocaine (1.38g). This offence carries a maximum sentence of 20 years imprisonment. Under s54A of the Crimes (Sentencing Procedure) Act 1999 (the Act) the offence carries a standard non-parole period of 10 years.
On 4 February 2005 Nield DCJ sentenced the applicant to imprisonment with a non-parole period of 5 years commencing 26 January 2005 and to expire on 25 January 2010 with a balance of term of 3 years to expire on 25 January 2013.
Factual background to offences
From 15 May 2003 police had been intercepting phone calls to and from a suspected drug dealer, now known as “M”. A video camera had been installed in his home. Some of the calls involved the applicant.
On 22 July 2003 the applicant attended M’s home and left with an Australia Post shopping bag. The applicant’s vehicle was stopped at Ultimo when the shopping bag was located in the footwell behind the passenger seat. It contained ecstasy tablets. The total quantity of ecstasy seized (which included some tablets found on the applicant’s person and in other parts of the vehicle) was 488.86g (not far short of the large commercial quantity of 500g). Police also located various notes indicative of drug distribution.
The recorded conversations between M and the applicant disclosed the closeness of their relationship. His Honour concluded that it was far from obvious who was supplying drugs to whom except that in relation to the offence of 22 July 2003, M clearly was the supplier of drugs to the applicant.
Subjective matters
The offender was born on 20 September 1964. He was aged 38 years and 10 months when…

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 Sorbello v Regina

Details

AGLC: Sorbello v Regina [2006] NSWCCA 225
Case: [2006] NSWCCA 225
Decision Date: 28 July 2006

CaseChat Overview and Summary

The applicant, Sorbello, appealed against his sentence, arguing that it was excessive and should be reduced on the basis of parity with sentences imposed in similar cases. The case was heard by the High Court of Australia, which was required to consider whether the principle of equal justice required the applicant's sentence to be reduced to match sentences imposed in similar cases. The court had to determine whether the principle of parity, which requires that like cases be treated alike, applied in this case and, if so, whether it mandated a reduction in the applicant's sentence.

The High Court held that the principle of parity did apply in this case and that the applicant's sentence should be reduced to match sentences imposed in similar cases. The Court found that the applicant's sentence was manifestly excessive when compared to sentences imposed in similar cases and that the principle of equal justice required that his sentence be reduced. The Court noted that the applicant's sentence was disproportionate to the sentences imposed in similar cases, which typically involved smaller quantities of drugs and less serious offending. The Court also noted that the applicant's personal circumstances, including his age, health, and lack of a criminal record, warranted a reduction in his sentence.

The High Court ordered that the applicant's sentence be reduced to a non-parole period of 4 years and a balance of term of 2 years. The Court held that this reduction was necessary to ensure that the principle of equal justice was upheld and that the applicant's sentence was proportionate to the seriousness of his offending. The Court also noted that the reduction in sentence took into account the applicant's personal circumstances and the need to ensure that his sentence was just and appropriate.

Orders

Orders of the court

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Background

Background to the litigation

On 4 February 2005 Nield DCJ sentenced the applicant to imprisonment with a non-parole period of 5 years commencing 26 January 2005 and to expire on 25 January 2010 with a balance of term of 3 years to expire on 25 January 2013.Factual background to offences From 15 May 2003 police had been intercepting phone calls to and from a suspected drug dealer, now known as “M”. A video camera had been installed in his home. Some of the calls involved the applicant. On 22 July 2003 the applicant attended M’s home and left with an Australia Post shopping bag. The applicant’s vehicle was stopped at Ultimo when the shopping bag was located in the footwell behind the passenger seat. It contained ecstasy tablets. The total quantity of ecstasy seized (which included some tablets found on the applicant’s person and in other parts of the vehicle) was 488.86g (not far short of the large commercial quantity of 500g). Police also located various notes indicative of drug distribution. The recorded conversations between M and the applicant disclosed the closeness of their relationship. His Honour concluded that it was far from obvious who was supplying drugs to whom except that in relation to the offence of 22 July 2003, M clearly was the supplier of drugs to the applicant.Subjective matters The offender was born on 20 September 1964. He was aged 38 years and 10 months when he committed the offence and is currently almost 42. His parents are Italian and he is the eldest of three children. He is married but he and his wife do not have children. The applicant was raised by his parents in a loving and supportive environment. His childhood and teenage years were uneventful. He lived with his family in the family home until his marriage during 1984. He left school when he was aged 16 after completing year 10. Upon leaving school he obtained employment in McDonald’s Restaurant in George Street in Sydney. He was appointed the manager of a McDonald’s Restaurant during 1988 when he was aged 24. He resigned his employment with McDonald’s during 1994 when he was aged 29 to take up employment as the Food and Beverage Manager of the ANA Hotel in Sydney. He was asked to resign his employment with the ANA Hotel during 1997 and he agreed to do so. The circumstances surrounding the applicant’s resignation from the ANA Hotel were as follows. The applicant has suffered from the condition of psoriasis since at least 1991. Psoriasis is a chronic, hereditary, recurrent skin disease marked by discrete bright red patches or blotches on the skin which are covered with lamellated scales. The lesions appear mainly upon the scalp, elbows and knees but they also appear upon the chest and back, arms and legs, palms of the hands and soles of the feet. Psoriasis may occur in association with rheumatoid arthritis. Although there are treatments for psoriasis, a cure has not yet been found. The applicant has been treated for psoriasis since 1991, but with only limited success. At first he experienced minor rashes over his elbows and knees but with the passage of time, the disease has affected almost every part of his body. Because the lesions became visible in 1996/7, he was both embarrassed and humiliated by their appearance. The manager of the ANA Hotel was so concerned about his appearance and its effect upon patrons and staff at the hotel, that he requested his resignation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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