R v Jeffrey; R v Mealey

[2009] NSWSC 202

CITATION:	R v Jeffrey; R v Mealey [2009] NSWSC 202
HEARING DATE(S):	13 February 2009
JUDGMENT DATE :	27 March 2009
JUDGMENT OF:	Fullerton J
DECISION:	Frances Megan Jeffrey on the charge of manslaughter you are sentenced to a non-parole period of 3 years and 6 months commencing on 7 August 2007 and expiring on 6 February 2011 with a balance of term of 2 years and 6 months expiring on 6 August 2013. On the charge of robbery in company you are sentenced to a fixed term of 2 years and 6 months also commencing on 7 August 2007. Raelene Erica Mealey on the charge of manslaughter you are sentenced to a non-parole period of 22 months commencing on 7 August 2007 and expiring on 6 June 2009 with a balance of term of 2 years and 2 months expiring on 6 August 2011. On the charge of robbery in company you are sentenced to a fixed term of 18 months also commencing on 7 August 2007.
CATCHWORDS:	CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - robbery in company - grounds for discrimination between co-offenders on parity principles
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Listening Devices Act 1984 Telecommunications (Interception and Access) (New South Wales) Act 1987
CATEGORY:	Sentence
CASES CITED:	Elyard v R [2006] NSWCCA 43 GAS v R; SJK v R [2004] HCA 22; 217 CLR 198 Giorgianni v R (1985) 156 CLR 473 Pearce v R [1998] HCA 57; 194 CLR 610 R v Bolt [2001] NSWCCA 487; 126 A Crim R 284 R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hoeler [2004] NSWCCA 184; 147 A Crim R 520 R v King [2004] NSWCCA 444; 150 A Crim R 409 R v Lavender [2005] HCA 37; 222 CLR 67 R v McNaughton [2006] NSWCCA 242; 163 A Crim R 381 R v Sandness [2000] NSWSC 821 R v Taufahema [2007] HCA 11; 228 CLR 232 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Wheatley [2007] NSWSC 1182 Towers v R [2008] NSWCCA 283 Veen v R (1979) 143 CLR 458 Wilson v R (1992) 174 CLR 313
PARTIES:	The Crown Frances Megan Jeffrey (Offender) Raelene Erica Mealey (Offender)
FILE NUMBER(S):	SC 2008/17662; 2008/16460
COUNSEL:	J Kiely SC (Crown) P Young SC (Jeffrey) M Ierace SC (Mealey)
SOLICITORS:	Director of Public Prosecutions (Crown) M Croke (Jeffrey) N Skinner (Mealey)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

FULLERTON J

27 MARCH 2009

2008/17662 R v FRANCES MEGAN JEFFREY
2008/16460 R v RAELENE ERICA MEALEY

REMARKS ON SENTENCE

1 HER HONOUR: On their arraignment on 5 December 2008 Frances Megan Jeffrey and Raelene Erica Mealey entered pleas of guilty to an indictment charging them jointly with one count of causing the death of Joseph Kelly in circumstances amounting to manslaughter and a second count of robbery in company contrary to s 97(1) of the Crimes Act 1900. The first count carries a maximum penalty of 25 years imprisonment and the second a maximum penalty of 20 years imprisonment.

2 The deceased was the victim of the robbery. The proceeds of the robbery totalled $700. The offences were committed on 23 October 2006 after the offenders forced entry into the deceased’s home with the intention of robbing him of whatever money he had in order to buy drugs. He was aged 87. He lived alone in a Housing Commission unit at 808/23 Pyrmont Bridge Road, Camperdown. Ms Jeffrey lived in the same complex. Ms Mealey had slept there for a few nights before the robbery. At that time she had no fixed address of her own. After the robbery they left the unit, effectively locking the door behind them by pulling it shut. They left the deceased lying on the floor. Some hours later a neighbour was alerted by the deceased’s cries of pain and distress and a locksmith and ambulance were called. The deceased was transported to the Royal Prince Alfred Hospital.

