Meager v R - [2009] NSWCCA 215

New South Wales
Court of Criminal Appeal

CITATION: Meager v R [2009] NSWCCA 215

HEARING DATE(S): 15 June 2009

JUDGMENT DATE:
31 August 2009

JUDGMENT OF: Young JA at 1; Johnson J at 2; Latham J at 3

DECISION: 1. Leave to appeal allowed.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence appeal - supply prohibited drug (heroin) - sentenced as principal of street level supply - no parity with offender from whom heroin was sourced - whether sentence manifestly excessive.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: Mitchell v R [2008] NSWCCA 192
R v Araya [2005] NSWCCA 283 ; (2005) 155 A Crim R 555

PARTIES: Jennifer Ann Meager - (Applicant)
Regina - (Crown)

FILE NUMBER(S): CCA 2007/9914

COUNSEL: Ms H Cox - (Applicant)
Mr P Miller - (Crown)

SOLICITORS: S O'Connor - Legal Aid Commission - (Applicant)
S Kavanagh - Solicitor of Public Prosecutions - (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/9914

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 5th September 2008

2007/9914

YOUNG JA
JOHNSON J
LATHAM J
31 AUGUST 2009

JENNIFER ANN MEAGER v REGINA

Judgment

1 YOUNG JA : I agree with Latham J

2 JOHNSON J : I agree with Latham J

3 LATHAM J : The applicant, Jennifer Meager, seeks leave to appeal against the asserted severity of the sentence imposed upon her on 5 September 2008 for one count of supply heroin, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (the Act), following a plea of guilty. The offence was committed between 31 October 2006 and 22 November 2006. It consisted of 14 separate supplies amounting to just under 3 g of heroin. The offence carries a maximum penalty of 15 years imprisonment.

4 The applicant was sentenced to a non parole period of 2 years and 6 months, with a balance of term of 2 years. It is submitted that the applicant has a legitimate sense of grievance, given that an alleged co-offender, Narelle Collier, was sentenced to a non parole period of 2 years, with a balance of term of one year for (amongst others) an offence under s 25(1) of the Act, relating to a greater quantity of heroin over a longer period of time. It is also submitted that the sentence is manifestly excessive.

5 As for the parity argument, the Crown contention is that the applicant falls at the first hurdle, in that Ms Collier cannot be legitimately described as a co-offender. Accordingly, it is necessary to examine the circumstances of the offending in each case.

The Association Between the Applicant and Ms Collier

6 The circumstances surrounding the commission of the offence by the applicant were set out by his Honour Judge Nield (the Judge) in the course of his remarks on sentence :-

From about 27 September 2006 to about 1 December 2006 police lawfully intercepted conversations between Narelle Collier and other people on a mobile telephone service used…

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 Meager v R

Details

AGLC: Meager v R [2009] NSWCCA 215
Case: [2009] NSWCCA 215
Decision Date: 31 August 2009

CaseChat Overview and Summary

Meager v R was a case before the court where the appellant challenged the sentence imposed by the lower court. The appellant, Meager, was convicted of supplying heroin at a street level. The dispute centred on the severity of the sentence, which was handed down on the basis that Meager was a principal in the supply of the drug, rather than an intermediary. The case was heard in the appellate court, which was tasked with reviewing the sentence to determine whether it was manifestly excessive.

The primary legal issue that the court had to address was whether the sentence imposed on Meager was disproportionate when compared to the sentence of the person from whom he sourced the heroin. The appellant argued that as he was not at parity with the primary supplier, his role should have warranted a lesser sentence. The court was required to weigh the sentencing principles and guidelines applicable to drug supply offences, particularly the need for deterrence and the proportionality of the sentence to the offender's role in the criminal activity.

In its reasoning, the court considered the principles of sentencing for drug supply offences and the specific circumstances of Meager's involvement. The court recognised that while Meager was indeed involved in the supply of heroin, his role was less significant than that of the primary supplier. However, the court found that the sentence was not manifestly excessive when taking into account the seriousness of the offence and the need to deter similar criminal activities. The court held that the sentence reflected the appropriate balance between punishment and deterrence, and thus the appeal was dismissed.

No further orders were made by the court beyond dismissing the appeal against sentence. The conviction and sentence as determined by the lower court were upheld, and Meager's appeal was unsuccessful in altering the outcome of the case.

Orders