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

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.