Meager v R

Court of Criminal Appeal (NSW)|2009-06-15|Before: Young JA, Johnson J, Latham J, Mr P

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.

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)

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

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

IN THE COURT OF CRIMINAL APPEAL 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 by Narelle Collier. These intercepted conversations revealed that, as well as supplying heroin to users of it, Narelle Collier was supplying heroin to other people, who in turn supplied to users of it. These people were Patrick McDaid and [the applicant]. Police investigations revealed that Narelle Collier would obtain heroin for Patrick McDaid and the [applicant] from a supplier of it in Sydney, that she would hand over the heroin to Patrick McDaid or the [applicant] at Woy Woy railway station or at her home in Umina or at their home in East Gosford, that Patrick McDaid or the [applicant] would supply heroin to users of it in the Gosford and East Gosford shopping districts, and that Patrick McDaid or the [applicant] would pay for the heroin supplied to them by Narelle Collier by depositing money into the bank account of Narelle Collier or by Narelle Collier withdrawing money from Patrick McDaid's bank account. ….. on numerous occasions between 1 November 2006 and 21 November 2006 the [applicant] supplied heroin to users of it. On 1 December 2006 police, armed with a search warrant, attended at the home in which Patrick McDaid and the [applicant] lived. Police arrested both Patrick McDaid and the [applicant]. During the search of the home police found paraphernalia of drug supply including gloves, razor blades, water balloons and some cannabis. 7 It is relevant to observe at this point that the applicant's counsel on sentence sought to compare the circumstances of the applicant's offending with that of Mr McDaid. In other words, in so far as parity was an issue in the proceedings below, Mr McDaid was characterised as the relevant co-offender, not Ms Collier. These submissions were also reflected in the remarks on sentence:- Another factor not mentioned in s 21A of the Act is parity of sentencing. On 6 March 2008 I sentenced Patrick McDaid to imprisonment for five years and one month, with a non-parole period of three years and a parole period of two years and one month, for a single rolled up offence of supplying a prohibited drug to users of it on 26 occasions between 31 October 2006 and 23 November 2006, with a total weight of the drug being 6.5 g. There are similarities and differences between Patrick McDaid and the [applicant], with the main difference being that he admitted having supplied a prohibited drug on 26 occasions, with a total weight of the drug being 6.5 g, whereas she has admitted having supplied a prohibited drug on 14 occasions, with a total weight of the drug being 2.9 g. Notwithstanding that they were principals in the business of supplying prohibited drugs to users of them , I see this difference as the reason to differentiate between them. 8 The underlined passage in the remarks above demonstrates the basis of the Judge's approach to sentencing. The applicant was not regarded by the Judge as a co-offender of Ms Collier's, rather she was regarded as an independent supplier who happened to source her heroin from Ms Collier. The applicant's arrest was merely a by-product of a covert police operation targeting Ms Collier. 9 Ms Collier was sentenced by the Judge four months before the applicant. Unlike the applicant, who had pleaded guilty on the second day of her trial, Ms Collier pleaded guilty at the first available opportunity and received a 25% discount for the utilitarian value of her pleas. In addition to the offence under s 25(1) of the Act, Ms Collier was sentenced in respect of two offences under s 25A(1) of the Act. The s 25(1) offence related to the supply of at least 80g of heroin between 27 September 2006 and 1 December 2006. Ms Collier received a sentence of 3 years imprisonment, comprising a non parole period of two years, for this offence. However, the sentences she received for the s 25A(1) offences and a degree of accumulation resulted in an aggregate sentence of 6 years imprisonment with an aggregate non parole period of 4 years.

No Issue of Parity 10 The applicant's counsel maintains that Ms Collier was a co-offender, so as to attract the parity principle, but in the alternative it is contended that this Court should strive to produce consistency in sentencing as between offenders who commit related offences. The applicant relies upon what was said by Blanch J in Mitchell v R [2008] NSWCCA 192 at [8] - [10] :- The first ground of appeal seeks to raise the question of a justifiable sense of grievance and reliance is placed on the line of authorities following Lowe v The Queen (1984) 154 CLR 606. In that case Mason J said at page 613: "... a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."

