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)
Decision under appeal	Court or tribunal: Bathurst District Court Jurisdiction: --- Citation: --- Date of Decision: 1 October 2013 Before: Blanch CJ of DC File Number(s): 2011/357390 (Applicant Eldridge) 2011/357425 (Applicant Mackay)

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Judgment

1. HOEBEN CJ at CL: I agree with Johnson J.

2. JOHNSON J: The Applicants, Kelly Eldridge and Suzanne Mackay, each seek leave to appeal with respect to sentences imposed at the Bathurst District Court on 1 October 2013 by Blanch CJ of DC with respect to serious drug supply offences.

The Offences and Sentences

Kelly Eldridge

3. Kelly Eldridge pleaded guilty to one count of knowingly taking part in the supply a commercial quantity of a prohibited drug (770 grams of Heroin) contrary to s.25(2) Drug Misuse and Trafficking Act 1985, an offence punishable by a maximum penalty of 20 years’ imprisonment with a standard non-parole period of 10 years.

4. Kelly Eldridge asked the sentencing Judge to take into account, on a Form 1, an offence of supplying a prohibited drug (12.25 grams of Methylamphetamine) contrary to s.25(1) Drug Misuse and Trafficking Act 1985, an offence (when prosecuted as a separate charge) punishable by a maximum penalty of 15 years’ imprisonment with no standard non-parole period.

5. Taking into account the offence on the Form 1, Kelly Eldridge was sentenced to imprisonment comprising a non-parole period of five years commencing on 10 November 2011 and expiring on 9 November 2016, with a balance of term of three years commencing on 10 November 2016 and expiring on 9 November 2019.

Suzanne Mackay

6. Suzanne Mackay was sentenced for two separate offences:

1. Count 1 - knowingly taking part in the supply of a commercial quantity of a prohibited drug (742 grams of Heroin), an offence under s.25(2) Drug Misuse and Trafficking Act 1985 punishable by imprisonment for 20 years with a standard non-parole period of 10 years;

2. Count 2 - knowingly taking part in the supply of a prohibited drug (27.6 grams of Heroin), an offence under s.25(1) Drug Misuse and Trafficking Act 1985 punishable by imprisonment for 15 years with no standard non-parole period.

7. Suzanne Mackay was sentenced to concurrent terms of imprisonment as follows:

1. Count 1 - imprisonment comprising a non-parole period of five years commencing on 8 November 2011 and expiring on 7 November 2016, with a balance of term of three years commencing on 8 November 2016 and expiring on 7 November 2019;

2. Count 2 - a fixed term of imprisonment for two years commencing on 8 November 2011 and expiring on 7 November 2013.

Grounds of Appeal

8. Kelly Eldridge relies upon the following grounds of appeal:

1. Ground 1 - the Applicant has a legitimate sense of grievance when comparing the sentence imposed on her as compared to the sentences imposed on her co-offenders Kan Seang, Tania Negro and Suzanne Mackay.

2. Ground 2 - his Honour erred in that he failed to take into account the remorse shown by the Applicant.

3. Ground 3 - his Honour erred in that he failed to take into account the Applicant’s prospects of rehabilitation on sentence.

4. Ground 4 - the sentence imposed upon the Applicant was manifestly excessive.

9. Suzanne Mackay relies upon a single ground of appeal, namely that the Applicant has a justifiable sense of grievance as a result of the sentence imposed on Kan Seang.

The Various Offenders

10. Sentenced at the same time on 1 October 2013 in the Bathurst District Court were five members of the Mackay family:

1. Suzanne Mackay (54 years old);

2. Elizabeth Mackay (50 years old), a sister of Suzanne Mackay;

3. Kelly Eldridge (33 years old), a daughter of Suzanne Mackay;

4. Tiamber Mackay (24 years old), a daughter of Suzanne Mackay; and

5. Shoula Maria Knight (39 years old), a niece of Suzanne Mackay.

11. Also sentenced by Blanch CJ of DC on 1 October 2013, following a separate sentencing hearing conducted that day, was Tania Negro (“Negro”) (29 years old).

12. Finally, Kan Seang (“Seang”) (79 years old) was sentenced by Garling ADCJ on 4 February 2014, following a separate sentencing hearing.

Facts of Offences

13. Statements of Agreed Facts were tendered on sentence with respect to each of Kelly Eldridge and Suzanne Mackay. What follows is drawn from those statements.

14. On 13 April 2011, Strike Force Stagehand was formed to investigate an apparent increase in the supply of heroin in the Bathurst area. Enquiries led to an investigation into the Mackay family (Suzanne Mackay, her sister Elizabeth Mackay, and Suzanne Mackay’s children - Tiamber Mackay and Kelly Eldridge).

15. Over the course of the investigation, it became clear to police that members of the family were involved in ordering heroin and methylamphetamine from two upper-level suppliers, Seang and Negro. One of the Mackays would usually then drive to Canley Vale, Sydney, to obtain drugs from Seang or Negro. The Mackays would pay Seang or Negro approximately $5,500.00 per ounce of heroin (28 grams) and $1,350.00 per “eight-ball” of methylamphetamine (3.5 grams).

16. From July 2011, several telephone services were lawfully intercepted. A particular mobile phone number was identified as being predominantly used by various members of the Mackay family to make contact with Seang and Negro.

Supplies Involving Kelly Eldridge

17. A number of telephone intercepts identified 18 separate supplies which provided a total quantity of 770 grams of heroin (the offence charged between July and November 2011 involving Kelly Eldridge) and 12.25 grams of methylamphetamine (the Form 1 matter).

18. The first supply on 20 July 2011 involved Kelly Eldridge organising to buy “one and a half” ounces (42 grams of heroin) from Seang. Tiamber Mackay then met Seang at Negro’s house at Canley Vale to exchange money for this heroin.

19. The second supply on 22 July 2011 involved Kelly Eldridge organising again to buy “one and a half” ounces (42 grams of heroin) from Seang. Kelly Eldridge then met Seang at Negro’s house at Canley Vale to exchange money for this heroin.

20. The third supply on 24 July 2011 involved Suzanne Mackay and Kelly Eldridge organising to buy “one and a half” ounces (42 grams of heroin) from Seang and Negro, and then meeting Negro to exchange money for this heroin.

21. The fourth supply on 29 July 2011 involved Kelly Eldridge again organising to buy “one and a half” ounces (42 grams of heroin) from Seang and Negro, with Tiamber Mackay then meeting at Negro’s house at Canley Vale to exchange money for this heroin.

22. The fifth supply on 20 August 2011 involved Suzanne Mackay and Kelly Eldridge organising to buy “one and a half” ounces (42 grams of heroin) from Seang. Tiamber Mackay then met Seang at Negro’s house at Canley Vale to exchange money for this heroin.

23. The sixth supply on 23 August 2011 involved Kelly Eldridge organising to buy “two” ounces (56 grams of heroin) from Negro. Kelly Eldridge then met Negro to exchange money for this heroin.

24. The seventh supply on 26 August 2011 involved Kelly Eldridge organising to buy “two” ounces (56 grams of heroin) from Negro. Tiamber Mackay then met Negro to exchange money for this heroin.

25. The eighth supply on 28 August 2011 involved Kelly Eldridge organising to buy “one and a half” ounces (42 grams of heroin) from Negro. Tiamber Mackay then met Negro to exchange money for this heroin.

26. The ninth supply on 31 August 2011 involved Suzanne Mackay and Kelly Eldridge organising to buy “one and a half” ounces (42 grams of heroin) from Negro. Kelly Eldridge and Tiamber Mackay then met Negro to exchange money for this heroin.