3 On 24 October 2006 he underwent surgery to treat a hip fracture. A dynamic screw was surgically inserted. Thereafter he contracted a bowel infection causally related to the antibiotics prescribed to promote healing and guard against infection. He also contracted right lower lobe pneumonia and deep vein thrombosis in both calves. Within ten days the deceased’s condition deteriorated. He subsequently lapsed into a coma and eventually died on 29 November 2006.

The plea of guilty in the Local Court

4 Ms Mealey entered pleas of guilty in the Local Court on 16 October 2008 to the charges upon which she stands to be sentenced. Ms Jeffrey entered pleas of guilty on 6 November 2008. At this time the prosecution withdrew charges of murder, aggravated break and enter with intent to commit a serious indictable offence in company, and special aggravated break and enter inflicting grievous bodily harm, originally laid against both offenders.

5 On 13 February 2009 the offenders came before me for sentence.

6 Despite the fact that the pleas of guilty were entered over twelve months after the offenders were arrested, the Crown accepted that both were entitled to the 25 per cent discount that attaches to the utilitarian value of an early plea (see R vThomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383) given that from both a forensic and legal perspective there was a considerable difference of expert opinion as to whether the Crown could establish to the necessary criminal standard that the offenders’ conduct materially contributed to the death of the deceased.

7 The issue was ultimately settled after a report from Dr Duflou was served by the Crown in August 2008. This was in response to a report from Associate Professor Hilton served by Ms Mealey’s legal representatives in July 2008. It was Associate Professor Hilton’s view that although there was a clear temporal nexus between the fractured femur, surgery, anaesthesia and the medical deterioration culminating in death, the extent to which the forced entry to Mr Kelly’s home contributed to his death was at best speculative given the presentation and complexity of the surrounding medical issues. Dr Duflou, on the other hand, considered that there was a clear and unbroken progression between the injuries the deceased sustained on 23 October 2006 and his eventual death on 29 November 2006 from the complications that arose directly from those injuries.

The Crown case on sentence

8 The Crown relied upon a statement of facts, drawn in identical terms, in the sentencing proceedings for both offenders. It was compiled from the results of the police investigation that culminated in the arrest of both offenders in August 2007, ten months after Mr Kelly died and eleven months after the robbery. The Crown also tendered various scientific and medical reports together with the criminal records of both offenders. In so far as the circumstances of the robbery are concerned the statement of facts draws exclusively from a statement the deceased provided to the police at the Royal Prince Alfred Hospital on 6 November 2006. (I note he was first spoken to by police on 25 October 2006 when a notebook entry of his account of the robbery was recorded. That was not in evidence.)

9 Ms Jeffrey confirmed her agreement with the statement of facts by formally adopting it in accordance with s 191 of the Evidence Act 1995. In so doing she adopted the deceased’s account of how she and Ms Mealey gained entry to the unit which was, in summary, that Ms Mealey knocked at Mr Kelly’s door, that he resisted her efforts at forcing entry and that it was only then that Ms Jeffrey lent her weight to push at the open door in the course of which Mr Kelly fell and fatally injured his hip. Ms Jeffrey accepted that she took the money from Mr Kelly’s wallet.

10 The statement of facts tendered by the Crown in Ms Mealey’s sentence proceedings was amended to reflect the fact that she took issue with the account given by the deceased implicating her in the mechanism by which entry was forced into the deceased’s unit. She gave evidence that although she opened the outer screen door and knocked on the wooden door (and that she was standing at the door when Mr Kelly opened it), it was Ms Jeffrey, who was crouched down to her left and out of sight, who barged at and through the door in the course of which Mr Kelly fell. Ms Mealey gave evidence that she did not push on the wooden door at all. She also gave evidence that the robbery was solely Ms Jeffrey’s idea, as was the plan to execute it. She said that Ms Jeffrey woke her on the morning of the robbery and asked her to knock on the door of a unit upstairs with a view to getting some money for drugs from the man who lived there. (Although she didn’t say so expressly her plea reflects the fact that she knew that the money would be taken from the man against his will, as distinct from it being given by way of a gift or a loan, and knew of the reasonable possibility that entry would be forced.) She said that although she initially refused to assist she agreed when Ms Jeffrey persisted. Ms Jeffrey did not give evidence.