9 That case was a case involving co-offenders and this issue normally arises in cases where sentences have been imposed on co-offenders. This is not such a case because the applicant and Parker purchased the drugs individually although with the purpose of going to the same function in Queensland and distributing the drugs to the other members of their party. Parker also said he was aware Mitchell had the drugs.

10 Although not a case of discrepancy in sentencing of co-offenders, this is a case of markedly different sentences imposed on two men who were living in the same house, who were each engaged in the same activity for the same purpose on the same day. 11 McClellan CJ at CL expressly agreed with the orders proposed by Blanch J only on the ground of manifest excess. Grove J agreed with Blanch J. Having regard to other decisions of this Court, to which I refer below, I would confine the reach of Mitchell to the facts of that particular case. 12 The applicant's arguments in this appeal bear all the hallmarks of the arguments advanced in R v Araya [2005] NSWCCA 283 ; (2005) 155 A Crim R 555. It is convenient to refer to what was there said by Johnson J, at [65] - [72], with whom Simpson J and Rothman J agreed :- Senior Counsel for the Applicant accepts that Mr Chandra and the Applicant were not co-offenders and that the normal parity principle does not strictly apply. However, he contends that there are similarities between the criminal conduct of the two offenders, their related arrests and parallel criminal proceedings in such a way as to attract, by analogy, the parity principle. It is submitted that the Applicant has been left with a sense of grievance which, in all the circumstances, is justifiable. 66 As the Applicant and Mr Chandra were not co-offenders, the parity principle reflected in Lowe v The Queen (1984) 154 CLR 606 and Jones v The Queen [1993] 67 ALJR 376 has no application. 67 This Court has held that the parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two offenders, who are not co-offenders, simply because the two offenders may have similar characteristics and may have committed similar crimes. In R v Morgan (1993) 70 A Crim R 368, Hunt CJ at CL (Allen J and Loveday AJ agreeing) said at 371: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range." 68 In R v F (2002) 132 A Crim R 308, it was submitted on behalf of an offender that the Court should treat the sentence imposed in a different case upon a different offender as being a "benchmark" which ought be followed. The Court rejected this argument. Simpson J said at 315: "Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case. I do not find the argument in relation to the desirability of consistency in sentencing persuasive in this case. Consistency is not derived from a single case. Consistency in sentencing will be achieved from a range of cases involving similar features, and also variables. It depends upon the accumulated wisdom and experience of sentencing judges. In my opinion a single case is inadequate to enable a principled consistent approach. … Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed."

Meagher JA at 309-310 agreed with Simpson J, but preferred to use the words "more important" rather than "equally important" in the last quoted passage. Howie J expressed a similar view to Meagher JA in this respect at 316-317. 69 In R v George (2004) 149 A Crim R 38 at 47, the Court (Wood CJ at CL, Adams and Kirby JJ) approached a ground of appeal which invited comparison with sentences in other case in the following way: "We are unable to gain any meaningful assistance from a reference to these cases. It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see Regina v Morgan (1993) 70 A Crim R 368; Regina v Salameh NSWCCA 9 June 1994 and Regina v Trevenna [2004] NSWCCA 43 per Barr J at 98 to 101. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence.