27. The tenth supply on 2 September 2011 involved Kelly Eldridge organising to buy “one and a half” ounces (42 grams of heroin) from Negro. Tiamber Mackay then met Negro to exchange money for this heroin.

28. The eleventh supply on 7-8 September 2011 involved Kelly Eldridge and Suzanne Mackay organising to buy “one and a half” ounces (42 grams of heroin) from Negro on 7 September 2011. Tiamber Mackay then met Negro to exchange money for this heroin. On 8 September 2011, Kelly Eldridge entered discussions with Negro about returning 19 grams of the heroin, in exchange for one ounce of purer heroin. Eldridge then met Negro’s boyfriend to exchange money/heroin for the higher quality product.

29. The twelfth supply on 10 September 2011 involved Suzanne Mackay organising to buy one ounce (28 grams of heroin) from Negro. Kelly Eldridge then met Negro to exchange money for this heroin.

30. The thirteenth supply on 12 September 2011 involved Suzanne Mackay and Kelly Eldridge organising to buy one ounce (28 grams of heroin) and half an “eight ball” of methylamphetamine (1.75 grams) from Negro. An exchange was then made on the afternoon of 12 September 2011.

31. The fourteenth supply on 15 September 2011 involved Kelly Eldridge organising to buy one ounce of heroin and an “eight ball” of methylamphetamine (3.5 grams) from Negro. An exchange was then made on the late evening of 15 September 2011.

32. The fifteenth supply on 19 September 2011 involved Kelly Eldridge organising to buy one and a half ounces (42 grams of heroin) and an “eight ball” of methylamphetamine (3.5 grams) from Negro. Tiamber Mackay then met Negro to exchange money for the prohibited drugs.

33. The sixteenth supply on 22 September 2011 involved Kelly Eldridge organising to buy “one and half” ounces (42 grams of heroin) and an “eight ball” of methylamphetamine (3.5 grams) from Negro. Tiamber Mackay then met Negro to exchange money for the prohibited drugs.

34. The seventeenth supply on 24 September 2011 involved Kelly Eldridge and Suzanne Mackay organising to buy “one and half” ounces (42 grams of heroin) from Negro. Tiamber Mackay then met Seang to exchange money for the prohibited drugs.

35. The eighteenth supply on 8 November 2011 involved contact the previous day by Suzanne Mackay with Negro requesting “two full ones”, and then later “I want two and a half now”, and arranging to meet “up top” the following day. At about 7.30 pm on 8 November 2011, Suzanne Mackay and Elizabeth Mackay were observed at Blaxland McDonalds. A car owned by Negro arrived and an exchange was made. This was the fulfilment of the order to Negro for “two and a half” ounces (70 grams of heroin). Of that amount, 42 grams was taken back to an address at Kelso where Kelly Eldridge was waiting.

Arrest of Kelly Eldridge

36. At about 10.15 pm on 8 November 2011, police executed a search warrant at an address in Kelso, the premises occupied by members of the Mackay family. During the execution of the warrant, police found Elizabeth Mackay, Suzanne Mackay and Kelly Eldridge within the residence dividing the bulk heroin into smaller deals. A large amount of indicia of supply was found in the residence.

37. Kelly Eldridge was arrested and charged that evening. She was released on bail on 11 November 2011, but was rearrested on 14 November 2011 following a bail review and remained in custody thereafter.

Supplies Involving Suzanne Mackay

Count 1 - Supplies Between 12 July 2011 and 8 November 2011

38. Telephone intercept evidence identified 16 separate supplies between July and November 2011 involving a total of 742 grams of heroin in which Suzanne Mackay was implicated criminally, giving rise to the offence in Count 1.

39. The first supply on 12 July 2011 involved Suzanne Mackay organising to buy “one and a half” ounces (42 grams of heroin) from Seang. Tiamber Mackay drove to Seang’s house at Canley Vale to exchange money for this heroin.

40. The second supply on 16 July 2011 involved Suzanne Mackay again organising to buy “one and a half” ounces (42 grams of heroin) from Seang. Tiamber Mackay drove to Negro’s house at Canley Vale to exchange money for this heroin.

41. The third supply on 18 July 2011 involved Suzanne Mackay again organising to buy “one and a half” ounces (42 grams of heroin) from Seang. Suzanne Mackay and another person drove to Negro’s house at Canley Vale to exchange money for this heroin.

42. The fourth supply on 24 July 2011 involved the same facts as Kelly Eldridge’s third supply referred to at [20] above.

43. The fifth supply on 27 July 2011 involved Suzanne Mackay organising to buy “one and a half” ounces (42 grams of heroin) from Negro and then meeting at Negro’s house in Canley Vale. Suzanne Mackay and another person drove to Negro’s house at Canley Vale to exchange money for this heroin.

44. The sixth supply on 11 August 2011 involved Suzanne Mackay organising to buy “one and a half” ounces (42 grams of heroin) from Seang. Tiamber Mackay then met Seang at Negro’s house at Canley Vale to exchange money for this heroin.

45. The seventh supply on 14 August 2011 involved Suzanne Mackay organising to buy “one and a half” ounces (42 grams of heroin) from Seang. Tiamber Mackay then met Seang at Negro’s house at Canley Vale to exchange money for this heroin.

46. The eighth supply on 16 August 2011 involved Suzanne Mackay organising to buy “one and a half” ounces (42 grams of heroin) from Seang on behalf of Kelly Eldridge.

47. The ninth supply on 20 August 2011 involved the same facts as related to Kelly Edridge’s fifth supply referred to at [22] above.

48. The tenth supply on 31 August 2011 involved the same facts as related to Kelly Eldridge’s ninth supply referred to at [26] above.

49. The eleventh supply on 5 September 2011 involved Tiamber Mackay and Suzanne Mackay organising to buy “one and a half” ounces (42 grams of heroin) from Negro. Tiamber Mackay then met Negro to exchange money for this heroin.

50. The twelfth supply on 7-8 September 2011 involved the same facts as Kelly Eldridge’s eleventh supply referred to at [28] above.

51. The thirteenth supply on 10 September 2011 involved the same facts as Kelly Eldridge’s twelfth supply referred to at [29] above.

52. The fourteenth supply on 12 September 2011 involved Suzanne Mackay and Kelly Eldridge organising to buy one ounce (28 grams of heroin) from Negro, with an exchange then being made on the afternoon of 12 September 2011. This supply relates in part to Kelly Eldridge’s thirteenth supply referred to at [30] above.

53. The fifteenth supply on 24 September 2011 involved the same facts as Kelly Eldridge’s seventeenth supply referred to at [34] above.

54. The sixteenth supply on 8 November 2011 involved similar facts as those contained in Kelly Eldridge’s eighteenth supply referred to at [35] above.

Count 2 - Offence on 8 November 2011

55. At about 7.50 pm on 8 November 2011, Elizabeth Mackay and Suzanne Mackay met a police undercover operative in the car park of the Blaxland Tavern. The undercover operative had previously arranged with Elizabeth Mackay to purchase one ounce of heroin for $7,000.00.

56. In accordance with prior discussions between the undercover operative and Elizabeth Mackay, $2,000.00 had already been transferred by police to a bank account owned by Elizabeth Mackay on 7 November 2011. The remaining $5,000.00 was given to Elizabeth Mackay in cash. The undercover operative received a small brown carry bag which contained 27.6 grams of heroin at 18% purity.