11 Neither Mr Young of senior counsel who appeared for Ms Jeffrey, nor the Crown Prosecutor challenged Ms Mealey’s account of the circumstances in which she became involved in the robbery. I am satisfied that for this reason, together with the interplay of relevant subjective features of Ms Mealey’s case to which I will later refer, she was vulnerable to Ms Jeffrey’s influence, and this operates in mitigation of sentence to be imposed on the robbery count. In addition, since I am satisfied that Ms Mealey would not have been involved in the incident which resulted in Mr Kelly’s death at all but for Ms Jeffrey’s insistence, her sentence on the manslaughter count will also reflect that fact.

12 Both the Crown and Mr Young did however seek to persuade me to reject Ms Mealey’s account of what happened at the door of Mr Kelly’s unit as untrue. Mr Ierace submitted that I should accept Ms Mealey’s account as both accurate and truthful and that her sentence on the manslaughter count should be further reduced as a result. He did not submit that this aspect of her evidence had any impact on the sentence to be imposed on the robbery count since the robbery was committed as part of a joint criminal enterprise and, that as a matter of law, both offenders were responsible for the acts of each other in carrying out that enterprise. As I understand it, the point of distinction so far as concerns the manslaughter count is that since the Crown could not establish to the criminal standard that the serious injury Mr Kelly suffered in the robbery was seen by Ms Mealey as a possible incident of the joint enterprise to rob him (see R v Taufahema [2007] HCA 11; 228 CLR 232) as distinct from a reasonable person in her position realising that their conduct exposed the deceased to an appreciable risk of serious injury (as to which see Wilson v R (1992) 174 CLR 313), it is not open to view his death as an extension of any common purpose. For this reason, so it is submitted, the nature and quality of the offenders’ separate and unlawful and dangerous acts from which death resulted is material to the imposition of sentence on the manslaughter count for each of them.

13 Mr Ierace conceded however that even were I satisfied that doubt attended the question whether Ms Mealey actually pushed at or through the door under the force of which Mr Kelly fell and sustained the injuries from which he died, she is nevertheless liable to be sentenced as an accessory on the manslaughter count by being present at the time Ms Jeffrey forced her way through the door (knowing in advance that was how entry was likely to be effected) and by her presence providing Ms Jeffrey with intentional assistance and encouragement (see Giorgianni v R (1985) 156 CLR 473 at 506). The question that then arises is whether, despite the fact that the only physical act she performed was knocking on the door, Ms Mealey’s role as an aider and abettor in the particular circumstances of this case has anything other than a marginal impact on the sentence for manslaughter. The Crown submitted it did not. In GAS v R; SJK v R [2004] HCA 22; 217 CLR 198 at 209 the High Court noted that it is not a universal principle that the culpability of an aider and abettor is less than a principal offender, and that in the context of the offence of manslaughter, much will depend on the objective circumstances of the unlawful killing. In GAS the Court was satisfied that the margin of difference was properly regarded as relatively small. The same cannot be said of this case.

Resolving the dispute between the deceased’s account of the robbery and the evidence of Ms Mealey

14 Mr Kelly told police that he was alone in his unit when at about 8.30am he responded to a knock at his door. He said that he opened the door less than a foot when he saw a woman who pushed her shoulder against the door attempting to force her way in. (By his description this person could only have been Ms Mealey.) He said he resisted by trying to shut the door. He claimed that the woman kept pushing at the door at which point Ms Jeffrey, a woman Mr Kelly recognised as residing in his unit block, also pushed against the door which forced the door open. According to the deceased it was the force accompanying the combined efforts of both women to gain entry against his resistance that ultimately forced the door open causing him to fall to the ground. He said he experienced immediate pain in his left hip. Upon gaining entry he said Ms Jeffrey went to a dresser in the lounge room and removed a number of $50 notes, totalling about $700, after which both offenders left the unit without rendering him any assistance.