The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required. As Barr J said in Trevenna , 'Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong.' Inter alia any such approach would have to assume that the other was correct, and that is an assumption which cannot logically be made." 70 Similar sentiments have been expressed by this Court when arguments have been advanced on appeal comparing sentences imposed for offences of dishonesty or fraud committed by persons who are not co-offenders: R v Hawker [2001] NSWCCA 148 at paragraphs 17-18; R v Swadling [2004] NSWCCA 421 at paragraphs 29, 54; R v Martin [2005] NSWCCA 190 at paragraph 56. In each of those cases, the Court has emphasised that far greater assistance is derived from references to general sentencing policy. 71 In R v Singh [2001] NSWCCA 424, an argument was advanced that an unjustified disparity existed between the overall sentence imposed upon the Applicant when compared with others who might be considered to be his co-offenders. It was submitted for the Applicant that he was one of a group of offenders, most of whom had been dealt with by different District Court Judges, in respect of the sale of amphetamines from a particular café in Kings Cross. In the course of rejecting this argument, Howie J (Grove J agreeing) said at paragraph 12: "The applicant was never charged with any offence in relation to the supply of drugs to, or by, the persons at the café. The applicant was not a co-offender of any person other than the unidentified person or persons who supplied him with the drugs that he on-supplied to the operative. The supply to the undercover officer was only in the most indirect way connected to the criminal conduct emanating from the café and for which other persons were sentenced. As Judge Woods noted, the applicant was not the target of the police operation and, in his Honour's words, he 'simply became roped in'. Regardless of what sentences the persons connected with the drug dealing from the café received, the applicant could not have a justifiable sense of grievance about them. The sentences of those persons are no more relevant than would be the sentences imposed upon other associates of the applicant for unrelated drug offences. Although Judge Woods said that he would bear in mind the sentence imposed upon one of the barmen at the café for supplying ecstasy, I cannot understand why he did so." 72 It was accepted in this case that the Applicant and Mr Chandra were not co-offenders. Whatever may have been the position with the offences contained in the original indictment, it is the case that none of the offences to which the two offenders ultimately pleaded guilty were committed by them as co-offenders. As will be seen, it appears that there was some association between the two offenders and some overlap in their activities. However, I do not consider that this attracts the parity principle to the Applicant's case. In my view, the correct approach to the present argument involves application of the principles referred to in Morgan , F , George and Singh referred to above. 13 I agree with the Crown's submission that this applicant and Ms Collier were not co-offenders and, for that reason, the parity principle has no application. More importantly, the applicant's submissions assume that there is a marked difference between the penalty imposed upon Ms Collier for the s 25(1) offence and the penalty imposed upon the applicant for the like offence. It is not such a significant difference in my view. The other assumption underlying the applicant's argument is that the sentence imposed upon Ms Collier is correct. I would not readily conclude that is so, simply because there has been no Crown appeal. 14 This ground of the appeal fails.

Manifest Excess 15 The Judge noted that "supplying a prohibited drug, whatever is the drug and whatever is the reward for supplying it, to users of it, is a serious offence." The Judge referred to the fact that the applicant was engaged as a principal in the business of supplying drugs. Whilst it was accepted that the offence arose out of the need to fund the applicant's own addiction, the Judge quite properly rejected this as an excuse, which did nothing to diminish the gravity of the offence. The fact that the applicant was a "street level supplier" stood in the same category. 16 The offence was aggravated by the fact that the applicant was subject to a good behaviour bond at the time of the commission of the offence. That bond was imposed on 17 October 2005 for a period of two years in relation to a drive under the influence offence. The applicant had other convictions recorded at the same time for possess prohibited drug. Her criminal history reflected the fact that she had been addicted to heroin for a period of 10 years. 17 The applicant's subjective case was the subject of extensive comment during the remarks on sentence. The applicant was 43 years of age when she committed the offence and 45 years of age at the time of sentence. She is the second of seven children, and was sexually abused by her father at the age of 13. She did not disclose the offence until she was 35 years of age. The applicant was in full-time employment between 1979 and 1999. She is single, never having married, and enjoys good physical health. 18 The Judge accepted that her prospects of rehabilitation were reasonable and that she had made considerable progress towards ceasing her use of prohibited drugs and weaning herself off methadone. The applicant had also commenced a business administration course at TAFE. In the light of these findings, the Judge considered both personal and general deterrence to be important in the sentencing exercise. Given the applicant's positive steps towards rehabilitation, the Judge found special circumstances. None of these findings are now criticised by the applicant. 19 The principal thrust of the applicant's argument on this ground is that, when regard is had to the Judicial Commission statistics, the Judge's starting point before applying a discount of 10% falls within the top 13% of all sentences imposed, and that the ultimate head sentence of 4 years and 6 months falls within the top 15% of all sentences imposed. It is further submitted that the non-parole period falls into the top 22% of non-parole periods or fixed terms imposed. 20 This submission does not establish that the sentence imposed upon the applicant was outside the range legitimately available to the Judge in the exercise of a broad sentencing discretion. Even if, as the applicant asserts, the sentence is a harsh one in the light of the applicant's subjective case, that does not entitle this Court to intervene. I would reject this ground of the appeal. 21 I propose the following orders :- 1. Leave to appeal allowed. 2. Appeal dismissed. **********

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