57. These facts constituted Suzanne Mackay’s second offence of knowingly taking part in the supply of an indictable quantity of a prohibited drug, heroin (27.6 grams).

Arrest of Suzanne Mackay

58. After the transaction with the undercover operative on the evening of 8 November 2011, the Mackays were followed to the Kelso residence.

59. At about 10.15 pm that evening, police executed a search warrant at that residence. During the execution of the warrant, personal searches were conducted of Elizabeth Mackay, Suzanne Mackay and Kelly Eldridge. Nothing of interest was found on Suzanne Mackay. A small amount of heroin was found on Elizabeth Mackay. The sum of $660.00 was located in the bra of Kelly Eldridge.

60. A number of items, being indicia of supply, were located in the premises including digital scales. Three foil-wrapped items (later found to contain heroin) were found on the surface of the water in the toilet, and small pieces of square-shaped foil and a roll of Gladwrap were located on a table in the lounge room.

61. Suzanne Mackay was arrested and charged that evening and has remained in custody since 8 November 2011.

Subjective Circumstances of Kelly Eldridge

62. Kelly Eldridge was 31 years old at the time of the offences and 33 years old at the time of sentence.

63. She had a limited criminal history involving driving offences in 1998, offences in 1999 of goods in custody and possession of a prohibited drug and a further goods in custody offence in 2002. All offences were punished by fines.

64. Tendered in evidence at the sentencing hearing was a presentence report together with a report dated 1 February 2013 of Mark Howard, psychologist, and a letter from Kelly Eldridge and documents concerning her courses undertaken in custody. The contents of these reports will be mentioned later in this judgment.

Subjective Circumstances of Suzanne Mackay

65. Suzanne Mackay was 52 years old at the time of the offences and 54 years old at the time of sentence.

65. Her criminal history contained one entry. On 14 July 1999, she appeared at the Lithgow Local Court on a charge of bringing prohibited plants or drugs into a place of detention, for which she was fined $1,000.00.

66. A presentence report dated 23 September 2013 was provided to the Court. A report dated 24 September 2013 from Anna Robilliard, forensic psychologist, was also tendered, together with a letter from another daughter of Suzanne Mackay who was not involved in these offences. These reports will be referred to later in this judgment.

The Sentencing Hearing in the District Court

68. Given the grounds of appeal in this Court, it is appropriate to refer to the course of proceedings in the District Court.

69. The proceedings against six offenders (all but Seang) came before another Judge at the Bathurst District Court on 13 May 2013. It was indicated that the sentencing hearing may occupy two-to-three days. Given this estimate, the matters were placed in the call-over list before the Chief Judge of the District Court on 15 May 2013 to be given a hearing date.

70. Thereafter, the six matters came before Blanch CJ of DC sitting at the Bathurst District Court on 1 October 2013. Before that day, documentary material had been provided to his Honour by both the Crown and defence and it is apparent that his Honour had considered it.

71. Soon after the matters were called on, his Honour indicated his provisional view on sentence with respect to each of the offenders. With respect to Kelly Eldridge and Suzanne Mackay, his Honour said (T3.29, 1 October 2013):

“For each of them I had thought that an appropriate penalty was something more like eight years with a five year non-parole period. The question in respect of Ms Eldridge is as I understand the basic purport of the prosecution case is that Suzanne who was is [sic] mother had a heroin addiction herself and because of that became introduced to dealers and then eventually became involved in significant dealing herself. But looking at the material Kelly who is one of the daughters was very heavily involved in it, in fact the particular instances where the police have recorded things, she appears more often than Suzanne in terms of the dealing and the drugs. So that those two seem to me, in terms of who was dealing with what, to be the most culpable if I can put it that way.”

72. Soon after, his Honour said to counsel (T4.13, 1 October 2013):

“It comes down to the question then of what the appropriate sentence is for the two people that I see at the moment in this group as being the most culpable and that is Suzanne and Kelly Eldridge.”

73. His Honour indicated provisional sentences as well for other offenders, but it is not necessary to refer to those for the purpose of determining the grounds of appeal.

74. Submissions were made by counsel for the offenders, including Kelly Eldridge and Suzanne Mackay.

75. At the conclusion of submissions, his Honour proceeded to sentence five offenders (Suzanne Mackay, Kelly Eldridge, Elizabeth Mackay, Shoula Knight and Tiamber Mackay) in a single set of sentencing remarks. To assist determination of the grounds of appeal, it is appropriate to set out extracts from the remarks on sentence.

76. Early in the remarks, his Honour referred to the case of Suzanne Mackay (ROS1/AB11):

“Dealing firstly with Suzanne Mackay it appears that she is now 54 years of age and she had a long history of heroin use herself and because of her association with heroin and heroin dealers she came to a point of becoming involved in the distribution of the heroin and in doing that she involved her two daughters, her sister and her niece.”

77. In the course of considering the facts of the offences, his Honour said (ROS2/AB12):

“The telephone calls indicate that on a significant number of occasions it was Suzanne Mackay who was involved in arranging the supply of the drugs.

Looking at the numbers of the calls and what occurred it does appear that Ms Eldridge was involved in somewhat more of the dealings but it is clear that Suzanne Mackay was the person who initiated the drug dealing operation. She has made that plain to Duffy & Robilliard the psychologists and it appears that she gives the reason for this, the fact that there were deaths in the family, she had a long history of coping with anxiety and depression and the use of heroin was her way of coping with it and she began to use more and more heroin and that was the motivation for the initiation of the offence.

Of course dealing with the objective facts of the case, it is a significant aggravating feature that she involved two of her daughters and her sister and niece in what was occurring. Another observation that I should make about the offences is that they are certainly not sophisticated drug dealing offences. They arose in an amateurish sort of fashion, however that does not in any way excuse them and nor does it militate against the imposition of a sentence that reflects both general and specific deterrence. At the end of the day, the activities of Suzanne Mackay and the other co-offenders was responsible for spreading a significant amount of heroin into the local community and that degree of drug abuse in the community can only have a very significant deleterious effect on the community as a whole and of course a sentence has to be imposed that reflects both general and specific deterrence.”

78. His Honour then turned to the subjective circumstances of Suzanne Mackay (ROS3-4/AB13-14):

“So far as Suzanne Mackay is concerned, I have already indicated she is 54 years of age. She has a prior conviction in 1999 which is not of any significance so for all intents and purposes she should be dealt with as somebody without prior criminal history. There has been a report tendered by Duffy & Robilliard and that indicates that she was one of twelve children, her mother left the family when she was four years of age. I have already indicated that two of her sisters died in the period between 2008 and 2010 and that caused her a degree of anxiety and grief which may have been the trigger for her to become involved in these offences.

She is the mother of five children including Tiamber the co-offender here and Kelly Eldridge. Her children are aged between 34 and 19. She suffers from severe emphysema and obviously that is going to be a significant problem for her in a gaol situation. It appears that she has brought up the children largely by herself and her future in the community will be one where she will need to go and live with relatives and she has got the background of serious emphysema. She had been using heroin herself since the age of 17 and that abuse increased after the death of her sisters.

She has entered a plea of guilty at the earliest opportunity and she is entitled to a 25 per cent discount in relation to any sentence to be imposed. She has expressed contrition. Obviously she finds herself in the situation where she is regretting the fact that she has brought a calamity on her daughters and in particular on Kelly Eldridge who has herself six young children and who has now been in gaol since November 2011 as she has.

