Citation: Regina v Meres; Regina v Dineen [2003] NSWCCA 193
Court: NSW Court of Criminal Appeal
Date: 14 July 2003
Judge(s): Grove J (with Ipp JA and Shaw J agreeing)
Background
Police mounted a surveillance operation in July 2000 following public complaints about drug dealing from a residential premises in Bidwill, located two doors from a primary and pre-school. The operation involved telephone intercepts, listening devices, and undercover officers conducting controlled purchases. Among those living at the premises were the two applicants, Mark Meres and Kathleen Dineen, along with Kathleen's younger sister Joanne Dineen and other family members, including school-aged children.
Meres pleaded guilty to one count of ongoing supply of methylamphetamine under s 25A of the Drug Misuse and Trafficking Act 1985, with four further charges taken into account. He was sentenced in the District Court to four years nine months imprisonment with a non-parole period of three years. Kathleen Dineen pleaded guilty to six counts of supplying methylamphetamine under s 25(1), with nine further matters taken into account, and received a head sentence of six years six months with a non-parole period of four years on the principal count.
Both applicants sought leave to appeal against their sentences in the Court of Criminal Appeal, each arguing that the sentences were excessive.
Legal Issues
- Whether the sentencing judge erred in characterising the drug operation as "busy and thriving" rather than a more modest, loosely organised street-level dealing arrangement
- Whether the sentence imposed on Meres was excessive having regard to established sentencing patterns and his personal circumstances
- Whether the sentence imposed on Kathleen Dineen was excessive, including whether the approach to sentencing for multiple counts was correctly applied in accordance with Pearce v The Queen
- Whether parity of sentencing between the co-offenders was appropriately maintained
Decision
The Court firmly rejected the submission that the operation was little different from street dealing. It pointed to approximately 3,500 intercepted telephone calls to a single service over roughly ten weeks, and the sentencing judge's finding that the offenders had gone into business selling drugs "cold bloodedly for reward." The Court confirmed that, in cases of repetitive supply, criminality is not always measured by quantity alone, and that the repetitive nature of the dealing was itself a significant feature of the offending.
In Meres' application, the Court found no appellable error. His notional head sentence of five years and three months (after accounting for a six-month pre-sentence custody allowance) was considered within the appropriate range, and the appeal was dismissed.
In Kathleen Dineen's application, the Court accepted that the principal sentence of six years six months was excessive when measured against established sentencing patterns. The Court also noted that the structure of the sentences across the multiple counts raised questions about whether the Pearce v The Queen approach to accumulation had been properly implemented, though the fixed-term sentences on the earlier counts had by then been fully served. The Court substituted a sentence of five years imprisonment with a non-parole period of three years on the principal count, finding special circumstances to justify the longer parole period.
Orders Made
Meres:
- Leave to appeal granted; appeal dismissed.
Kathleen Dineen:
- Leave to appeal granted; appeal allowed.
- Sentence on count seven quashed and replaced with five years imprisonment, commencing 6 June 2001 and expiring 5 June 2006, with a non-parole period of three years expiring 5 June 2004.
- Sentences on all other counts to stand.
- First date of eligibility for parole specified as 5 June 2004.
Key Takeaways
- The Court of Criminal Appeal confirmed that in ongoing and repetitive drug supply offences, the cumulative and persistent nature of the dealing can be a principal sentencing consideration, even where individual transaction quantities are modest.
- Characterising a supply operation as merely "loose" or akin to street dealing will not succeed where the evidence, including the volume of intercepted communications, demonstrates a sustained and organised pattern of supply.
- Under the Pearce v The Queen framework, sentences for multiple counts must reflect a principled approach to accumulation; the Court indicated the structure of Kathleen Dineen's sentences did not clearly satisfy this requirement, though it declined to revisit expired fixed-term sentences.
- A sentence can be reduced on appeal where it is excessive relative to established sentencing patterns for comparable offending, even in the absence of a specific identifiable error of principle.
- No special point of principle was established in this decision; the outcome turned on the particular facts of each applicant's offending and subjective circumstances.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25A
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- R v Thomson (2000) 49 NSWLR 383
- R v Bloomfield (1998) 44 NSWLR 734
- R v Khaled [2001] NSWCCA 169
- R v CBK [2002] NSWCCA 457