15 Although Ms Jeffrey accepted Mr Kelly’s version of events and invited me to sentence her on the basis that she only joined in pushing at the door when Ms Mealey was unsuccessful in gaining entry (this being the basis upon which Mr Young cross-examined her), in accepting Ms Mealey’s account I cannot be satisfied that Ms Jeffrey should be sentenced on that basis.

16 As I have already noted, Ms Mealey gave evidence that she agreed to knock on the door at Ms Jeffrey’s request while Ms Jeffrey crouched against the wall to her left so as to remain out of the deceased’s sight. I am satisfied that this was because Ms Jeffrey was concerned that the deceased would recognise her and may not have opened the door. Ms Mealey said that the deceased opened the door by a modest measure whereupon, without warning, Ms Jeffrey leapt from the side, pushed the door open and barged into the unit knocking the deceased to the ground. She said she understood why Mr Kelly might have thought that they both pushed at the door given that the force with which Ms Jeffrey hit the door was, as she described it, like the strength of a man.

17 Having heard from Ms Mealey and taking into account both her demeanour under cross-examination, and the detail of her evidence, I am satisfied that she has given truthful evidence. Her account is entirely consistent with the dominant role of Ms Jeffrey as the instigator and the primary perpetrator of the robbery. That is not to say that I regard Mr Kelly’s account to police as untrue. I do not make that finding. Rather I am satisfied that there is a real risk that his nomination of both offenders as applying force to the door is unreliable given the situation he was confronted with, his age and the injuries he sustained. For that reason I disregard his identification of Ms Mealey as being one of the women who pushed at the door causing him to fall.

18 Having made that finding of fact in Ms Mealey’s favour I am satisfied that it reduces by a margin the sentence to be imposed on the manslaughter count in her sentence proceedings, since her unlawful act must be confined to her conduct as an aider and abettor, together with her failure to provide Mr Kelly with any assistance when she knew he was seriously injured. I am however satisfied that when Ms Mealey knocked at the door she knew that it was Ms Jeffrey’s intention to rob the deceased once he opened the door and that she agreed to participate with her with that objective in mind with a view to sharing the proceeds of the robbery. I note in that connection she was ultimately given only $50 while Ms Jeffrey retained the balance of the stolen money.

The police investigation into the robbery and subsequently into Mr Kelly’s death

19 Until the death of the deceased on 29 November 2006 the police investigation focused on what was at that time thought to be limited to a robbery in company.

20 A neighbour of the deceased identified Ms Jeffrey as one of the robbers from the description the deceased supplied to the police. On 27 October 2006 detectives attended Ms Jeffrey’s premises and offered her the opportunity to participate in an identification parade. She declined. At that stage the police were only investigating the robbery in the course of which Mr Kelly was injured, but not fatally.

21 On 6 November 2006 detectives again attended Ms Jeffrey’s premises at which time she formally refused to participate in an identification parade. Whilst at the premises Ms Jeffrey informed police that she was at a friend’s premises on the morning of the robbery. She supplied the name Darryl McCann and where police could find him. The following day detectives returned to Ms Jeffrey’s premises and enquired whether she would be willing to participate in a formal interview. She again declined.

22 The detectives subsequently visited Mr McCann’s premises. He provided them with a statement in which he said that although he could not confirm that Ms Jeffrey was with him on the morning of the robbery, that it was possible, and that if that were the case she left around 9.30am. Mr McCann also informed the detectives that Ms Jeffrey had a friend named Raelene staying with her.

23 The detectives returned to Ms Jeffrey’s residence on 7 November 2006. On that occasion she provided them with a handwritten note together with diary entries in which she gave the deliberately false impression that her movements on the morning of 23 October 2006 could be accounted for. It would appear that the police were of the view that in these circumstances there was insufficient evidence upon which to charge her at that time.

