Eldridge v The Queen; Mackay v The Queen - [2015] NSWCCA 127

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Eldridge v R; Mackay v R [2015] NSWCCA 127
Hearing dates: 12 February 2015
Decision date: 03 June 2015
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Hamill J at [185]
Decision:
Kelly Eldridge
1. Leave to appeal granted and appeal allowed.
2. Sentence imposed at the Bathurst District Court on 1 October 2013 is quashed.
3. Taking into account the offence on the Form 1, the Applicant is sentenced to imprisonment comprising a non-parole period of four years commencing on 10 November 2011 and expiring on 9 November 2015, with a balance of term of two years and nine months commencing on 10 November 2015 and expiring on 9 August 2018.
4. The earliest date upon which the Applicant will be eligible for release on parole is 10 November 2015.
Suzanne Mackay
1. Leave to appeal granted and appeal allowed.
2. The sentence imposed on Count 2 in the Bathurst District Court on 1 October 2013 is confirmed.
3. The sentence imposed on Count 1 in the Bathurst District Court on 1 October 2013 is quashed.
4. On Count 1, the Applicant is sentenced to imprisonment comprising a non-parole period of four years and six months commencing on 8 November 2011 and expiring on 7 May 2016, with a balance of term of two years and seven months commencing on 8 May 2016 and expiring on 7 December 2018.
5. The earliest date upon which the Applicant will be eligible for release on parole is 8 May 2016.
Catchwords: CRIMINAL LAW - sentence appeals - Applicants pleaded guilty to serious drug supply offences - Applicant Eldridge contends that sentencing Judge erred in failing to take into account her remorse and prospects of rehabilitation - ex tempore remarks on sentence concerning multiple offenders - held not demonstrated that sentencing Judge failed to take these factors into account - whether sentence manifestly excessive - held sentence not manifestly excessive - each Applicant advanced parity ground - claim of legitimate sense of grievance when comparing their sentences with those imposed on other co-offenders - parity ground made out - leave to appeal granted - appeals allowed - both Applicants resentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: Currie v R [2013] NSWCCA 267
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
Rae v R [2011] NSWCCA 211
Texts Cited: ---
Category: Principal judgment
Parties: Kelly Eldridge and Suzanne Mackay (Applicants)
Regina (Respondent)
Representation:
Counsel:
Ms HL Cox (Applicant Eldridge)
Mr CJ Bruce SC (Applicant Mackay)
Mr NJ Adams (Respondent)
Solicitors:
Legal Aid NSW (Applicant Eldridge)
Aboriginal Legal Service (NSW/ACT) Limited (Applicant Mackay)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/357390 (Applicant Eldridge)2011/357425 (Applicant Mackay)

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.

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Details

Case: [2015] NSWCCA 127
Decision Date: 03 June 2015

CaseChat Overview and Summary

In the case of Eldridge v The Queen and Mackay v The Queen, the applicants, having pleaded guilty to serious drug supply offences, appealed against the sentences imposed by the sentencing Judge. Eldridge argued that the sentencing Judge failed to take into account her expressions of remorse and prospects for rehabilitation. Both Eldridge and Mackay also contended that their sentences were excessively harsh compared to those of other co-offenders, thereby asserting a parity issue.

The court examined whether the sentencing Judge had properly considered the factors of remorse and rehabilitation, as well as the proportionality of the sentences in light of the parity argument. Regarding the sentencing considerations, the court found no evidence that the sentencing Judge had failed to take these factors into account. The court also assessed the argument of manifest excessiveness and determined that the sentences were not manifestly excessive. Regarding the parity ground, the court accepted that the applicants had a legitimate sense of grievance when comparing their sentences with those of other co-offenders.

Consequently, the court allowed the appeals, granted leave to appeal, and ordered that both Eldridge and Mackay be resentenced. The court's decision recognised the applicants' grievances concerning the disparity in sentencing but upheld the overall assessment of the sentences as not being manifestly excessive. The appeals were allowed, and both applicants were resentenced by the court.

Orders