She has expressed to the psychologist an appreciation of what an evil heroin is in the community and indeed her view about that has been that she is glad that she was arrested because if she had not been her abuse of heroin would have increased to the point where she would now be dead. That may very well be the true situation so far as she is concerned.

Her prospects for rehabilitation will depend on her ability to come out of gaol drug free and remain drug free, bearing in mind the fact that she has been using heroin for almost 40 years prior to going into custody but of course she also has a significant health problem. And that significant health problem has to be taken into account too in the context of how difficult it will be for her in gaol compared to other people.”

79. His Honour then imposed the sentences previously indicated (at [7]) on Suzanne Mackay.

80. Next, his Honour addressed the objective gravity of Kelly Eldridge’s offences (ROS5-6/AB15-16):

“In the case of Kelly Eldridge, as l have already indicated she is a daughter of Suzanne Mackay. She was clearly involved in a significant number of the drug dealing. The telephone intercepts indicate that on more occasions than her mother she was actually involved in organising the purchase of heroin through Tania Negro and Kan Seang.

In her case, she is charged with one charge of supplying a prohibited drug greater than the commercial quantity, namely 770 grams of heroin. That is an offence contrary to s 25(2) of the Drug (Misuse and Trafficking) Act. It carries a maximum penalty of twenty years imprisonment with a standard non-parole period of ten years. In addition, she asks me to take into account a charge of supplying a prohibited drug greater than the indictable quantity, namely 12.25 grams of methylamphetamine. The supply charge relates to eighteen charges similar to the matters referred to in her mother's case and the supplies extend between 20 July 2011 and 8 November 2011.

Objectively again, it is a serious matter involving the introduction of a significant amount of heroin into the community. It is an offence that requires a sentence to be imposed that reflects both general and specific deterrence as is reflected by the head sentence available and the standard non-parole period that has been fixed. In her case she has entered a plea of guilty at the earliest opportunity and she too, is entitled to the maximum discount of 25 per cent in relation to that plea of guilty.”

81. The sentencing Judge then considered the subjective circumstances of Kelly Eldridge (ROS6-7/AB16-17):

“In her case she is 33 years of age. She was in custody for two days and then from 14 November she has been in continuous custody. Because of those two days, any sentence should date from 12 November 2011. She was born in Adelaide and her parents separated when she was six months old. She, too of course, comes from an Aboriginal background, raised by her mother in Bathurst. As I have already indicated in her mother's case, her mother had a longstanding heroin abuse problem and it appears from the reports tendered in Mrs Eldridge's case that many members of her family also had substance abuse problems.

A report from Duffy & Robilliard psychologists has been tendered. That indicates that she had a problem over the years with a sexual assault which occurred when she was five. She became pregnant at the age of 16 and suffered from post-traumatic stress disorder and the tragedy in her case is that she has six children aged between 6 and 16. She only lived sporadically with the father of the children and it appears from the reports and references tendered that she has been responsible largely for raising the children herself.

Of course, she has now been in custody for nearly two years and the children are being cared for elsewhere. It is difficult to ignore the fact that there are so many children and some children of such a young age that are going to be deprived of their mother. However, the law is that it is only in a highly exceptional case that the impact on the family is one that should result in any significant decrease in the sentence, the reason for that being that the fact of the impact of the family is because of the commission of the offence and it is a problem that is caused by the offender herself.

She had, according to the reports, a history of regular heavy drinking and then the use of ice and she reports persistent anxiety since the age of 16. Obviously living in the way she has it has been difficult to raise six children and take responsibility for them and she appears to be a person who has been prepared to take responsibility for a number of matters. She has been doing a course at TAFE, at one stage she was looking to do a certificate relating to mothering at a distance and strangely in relation to the commission of the offence, I note that in the Duffy & Robilliard report they say:

‘Over time Kelly became responsible for organising and collecting purchase of heroin for her mother and others. From around September 2011, Kelly also began to organise concurrent purchases to support her own use of ice and amphetamine. Kelly described a pattern of recurrent purchases of substances as a means of supporting, increasingly regular use by herself and others...’

She does seem to be a person who has been prepared to accept responsibility, unfortunately in this case she has accepted the responsibility of helping her mother in the obtaining and distribution of drugs.”

82. His Honour concluded (ROS7/AB17):

“In her case too, it is necessary to bear in mind the head sentence and the non-parole periods as indicators of the sentences Parliament regards as being appropriate in these cases. But taking into account the subjective material tendered in her case, in my view the appropriate sentence for her is exactly the same as the sentence imposed on her mother.”

83. His Honour then passed sentence on Kelly Eldridge, in the terms set out at [5] above.

84. The sentencing Judge then proceeded to deliver remarks on sentence concerning Elizabeth Mackay, Shoula Knight and Tiamber Mackay (ROS8-15/AB18-25).

Kelly Eldridge Ground 2 - Alleged Failure to Take Into Account Remorse on Sentence

85. It is appropriate to commence with Kelly Eldridge’s second ground of appeal. Her first ground of appeal raises a parity issue, which is conveniently addressed at the same time as the sole ground of appeal raised by Suzanne Mackay, likewise a parity issue.

Submissions

86. Ms Cox, counsel for Kelly Eldridge, submitted that the sentencing Judge had not considered her client’s remorse as a matter to be taken into account on sentence. It was submitted that Kelly Eldridge had expressed contrition to the author of the presentence report, to Mr Howard and in her letter which was before the sentencing court.

87. Counsel noted that his Honour had found in favour of Suzanne Mackay on the issue of remorse based upon similar material tendered in her case (see [78] above).

88. It was submitted that, as a practical demonstration of remorse, both Kelly Eldridge and Suzanne Mackay had entered pleas of guilty at the earliest opportunity.

89. Counsel submitted that there was no suggestion in the remarks on sentence that his Honour had examined the cases with respect to the two offenders, for the purpose of finding remorse in the case of one but not the other. It was submitted that this Court should conclude that his Honour had failed to take into account this factor in favour of Kelly Eldridge on sentence.

90. The Crown submitted that a finding as to genuine remorse was a matter within the discretion of the sentencing Judge.

Determination

91. It is necessary to keep in mind that his Honour proceeded to sentence five co-offenders, in ex tempore remarks on sentence delivered at the conclusion of the sentencing hearing. In Currie v R [2013] NSWCCA 267, this Court said at [50]-[51]:

“50   As Spigelman CJ observed in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 577 [48], the conditions under which District Court Judges give such reasons ‘are not such as to permit their remarks to be parsed and analysed’. In R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at 180-181 [34], with the concurrence of McClellan CJ at CL and Hammerschlag J, I observed:

‘… it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour’s reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be ‘as robustly structured as they might otherwise have been’ (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may ‘lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing’ (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]).’

51   It is important to keep these statements in mind, in particular, when considering submissions that his Honour did not refer in the remarks to certain matters which had been the subject of evidence and submissions at the sentencing hearing.”

92. In the course of oral submissions at first instance, counsel for Kelly Eldridge had submitted that a finding of remorse should be made.

93. His Honour noted that Suzanne Mackay had “expressed contrition” (see [78] above). This was not an especially strong finding in her favour for the purpose of s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The complaint of Kelly Eldridge under this ground is that his Honour made no such reference in that part of the ex tempore sentencing remarks as related to her.

94. I am satisfied that what happened here, where there was mention of remorse in the case of one offender but not the other (when there was a similar evidentiary base in each case) is a byproduct of the delivery of ex tempore remarks on sentence for multiple co-offenders, rather than a failure on the part of the sentencing Judge to take remorse into account.