24 On 4 January 2007 an eyewitness informed police that he saw Ms Jeffrey and another female on the day of the robbery on the same landing as the deceased’s unit. He subsequently identified Ms Jeffrey from a photo identification board.

25 Police were not able to renew contact with Ms Jeffrey until April 2007 when she was located as a resident of a caravan park on the mid north coast of New South Wales.

26 In July 2007, pursuant to warrants issued under the Telecommunications (Interception and Access) (New South Wales) Act 1987 and the Listening Devices Act 1984, police recorded a number of conversations between Ms Jeffrey and Mr McCann where they discussed the death of the deceased.

27 On 2 August 2007 Mr McCann gave an induced statement to the police where he admitted that Ms Jeffrey approached him and asked him to provide her with a false alibi. He also claimed that a woman he knew as Raelene said she was involved in the robbery. There was no suggestion however that she asked him to provide a false alibi on her behalf.

28 Later that day, and at the invitation of the police, Mr McCann telephoned Ms Jeffrey and informed her that he had been speaking to the police at which point she became agitated and ordered Mr McCann to “stick to our story”. She was recorded saying:

“…they’re just graspin’ at straws, Darryl, they want someone to hang this on and they’re gunna try and do it to me…”.

In a later conversation when he told Ms Jeffrey that he had given a statement to police she was recorded as saying:

“…so you just fuckin’ played into their hands. Don’t be sorry, I’m not sorry. I’m … amazed that you could … let this … happen. All you had to do was say to them go away…”.

29 On 6 August 2007 police located Ms Mealey. After initially denying any involvement in the robbery she admitted to knowing Ms Jeffrey and to staying at her unit at the time of the offence. On 7 August 2007 she was placed under arrest. On legal advice she declined to be interviewed but she did adopt the record of conversation with police the previous day. On the same day police arrested Ms Jeffrey. She declined to be interviewed. Both women have been in custody since the date of their arrest.

The objective criminality inherent in the offending

30 Although the crimes of robbery and manslaughter are different in character and attract different maximum terms of imprisonment, given the intrinsic link between the two offences in the unusual circumstances of this case, the level of objective criminality inherent in each offence is relatively similar. In accordance with Pearce v R [1998] HCA 57; 194 CLR 610 it will be necessary to impose separate sentences, however it was the view of all counsel that the sentence on the robbery in company count should be ordered to be served concurrently with the sentence on the manslaughter count, the criminality in the robbery count being wholly subsumed by the manslaughter as the more serious offence. In imposing sentence on the robbery in company count I have considered the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 but distinguish its application in the circumstances of this case.

31 It is well established that of all the offences in the criminal calendar the offence of manslaughter produces the greatest variety of circumstances affecting culpability and attracting, for that reason, a wide range of sentences including, in some circumstances, nominal sentences (see R v Lavender [2005] HCA 37; 222 CLR 67 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 77). In addition, and in recognition of the fact that manslaughter by an unlawful and dangerous act of itself admits a wide range of conduct calling for a wide range of penal consequences, it is necessary that I identify with precision the act that caused Mr Kelly’s death in order to make an assessment of its objective gravity in the sentence proceedings of each offender (see R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 at [133]-[134]).

32 In resolving the dispute between Mr Kelly’s account and Ms Mealey’s evidence I expressed the view that the act causing death is best described as a sequence of related acts. In Ms Jeffrey’s case those acts are constituted initially by forcing her way into the deceased’s premises through the partially opened door when she must have known that Mr Kelly was behind the door and was resisting entry and therefore at risk of being seriously hurt in the process. Self evidently, her actions in that regard were both unlawful and dangerous as were Ms Mealey’s as her accessory. I have already referred to the basis of Ms Mealey’s liability as an accessory. Their individual acts were then accompanied by their joint decision to leave Mr Kelly behind a locked door, aware that he was seriously hurt, and their failure thereafter to do anything to bring his condition to the attention of the ambulance service. Despite the fact that I am satisfied that neither of the offenders intended to harm the deceased, much less that they contemplated that he might die, and further that the injury he suffered was not a result of the intentional application of direct force by either of them, by their pleas of guilty they must be taken to have accepted that a reasonable person in their position would have realised that their conduct exposed the deceased to an appreciable risk of serious injury (see Wilson v R (1992) 174 CLR 313 at 333).

