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Court of Criminal Appeal 31 August 2009

Meager v R

[2009] NSWCCA 215

Drugs
CRIMINAL LAW SENTENCE APPEAL SUPPLY PROHIBITED DRUG (HEROIN) WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Meager v R [2009] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 31 August 2009
Judge(s): Young JA, Johnson J, Latham J

Background

The appellant pleaded guilty to one count of supplying heroin, covering 14 separate supplies totalling just under 3 grams between October and November 2006. She operated as a street-level dealer in the Gosford area, obtaining heroin from a supplier named Narelle Collier and on-selling it to users. Police uncovered the appellant's conduct as a by-product of a covert operation targeting Collier.

The District Court sentenced the appellant to a non-parole period of 2 years and 6 months, with a balance of term of 2 years, producing a head sentence of 4 years and 6 months. A 10% discount was applied, reflecting the appellant's late guilty plea on the second day of trial.

On appeal, the appellant argued two grounds: first, that her sentence was disproportionate compared to the sentence received by Collier; and second, that the sentence was manifestly excessive when assessed against Judicial Commission statistics.

  • Whether Narelle Collier was a "co-offender" for the purposes of the parity principle, such that a marked disparity between their sentences would give rise to a justifiable sense of grievance
  • Whether, even absent a strict co-offending relationship, the court should strive for consistency between offenders engaged in related criminal activity
  • Whether the sentence imposed was manifestly excessive having regard to the applicable statistical range

Decision

On parity: The Court of Criminal Appeal rejected the parity argument. The sentencing judge had not treated Collier as a co-offender of the appellant; rather, the appellant was an independent street-level supplier who sourced from Collier. The two were not engaged in a shared criminal enterprise. The appellant's conviction arose only because police were intercepting Collier's calls. The Court confirmed that the parity principle applies to co-offenders in the proper sense, and this relationship did not meet that threshold.

On the broader consistency argument: The appellant relied on Mitchell v R [2008] NSWCCA 192, which involved two men living together who engaged in identical conduct on the same day. The Court declined to extend that reasoning beyond its particular facts. The decision in R v Araya [2005] NSWCCA 283 was identified as directly analogous authority against the proposition that a mere supplier-customer relationship gives rise to the parity principle. The Court drew a clear distinction between a co-offender and an independent supplier who happens to source product from another person subject to separate proceedings.

On manifest excess: The appellant pointed to Judicial Commission statistics showing the head sentence fell in the top 15% and the non-parole period in the top 22% of sentences imposed for equivalent offending. The Court held this did not establish that the sentence was outside the range legitimately available to the sentencing judge. The appellant's offending was aggravated by the fact that she was subject to a good behaviour bond at the time. The appeal was dismissed on both grounds.

Orders Made

  • Leave to appeal allowed
  • Appeal dismissed

Key Takeaways

  • The parity principle applies to co-offenders in the true sense. A supplier-to-dealer relationship does not constitute a co-offending relationship sufficient to engage the principle, even where one person's prosecution arises directly from the investigation of the other.
  • Extending Mitchell v R beyond its particular facts was declined by the Court of Criminal Appeal. That decision, involving two individuals living together and engaged in identical conduct on the same day, was confined to its own circumstances.
  • A sentence falling within the upper range of Judicial Commission statistics does not, of itself, establish manifest excess. The appellant must demonstrate the sentence exceeds the range legitimately available to the sentencing judge on all the facts.
  • Aggravating factors such as committing the offence while on a good behaviour bond remain relevant to placing a sentence at the higher end of the available range.
  • Under s 25(1) of the Drug Misuse and Trafficking Act 1985, the maximum penalty for supply of a prohibited drug is 15 years imprisonment. A sentence of 4 years 6 months for 14 supplies of heroin totalling under 3 grams, with a late plea, was upheld as within the legitimate range.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)

Cases:
- Mitchell v R [2008] NSWCCA 192
- R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555
- Lowe v The Queen (1984) 154 CLR 606