95. I am not persuaded that his Honour failed to take into account, as part of the instinctive sentencing process, remorse as complained of in this ground.

96. This ground of appeal should be rejected.

Kelly Eldridge Ground 3 - Suggested Failure to Take Into Account Prospects of Rehabilitation

Submissions

97. Ms Cox relied again upon the fact that the remarks on sentence concerning her client made no reference to her prospects of rehabilitation. By way of contrast, it was noted that his Honour had addressed the prospects of rehabilitation of Suzanne Mackay (see [78] above).

98. Counsel submitted that the material before the sentencing Judge was strongly in favour of a positive finding of prospects of rehabilitation. Had this issue been considered, it was submitted that a finding would most likely have been that Kelly Eldridge had good prospects of rehabilitation.

99. It was submitted that error had been demonstrated in failing to so find at first instance.

100. The Crown pointed, once again, to the discretionary nature of a finding with respect to prospects of rehabilitation.

101. During the course of oral submissions, the Crown acknowledged that the material before the sentencing Judge with respect to Kelly Eldridge was probably more favourable from the point of view of prospects of rehabilitation than that concerning Suzanne Mackay (T10, 12 February 2015).

Determination

102. Once again, it is necessary to keep in mind the ex tempore nature of the remarks on sentence delivered immediately after the sentencing hearing (see [91] above).

103. This Court should be cautious in finding error through the absence of reference to a factor in ex tempore sentencing remarks.

104. His Honour took a guarded view of Suzanne Mackay’s prospects of rehabilitation (see [78] above). Kelly Eldridge’s subjective circumstances (see [81] above) suggest that some caution was required in her case as well in assessing prospects of rehabilitation.

105. I am not persuaded that the sentencing Judge failed to have regard to Kelly Eldridge’s prospects of rehabilitation. Once again, I consider that the absence of any reference to this topic is a byproduct of the delivery of ex tempore remarks on sentence for multiple co-offenders, rather than a failure to have regard to this factor on sentence.

106. This ground of appeal should be rejected.

Kelly Eldridge Ground 4 - The Sentence Was Manifestly Excessive

107. Ms Cox submitted that the sentence imposed upon her client was manifestly excessive. The Crown submitted that manifest excess had not been demonstrated in this case.

108. This ground of appeal may be dealt with shortly. To make good this ground, it is necessary to demonstrate that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325-326 [6].

107. The offence for which Kelly Eldridge was sentenced was punishable by imprisonment for 20 years with a standard non-parole period of 10 years. A further serious offence was taken into account on a Form 1. The offending conduct took place over several months and, as the sentencing Judge found, Kelly Eldridge was heavily involved in this course of serious offending, which saw a significant amount of heroin distributed to citizens in the Bathurst area. When regard is had to all relevant objective and subjective factors, it has not been demonstrated that the sentence imposed was unreasonable or plainly unjust.

108. I would reject this ground of appeal.

Kelly Eldridge Ground 1 - The Parity Ground Based Upon Comparison With Sentences Imposed on Seang, Negro and Suzanne Mackay

Suzanne Mackay’s Sole Ground - The Parity Ground Based Upon Comparison With Sentence Imposed on Seang

111. It is appropriate next to consider the parity grounds advanced by each Applicant. Reference should be made to the sentencing proceedings concerning Negro and Seang and the sentences imposed upon each of those offenders.

Sentencing of Tania Negro

112. Negro was sentenced on 1 October 2013 following a separate sentencing hearing before Blanch CJ of DC. She pleaded guilty to supplying a commercial quantity of heroin (748 grams), an offence carrying a maximum penalty of 20 years’ imprisonment with a standard non-parole period of 10 years. Negro requested that an additional charge be taken into account on a Form 1, being a charge of supplying the indictable quantity of methylamphetamine (12.25 grams).

113. Negro was sentenced to imprisonment comprising a non-parole period of three years with a balance of term of two years.

114. Negro was 27 years old at the time of the offences and 28 years old at the time of sentence. She had one prior conviction in 2009 for low-range PCA, for which she received a six-month good behaviour bond under s.10 Crimes (Sentencing Procedure) Act 1999.

115. In ex tempore sentencing remarks delivered later on 1 October 2013, Blanch CJ of DC referred to the facts of the offences, and the involvement of Negro (ROS2-3/AB128-129):

“It appears at the beginning that this offender was operating on behalf of Mr Seang and at his instruction.

As the supplies and telephone conversations continued it appears that this offender was taking a somewhat more active part, for example in one telephone call on 10 September Sue Mackay called the offender and wanted to get a stronger dose of the drug and this offender said ‘No worries’ and was obviously taking an active part in the conversation between herself and Sue Mackay and indicating a degree of autonomy or ability to negotiate about the nature of the heroin being supplied.

That really is the key question so far as she is concerned in this case because in the ordinary course of events she, with Mr Seang, were supplying the heroin that was being distributed by the Mackay family and in the ordinary course of events a longer sentence would be imposed on her than I have imposed on the ringleaders in the Mackay family.

However, Mr Givorshner [counsel for Negro] quite correctly raises the point that although she may have been on the face of it further up the line of supply and therefore deserving of a longer punishment, one really has to look at the role that she played and there is a real possibility that the role she played was not as an initiator in the offence but simply as someone acting at the behest of Mr Seang.

And in order to resolve that issue it is really necessary to look at the subjective aspects of this offender and how she came to be involved in the offence.”

116. His Honour then considered Negro’s subjective circumstances, and their interaction with her offending conduct (ROS3-4/AB129-130):

“Briefly her background is that she was born in Fairfield in 1984. She turns 29 next week, she grew up with her mother and father but when her parents separated when she was 11 it transpired that the man she thought of as a father was not a father at all and her real father had moved back to Cambodia.

Her mother then began a new relationship with a man called Leng Yim who was abusive towards her and cruel and violent and given to drinking and he got her mother involved in selling drugs and it was in that sort of dysfunctional background that she grew up and she made every effort to stay away from her mother while her mother was in that relationship.

Her mother ended that relationship and then formed a relationship with Kan Seang who is the co-accused in this case.

So that in terms of looking at this question of just what part did she play and how much autonomy did she have, the man Kan Seang is a person who was standing in the position of her father and being her mother's partner. And all of the evidence points to the fact that she became involved in the commission of this offence when she undertook to pay her mother's debts and when she was at a particularly low point in her life and she took up the offer from Kan Seang to assist him in the drug dealing.

None of that of course excuses her because she was well and truly aware from her own upbringing about drug dealing and she was well and truly aware that he was involved in drug dealing and that she was assisting him in the course of the drug dealing.

So that it is a case where she has to be punished on the basis that she deliberately became involved in a drug trade that she knew all about and she knew, and must have known, of its illegality and the deleterious effects that it has in the community.”

117. His Honour then found that Negro played an active, but subsidiary, part to that played by Seang (ROS4/AB30):

“But nonetheless all of those factors when they are put together do lead me to the conclusion on the balance of probabilities that so far as she was concerned the part she played in it was an active part but it was a subsidiary part to that played by Kan Seang.

On that basis it is not appropriate for me to approach the sentencing on the basis that she was in a more culpable position than the members of the Mackay family who were involved in organising the distribution of the heroin.

The significant impact of that conclusion is that I had initially concluded that it would be appropriate to start thinking of her sentence as one of 12 years by way of a head sentence which could then be discounted.

Because of the conclusion that I have just reached in my view it is more appropriate to accede to the submission of Mr Givorshner that the appropriate starting point is ten years rather than 12 years.”

