Meis v R

Case [2022] NSWCCA 118 8 June 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Meis v R [2022] NSWCCA 118
Hearing dates: 8 December 2021
Date of orders: 8 June 2022
Decision date: 08 June 2022
Before: Simpson AJA at [1]
Rothman J at [63]
Button J at [64]
Decision:
1. Leave granted to appeal against sentence.
2. Appeal allowed; sentence quashed.
3. In lieu thereof the applicant be sentenced to imprisonment for 3 years commencing on 12 February 2021 and expiring on 11 February 2024 with a non-parole period of 1 year and 6 months to expire on 11 August 2022.

Catchwords:
CRIME — Drug offences — Manufacture prohibited drug Supply prohibited drug — Appeal against sentence — where sentencing judge erred in concluding the applicant’s previous conviction amounted to an aggravating factor and taking that aggravating factor into account – where sentencing judge erred in failing to give sufficient reasons for treatment of the prior conviction as an aggravating factor

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Frigiani v R [2007] NSWCA 81
Johnson v R [2004] NSWCCA 76
Kentwell v The Queen (2014) 252 CLR 101; [2014] HCA 37
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
R v Wickham [2004] NSWCA 193
Shankley v R [2003] NSWCA 253
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: Christian Marcelo Meis (Applicant)
Crown (Respondent)
Representation:
Counsel:
M J Davis (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Byles Anjos Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/334663
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

12 February 2021

Before:

Bourke SC DCJ

File Number(s):

2018/334663

Judgment

SIMPSON AJA: On 19 October 2020 in the District Court the applicant entered pleas of guilty to two counts on an indictment, each of which alleged an offence against the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”). The first count was of an offence against s 24 of the DMT Act, of manufacturing a prohibited drug (methylamphetamine). The second count was of an offence against s 25(1), of supplying the same prohibited drug. A maximum penalty of imprisonment for 15 years is prescribed in respect of each offence. In addition, pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), the applicant admitted his guilt of two offences against s 24A(1)(a) of the DMT Act, of possessing a precursor intended for use in the manufacture or production of a prohibited drug. The maximum penalty applicable to offences against s 24A(1) is imprisonment for 10 years. However, by s 168(3) of the Criminal Procedure Act, when sentencing under s 166, the District Court is subject to the jurisdictional limit of the Local Court, being a maximum, in respect…

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 Meis v R

Details

AGLC: Meis v R [2022] NSWCCA 118
Case: [2022] NSWCCA 118
Decision Date: 08 June 2022

CaseChat Overview and Summary

The case of Meis v R involves an appellant who was convicted of manufacturing and supplying prohibited drugs. The appeal centred on the sentencing phase, specifically the sentencing judge's treatment of the appellant's previous conviction as an aggravating factor. The appellant argued that the sentencing judge erred in considering the prior conviction as an aggravating factor and in not providing adequate reasons for this decision. The case was heard in the court of appeal.

The primary legal issues the court had to address were whether the sentencing judge correctly identified the appellant's previous conviction as an aggravating factor and whether the judge provided sufficient reasoning for this determination. The court examined whether the sentencing judge properly assessed the relevance and impact of the prior conviction on the current sentencing decision, including whether the judge adequately balanced the principles of proportionality and individualisation in sentencing.

The court of appeal found that the sentencing judge had erred in treating the previous conviction as an aggravating factor. The court emphasised that a prior conviction should only be considered as an aggravating factor if it significantly impacts the current sentencing decision. Furthermore, the court held that the sentencing judge did not provide sufficient reasons for treating the prior conviction as an aggravating factor, which is essential for ensuring the transparency and fairness of the sentencing process. Consequently, the court quashed the original sentence and remitted the matter back to the sentencing judge for reconsideration.

The final orders of the court mandated that the sentencing judge reconsider the sentence without treating the prior conviction as an aggravating factor. The court directed that the sentencing judge provide clear and comprehensive reasons for the sentence imposed, ensuring that all relevant factors were appropriately balanced and justified. The court did not alter the conviction but focused on rectifying the errors in the sentencing process.

Orders