33 The Crown submitted that the facts in the case of R v Sandness [2000] NSWSC 821 are sufficiently similar to the facts in this case to warrant my finding, as Dunford J did in that case, a very high degree of objective criminality. While it is true that in both cases robbery was the motive (and in both cases to feed a drug habit) and that the victim in both cases was a man in his 80’s in his own home, the cause of death in Sandness was as a result of the deceased sustaining multiple fractures to the skull, extreme facial contusions and a subdural haematoma delivered by the application of blunt force, most likely by the use of a house brick. I regard that as a critical point of distinction to the cause of death in this case.

34 I was also taken to the case of R v Wheatley [2007] NSWSC 1182 where Bell J described the act of the offender in pushing the elderly deceased out of his way on a pedestrian crossing and into the path of oncoming traffic as impulsive and loutish and, as such, was an offence at the lower end of the range of objective seriousness for manslaughter offences by unlawful and dangerous act. That case, and the other cases to which her Honour and I were referred where death resulted from a single blow often delivered in spontaneous reaction to conflict of one sort or another, whether alcohol-fuelled or not, also do not seem to me to be directly analogous to this case, at least in so far as Ms Jeffrey is concerned. Her actions were not on any view spontaneous but the result of premeditation and planning however unsophisticated. On the other hand, Ms Mealey’s participation was impulsive, a matter fairly conceded by the Crown. I propose to have regard to that matter in mitigation of the sentence to be imposed on Ms Mealey.

35 In the result, I am satisfied that the serious injury the deceased suffered to his hip by the mechanism of the forced entry to his home motivated by theft, coupled with the offenders’ blatant disregard for his obvious pain and distress, is such as to warrant a finding that the offence of manslaughter by unlawful and dangerous act cannot be fairly described as at the lower end of the range of objective seriousness. I do consider however that the level of seriousness in this case is moderated, to an extent, by the extended chain of causation leading to Mr Kelly’s death. I have already made clear that I regard the level of objective seriousness in Ms Mealey’s offending as less than that of Ms Jeffrey’s. In coming to that view I do not for one moment lose sight of the fact that a life has been lost and that death by any unlawful killing is one of the gravest offences against an ordered society (see R v Bolt [2001] NSWCCA 487; 126 A Crim R 284 at 293)

Features of aggravation

36 The Crown submitted, and I accept, that the objective criminality inherent in both counts and against both offenders is aggravated by the fact that the deceased was an elderly man living alone and who was entitled to expect that in his home he would be protected from risk to his physical health and safety as comprehended by s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”). Unlike the situation in Towers v R [2008] NSWCCA 283, where the Court of Criminal Appeal emphasised that the age of the victims of an aggravated break and enter offence being 60 and 62 did not aggravate that offending since it appeared that their house was chosen at random and for reasons unrelated to the characteristics of the occupants, here I am satisfied that Ms Jeffrey targeted Mr Kelly because of the very fact that he was elderly and lived alone. Although I accept that Ms Mealey did not plan the offence, and in that sense was not party to targeting Mr Kelly, she was aware of the fact that the person to be robbed was an elderly man (she admitted in her evidence that she had seen him feeding birds in the park) and that the robbery would very probably mean his home would be invaded as proved to be the case.

37 The fact that the offenders acted in company is an element of the robbery offence and, accordingly, is not available as an aggravating factor when assessing the objective seriousness of that offending. By contrast, the fact that the two offenders acted in company in committing the offence of manslaughter has some bearing on the assessment of the objective seriousness of that criminality as provided for in s 21A(2)(e) of the Sentencing Act, although in the circumstances of this case, I do not regard it as aggravating an already serious offence of manslaughter to any significant degree.