118. His Honour then allowed a 25% discount for Negro’s plea of guilty, and a further 25% discount for her willingness to give assistance in what was then expected to be the trial of Seang. Application of the combined 50% discount reduced the head sentence to one of five years’ imprisonment.

119. His Honour then considered what were described as “other compelling subjective features in her case” (ROS5/AB131). She had children aged six and eight years and was eight months’ pregnant at the time of sentence. She had been married in 2012 and her partner was supportive of her. She came from a very dysfunctional background from which she had managed to escape for a period of time. His Honour found that it appeared to be the case “that it was only because of the personal stresses that I have referred to that she succumbed to the invitation to become involved in this heroin dealing” (ROS6/AB132).

120. His Honour found her prospects of rehabilitation to be “quite good”. In making a finding of special circumstances, his Honour noted that Negro had been exposed to drugs at one time and had succumbed to their use, so that a longer period than the statutory ratio was appropriate by way of non-parole period. As noted earlier, his Honour proceeded to impose a total sentence of imprisonment for five years comprising a non-parole period of three years and a balance of term of two years.

Sentencing of Kan Seang

121. Seang was sentenced on 4 February 2014 by Garling ADCJ. Although he had entered a plea of not guilty at an earlier time, he pleaded guilty to a charge of supplying a commercial quantity of heroin (574 grams), an offence punishable by imprisonment for 20 years with a standard non-parole period of 10 years.

122. After reciting the basic facts, Garling ADCJ referred to a factual dispute on sentence (ROS2/AB136):

“He agreed to supply a total of not less than 574 grams of heroin to members of the Mackay family or their representatives. He is charged on the basis of an ongoing offence of supply where the quantity of the drug supplied was not less than the commercial quantity of heroin.

The facts then set out the details of the fourteen occasions upon which heroin was supplied. When the offender pleaded guilty he disputed the Crown facts and there was a hearing held in relation to those facts. In brief the dispute was that he said he had only dealt in drugs on six occasions, supplying a total amount of heroin of just over 250 grams, and that the main person involved was Ms Negro.

She gave evidence before me. I have given a judgment in relation to this matter, and I found that this offender was the person who commenced supplying the drugs, that he used her to assist him. Certainly that was during the months of July, August and into September. She then found her own supplier and she took a much more active role from that time onwards, and in the end she supplied drugs on more occasions. This offender supplied a higher amount of drugs.

There can be no doubt that this offender knew exactly what he was doing. He was supplying a significant amount of drug on a significant number of occasions. He knew that the drug was being on-sold to people who used heroin.”

123. His Honour then considered Seang’s subjective circumstances (ROS3/AB137):

“The offender is 79 years of age. He has had a difficult life, at least before he came to Australia. He lived in Cambodia with his wife and four children. He joined the army and he fought against Pol Pot and Khmer Rouge - that was the army supported by the USA - he fought against them between 1970 and 1975 until Pol Pot took over.

He then went to live in a village with his family and was then sent to another province away from his family. He later learned that it was most probable that his wife and four children had been murdered. The children were aged between two and ten years.

He then had to escape. He went to Thailand and then, as a refugee, came to Australia in 1978. It is a very tragic past life he has had.

Since his arrival in Australia he appears to have been a law abiding citizen until he commenced selling heroin. He has no criminal record before this. His life in Australia appears to be unremarkable. He has no relatives living in Australia. He has a child, but has no contact with that child.

He has been in custody since 9 February 2012, just on two years. On one occasion he was assaulted in gaol and he still has pain in the chest area.

He said in evidence that he had various health problems. He had pain in his chest, problems with his kidney, he is a diabetic, has cholesterol problems, both legs become swollen. At times he has difficulty in walking and has pain in his joints. He takes medication for diabetes, cholesterol, and Panadol for pain.

I am satisfied there are special circumstances. They are his age and it is the first time he has been in custody.”

124. His Honour allowed a 10% discount for Seang’s guilty plea entered on the day fixed for trial.

125. Findings adverse to Seang were made with respect to remorse and his truthfulness (ROS4/AB138):

“I do not accept that he has demonstrated remorse. When questioned about it he eventually said he did. It was far from convincing, but clearly - as far as I am concerned - he did not tell the truth when giving evidence before me, nor did he tell the truth to the police, and I am not prepared to make a finding of remorse. However I do not believe he will offend in this way upon release. Obviously his age will probably prevent that, and also by now he would realise the seriousness of the penalties for this sort of offence.”

126. His Honour took into account Seang’s age, health and difficulty with the English language in the following way (ROS4/AB138):

“There is no doubt that his age will make it far more difficult for him to serve his sentence than a younger person.

I have no doubt his physical ailments will also make it more difficult, and his difficulty with the English language will cause him some isolation and make his term of imprisonment more difficult.

It was put to me early in this sentencing proceeding that he did not want to die in gaol. I understand that sentiment, at the same time this is a most serious offence.”

127. The sentencing Judge then turned to the question of parity (ROS5-6/AB139-140):

“The question of parity is an important issue. A number of persons were charged with various drug offences of a similar nature to this. They were sentenced by the Chief Judge of this Court in October 2013. I think there were five members of the Mackay family who received varying sentences. Certainly of those more involved in the drug dealing there were sentences imposed of eight years, with a five year non-parole period, with other sentences for other members.

In relation to parity the main offender I have to consider is Ms Negro, who was charged with an identical offence. I have indicated the part I believe she played and this offender played. I should say that the Chief Judge when sentencing her indicated that the starting point for her was ten years imprisonment. He subsequently reduced that by 50% as a result of her plea of guilty and her offer of assistance. She was sentenced to a term of imprisonment of five years with a non-parole period of three years. It was about 60% of the head sentence.

She was 29 years of age. She had two children and was pregnant at the time she was sentenced. I am told that child was born in gaol. She gave evidence in this hearing, and is still in custody. She had no criminal record.

There was a difference however, the facts in relation to the charge against her set out 18 occasions on which she dealt in drugs, this accused's facts set out 14 occasions. She was charged with supplying 748 grams of heroin, this accused 574 grams. And she also had a further matter on a Form 1. I take all those matters into account.

These of course are - as I said - most serious offences. This offence is an offence which must be punished by a severe period of custody. A very difficult part of this sentence is the offender's age. But I am also aware that when he was in his seventies he was clearly dealing with heroin, selling heroin for a profit, and he is a man - whilst having health problems - still has a significant degree of fitness.

In formulating this sentence and taking into account parity with Ms Negro, whose sentence started at ten years, I formed the view that the starting point for this offender should be lower than that because of the reasons I previously gave. I therefore reached a starting point a little under nine years. Then reducing that by 10% for the plea of guilty I reached a head sentence of eight years.

The normal non-parole period would be six years. As I understand it Ms Negro's non-parole period was about 60% of the head sentence. I then took into account the age of this offender and the difficulty he will have in serving his sentence. I concluded that the proper non-parole period, given those matters, was four years.”

128. It will be immediately apparent that Garling ADCJ concentrated on the sentencing of Negro for parity purposes, with no examination being undertaken of the sentences imposed upon other offenders, including Kelly Eldridge and Suzanne Mackay. It is clear that his Honour was aware of the sentences imposed by Blanch CJ of DC on 1 October 2013 upon all offenders involved in this criminal enterprise.

Submissions on Behalf of Kelly Eldridge

129. Ms Cox submitted that Seang and Negro played a greater role in the drug supply organisation, being described in the Statement of Agreed Facts as “upper level” suppliers (see [15] above). It was submitted that both were higher in the chain of supply than Kelly Eldridge.

130. It was submitted that Negro’s starting point sentence was 10 years’ imprisonment and Seang’s starting point sentence was nine years’ imprisonment. Kelly Eldridge had a starting point sentence of 10 years and eight months.

131. It was submitted that, after a late plea (and a disputed facts hearing resolved against him), Seang’s final sentence was eight years’ imprisonment with a non-parole period of four years. Negro’s final sentence, after a 50% discount for her plea and assistance, was imprisonment for five years with a non-parole period of three years. Kelly Eldridge’s sentence was one of eight years’ imprisonment with a non-parole period of five years.

132. Whilst acknowledging the difference in subjective circumstances of Seang and the fact that he faced one charge only, it was submitted that the parity ground is made out by reference to Seang’s sentence and that of Kelly Eldridge.

133. Again, whilst acknowledging that both Negro and Kelly Eldridge were sentenced for a single offence (and a Form 1 matter), and the additional discount extended to Negro for her assistance to authorities, it was submitted that the parity ground was made out in comparing her sentence with that of Kelly Eldridge.

134. It was submitted that Suzanne Mackay had recruited Kelly Eldridge into the drug dealing operation, and that this was a significantly aggravating factor with respect to Suzanne Mackay. It was submitted further that Kelly Eldridge’s subjective case was more compelling than that of her mother. It was submitted that Kelly Eldridge ought to have been able to rely on findings in her favour on the issues of remorse and rehabilitation as addressed in the second and third grounds of appeal.

135. Counsel submitted that due proportion required that Kelly Eldridge receive a lesser sentence than that imposed upon Suzanne Mackay.

136. Ms Cox submitted that a comparison of the role of Kelly Eldridge in the drug supply operation, and the level of criminality she displayed when compared with the roles and levels of criminality of Seang, Negro and Suzanne Mackay, ought lead to the conclusion that due parity has not been displayed and the sentence imposed upon Kelly Eldridge, and that she has a legitimate sense of grievance in this respect.

Submissions on Behalf of Suzanne Mackay

137. Mr Bruce SC, for Suzanne Mackay, addressed her single ground of appeal, based on parity, by reference to the sentence imposed on Seang.

138. It was submitted that Garling ADCJ had erred on the parity issue, by confining attention to the sentence imposed upon Negro and not those imposed on other offenders, including Suzanne Mackay.

139. It was submitted that Seang was involved in the actual supply of 574 grams of heroin on 14 occasions for commercial gain. On the other hand, Suzanne Mackay was involved in the actual supply of 27.6 grams of heroin on one occasion (the second count) and was involved in receiving (along with other members of her family) 740 grams of heroin for supply on 16 occasions.

140. Further, Suzanne Mackay (and her co-offenders, Kelly Eldridge and Elizabeth Mackay) all had serious drug addictions. Some of the heroin purchased from Negro and Seang was to be used by members of the Mackay family to support their addictions, although a portion of the heroin purchased was to be on-sold into the community as well.

141. Whilst acknowledging Seang’s age and health as distinguishing factors, Mr Bruce SC pointed to the finding of absence of remorse in his case.

142. Senior counsel pointed to a starting point in the case of Seang of “a little under nine years” (before the 10% discount for his late plea of guilty), with that starting point having taken into account Seang’s objective offending and subjective features.

143. The starting point in relation to Suzanne Mackay was in the order of 10 years and eight months’ imprisonment, given the head sentence of eight years which included a 25% discount for her pleas.

137. Even allowing for the fact that Suzanne Mackay was to be sentenced for two offences, it was submitted that the difference in the starting points with respect to these two offenders was stark.

138. It was submitted that the disparity as between these two offenders was glaring, particularly after comparing the moral culpability of each offender. In these circumstances, it was submitted that Suzanne Mackay had a legitimate sense of grievance by reference to the sentence imposed on Seang.

Submissions of the Crown

146. The Crown pointed to the significantly different subjective circumstances of Seang (his age and health) together with the fact that he was sentenced on one charge only.

147. It was submitted that different Judges might take different views as to the culpability of offenders, and there might be differences in facts and impressions formed by each Judge as to the roles, levels of responsibility and prospects of rehabilitation: Rae v R [2011] NSWCCA 211 at [52]-[53].

148. With respect to Negro, the Crown submitted that strong findings were made as to her involvement in the offending and her subjective circumstances, with the combined 50% discount being given for her plea of guilty and assistance to authorities.

149. As a result of this dissimilarities, the Crown submitted that it is inappropriate to compare the sentence of Negro with that imposed upon Kelly Eldridge.

150. It was submitted that an examination of the remarks on sentence concerning Kelly Eldridge and Suzanne Mackay did not give rise to any legitimate sense of grievance on the part of the former, arising from the imposition of similar sentences upon each of them for essentially similar criminal conduct.

151. The Crown submitted that neither Kelly Eldridge nor Suzanne Mackay had demonstrated a legitimate sense of grievance arising from the sentences imposed upon their co-offenders.

Determination

152. The present appeals arise from a series of sentencing decisions:

1. the sentencing on 1 October 2013 by Blanch CJ of DC, following a joint sentencing hearing, of Suzanne Mackay, Kelly Eldridge, Elizabeth Mackay, Tiamber Mackay and Shoula Knight;

2. the sentencing on 1 October 2013 by Blanch CJ of DC, following a separate sentencing hearing, of Negro;

3. the sentencing on 4 February 2014 by Garling ADCJ, following a separate sentencing hearing, of Seang.

153. In Rae v R, with the concurrence of McClellan CJ at CL and Hidden J, I made some observations at [50]-[56] concerning practical issues which may arise where related offenders are sentenced by different Judges:

“50   Courts have emphasised the desirability of related offenders appearing for sentence at the same time before the same Judge, and the problems which may arise where that practice is not followed.

51   The authorities were gathered in the decision of this Court in Dwayhi v R; Bechara v R [2011] NSWCCA 67 (‘Dwayhi’) at [33]-[46]. It is appropriate to once again refer to these principles.

52   There are significant advantages where related offenders are sentenced by the same Judge at the same time, with remarks on sentence containing factual findings and conclusions concerning the relative criminality of the offenders and differing subjective features of each of them: R v Swan [2006] NSWCCA 47 at [71]; Gurney v R; Willetts v R [2011] NSWCCA 48 at [81]-[82]; Dwayhi at [39]-[43].

53   Different Judges may take different views as to the relevant culpability of related offenders: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; R v Mercieca [2004] VSCA 170 at [6]; Dwayhi at [35], [37].

54   Where co-offenders are dealt with separately, there may be differences in the substratum of facts upon which the different sentencing Judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved, with this flowing in part from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders: R v Rodden [2005] VSCA 24 at [28]; Dwayhi at [38].

55   Strong maintenance of the practice of related offenders being sentenced by the same Judge at the same time will serve the public interest in consistent and transparent sentencing of related offenders which underlies the parity principle itself: Dwayhi at [46].

56   A recurring theme in the authorities is that, where co-offenders are sentenced after hearings before different Judges, there may be different evidence and submissions, leading to different conclusions being expressed by the sentencing Judges concerning criminal conduct of persons involved in the same criminal enterprise.”

154. The relevant principles to be applied, where parity is raised on appeal, were outlined in Rae v R at [59]-[63]:

“59   Disparity between sentences is not of itself a basis of appellate intervention, but a factor to be weighed when the Court considers whether the sentencing process has been attended by error and, if so, whether the Court should intervene: R v Li [2005] NSWCCA 154 at [44]; Dwayhi at [25].

60   A complaint of disparity accepts that the sentence imposed on an offender cannot otherwise be challenged. It is the sentence imposed upon a co-offender which is said to give rise to a sense of injustice, not the sentence imposed upon the offender: Lewins v R [2007] NSWCCA 189 at [7]; Dwayhi at [26].

61   The test for determining whether there is a legitimate sense of grievance is objective. What has to be demonstrated by an applicant is not that he or she feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the applicant’s grievance is justified: R v Wei Pan [2005] NSWCCA 114 at [34]; Dwayhi at [21].

62   Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective circumstances. This Court will not necessarily intervene where the co-offender’s sentence is so inadequate that the Court should not take it into account: Lewins v R at [7]; Dwayhi at [21].

63   A ground asserting disparity is concerned with such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of a reasonable and impartial observer that justice has not been achieved because one offender has been unfairly treated, having regard to the sentence passed upon the other offender. What is required is a gross, marked, glaring or manifest disparity: England v R; Phanith v R [2009] NSWCCA 274 at [61]-[67]; Dwayhi at [23]-[24].

155. In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462, French CJ, Crennan and Kiefel JJ said at 474-475 [31]-[32] (footnotes omitted):

“The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.

A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment.”

156. Several of the offenders in this case were charged with different offences. As French CJ, Crennan and Kiefel JJ noted in Green v The Queen; Quinn v The Queen at 474 [30], the parity principle remains applicable with necessary qualifications:

“The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen [[2010] NSWCCA 60; (2010) 77 NSWLR 540 at 588-589 [201]- [203]. See also Farrugia v The Queen [2011] VSCA 24 at [8]- [19]], there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.”

157. As might be expected, there were differences between the subjective circumstances of the different offenders whose sentences are presently under consideration.

158. It is the case that Seang was to be sentenced for one offence of supplying a commercial quantity of heroin.

159. Suzanne Mackay was to be sentenced for an offence of supplying a commercial quantity of heroin and a further offence of supplying an indictable quantity of heroin.

160. Kelly Eldridge was to be sentenced for an offence of supplying a commercial quantity of heroin, with an offence of supplying an indictable quantity of Methylamphetamine to be taken into account on a Form 1.

161. Negro was to be sentenced for an offence of supplying a commercial quantity of heroin, with a Form 1 offence of supplying an indictable quantity of Methylamphetamine.

162. In my view, the true points of comparison relate to the primary charge against each of Kelly Eldridge and Suzanne Mackay. Kelly Eldridge’s other offence was taken into account on a Form 1. An entirely concurrent fixed-term sentence was imposed for Suzanne Mackay’s second offence.

163. The starting point in relation to Seang’s sentence was a little under nine years. The starting point with respect to the sentences imposed upon each of Kelly Eldridge and Suzanne Mackay was in the order of 10 years and eight months.

164. Seang’s offence was committed solely for financial gain. He was not a drug user.

165. The offences of Kelly Eldridge and Suzanne Mackay were committed for a combination of reasons, including the feeding of their own drug addiction and intended distribution of drugs to others in the Bathurst region.

166. Seang had no prior convictions and Suzanne Mackay and Kelly Eldridge had very limited criminal histories.

167. Although the age and health of Seang assisted him on sentence, there was no finding of remorse and his evidence had been rejected at a disputed hearing on facts for the purpose of sentence.

168. I am satisfied that the marked disparity in starting points for the sentences of Seang on the one hand, and Kelly Eldridge and Suzanne Mackay on the other hand, gives rise to a legitimate sense of grievance on the part of each of these Applicants.

169. I have kept in mind that Seang was sentenced by a different Judge on materials adduced at that sentencing hearing. However, the findings arising from Seang’s factual hearing were largely adverse to him on sentence. Although Seang’s age and health were important considerations as part of his subjective case, the objective gravity of his offending was substantial.

170. I am satisfied that each of Kelly Eldridge and Suzanne Mackay have made good their parity grounds by reference to the sentence imposed upon Seang.

171. I am not persuaded that Kelly Eldridge has demonstrated a legitimate sense of grievance by reference to the sentence imposed on Negro. The findings made with respect to Negro serve to explain the approach of Blanch CJ of DC in sentencing her, with his Honour being no doubt well aware of the sentences imposed earlier that day on the other offenders, including Kelly Eldridge.

172. I am not persuaded that Kelly Eldridge has made good her parity ground referring to the sentence imposed upon Suzanne Mackay. The relevant similarities and differences were taken into account by the sentencing Judge in determining sentence.

173. The parity ground has been made good by each Applicant with respect to the sentence imposed upon Seang.

Resentencing the Applicants

174. Once error is established, it becomes this Court’s duty to resentence unless in the exercise of its discretion, it concludes that no other sentence, whether more or less severe, is warranted and should have been passed: s.6(3) Criminal Appeal Act 1912; Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 at 957-958 [42]-[43].

175. As the appeals are to be allowed on the ground of disparity, the Court should have regard to the sentence (and the starting point) in Seang’s case and give it appropriate weight: Green v The Queen; Quinn v The Queen at 474-475 [31]-[32] (see [155] above).

176. On the question of resentence, Kelly Eldridge relied in this Court upon her affidavit dated 5 February 2015 and the affidavit of Stephen Eccleshall dated 6 February 2015. Those affidavits recount the steps taken by Kelly Eldridge in custody to progress her rehabilitation, together with developments in her family since sentence was imposed. She has undertaken a number of courses in custody which evidences a constructive approach towards her rehabilitation.

177. On the totality of evidence before this Court, it is appropriate to find that Kelly Eldridge has demonstrated remorse and that she has reasonable prospects of rehabilitation.

178. I have regard to the objective gravity of the offences committed by each of Kelly Eldridge and Suzanne Mackay together with their subjective circumstances as found by the sentencing Judge.

179. A finding of special circumstances should be made in each case with each Applicant requiring a longer period of supervision after release given long-term substance abuse issues. However, in each case, the non-parole period represents the minimum period for which each Applicant should be detained in custody for her offending conduct.

180. The sentences to be imposed upon the Applicants will not be identical, having regard to the additional evidence with respect to Kelly Eldridge made by reference to the totality of evidence before this Court, and my assessment of the relative objective gravity of the offences committed by each Applicant.

181. In the case of Kelly Eldridge, before application of the 25% discount for her plea of guilty, a head sentence of nine years’ imprisonment is appropriate. After application of the 25% discount, and giving effect to the finding of special circumstances, the sentence to be imposed will comprise a non-parole period of four years with a balance of term of two years and nine months.

182. In the case of Suzanne Mackay, before application of the 25% discount for her plea of guilty, a head sentence on Count 1 of nine years and six months is appropriate. After application of the 25% discount, and giving effect to the finding of special circumstances, the sentence to be imposed (after some rounding) will comprise a non-parole period of four years and six months with a balance of term of two years and seven months.

183. With respect to Kelly Eldridge, I propose the following orders:

1. leave to appeal granted and appeal allowed;

2. sentence imposed at the Bathurst District Court on 1 October 2013 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.

184. With respect to Suzanne Mackay, I propose the following orders:

1. leave to appeal granted and appeal allowed;

2. confirm the sentence imposed on Count 2 in the Bathurst District Court on 1 October 2013;

3. quash the sentence imposed on Count 1 in the Bathurst District Court on 1 October 2013;

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.

185. HAMILL J: I agree with Johnson J.

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Decision last updated: 03 June 2015