38 The Crown also submitted that I should regard the failure of the offenders to take any steps to assist the deceased as constituting gratuitous cruelty and, as such, a further feature of aggravation as provided for in s 21A(2)(f) of the Sentencing Act. Quite apart from the fact that I doubt that their conduct, however heartless, satisfies the descriptor of gratuitous cruelty (as to which see for example R v King [2004] NSWCCA 444; 150 A Crim R 409 when a pregnant female victim of a malicious wounding was kicked; see also R v Hoeler [2004] NSWCCA 184; 147 A Crim R 520 at [43], [64] and [80]), given that I regard this aspect of their conduct as intrinsically linked to the act causing death I do not take it into account as a feature of aggravation (see Elyard v R [2006] NSWCCA 43). That said, I consider their failure to render assistance, either at the time they entered the unit or later by placing an anonymous call to the ambulance service, as conduct reflecting a callous lack of empathy for an old and injured man. The fact that their conscience in the moment may have been anaesthetised by drugs, or an appetite for them, does nothing to diminish the condemnation their conduct properly deserves.

39 The features of aggravation to which I have referred were common (or potentially common) to both offenders. In Ms Jeffrey’s case I accept the Crown’s submission that s 21A(2)(d) of the Sentencing Act also operates adversely to her in the imposition of sentence. That section provides that a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences) operates as an aggravating feature. I note that while her record does not register a conviction for an offence in either category it does record an offence of a relevantly aggravating kind given the strikingly similar circumstances in which it was committed.

Ms Jeffrey’s previous record

40 Ms Jeffrey’s prior record does not commence until 2002 when she was charged with a minor offence of dishonesty. She was at that time 40 years of age. I accept that her offending at that time was commensurate with the time she commenced using heroin, and that her addiction thereafter became increasingly entrenched up to and including her arrest in August 2007.

41 In July 2003 she was charged with a series of offences when she broke into the residence of another elderly man, assaulted him and searched through his property with the intention of robbing him. I am satisfied that on that occasion, as with the matter for which she stands to be sentenced before me, she knew the victim as a neighbour, knew that he was alone inside the premises and that he was unlikely to be able to resist her intentions to rob him. In respect of the most objectively serious of the charges for which she faced sentence in the District Court in August 2004 as a consequence of that incident, namely aggravated break, enter and steal pursuant to s 113(2) of the Crimes Act (aggravated by reason of her knowing that the victim was within the dwelling), she was sentenced to imprisonment for 12 months with a non-parole period of 9 months suspended pursuant to s 12 of the Sentencing Act on condition that she be of good behaviour for a period of 12 months. I note that in the same proceedings a charge of assault with intention to rob the same victim was dealt with under s 9 of the Sentencing Act. As those matters were en route to the District Court she was arrested on fresh charges, none of which involved violence. They were dealt with in the Local Court by way of non-custodial penalties of various kinds. Although at the time of the robbery of the deceased she was no longer subject to the bonds imposed in the District Court in August 2004, in May 2006 she was the subject of a fresh bond imposed pursuant to s 9 of the Sentencing Act for drug offences. This operates as an additional and independent feature of aggravation in her case.

42 I approach an assessment of the extent to which Ms Jeffrey’s prior offending impacts adversely on the sentence to be imposed conscious of what the Court of Criminal Appeal held in R v McNaughton [2006] NSWCCA 242; 163 A Crim R 381 as the correct approach to the operation of s 21A(2)(d) in the context of s 21A(4) and the common law. Accordingly, I do not regard her prior record, per se, as aggravating the seriousness of the offending inherent in either offence beyond that which is proportionate to the gravity of that offending viewed objectively. I do however have regard to the fact that she used the same modus operandi in 2003 as she employed in the present case, and that on both occasions she effected a robbery on an elderly victim in his own home where he was unlikely to be able to defend himself. In the present case of course the consequences for the victim were fatal. Irrespective of the fact that I accept that she was driven by her addiction on both occasions, her conduct in the present case does not simply manifest a deliberate and continuing disobedience of the law, it resonates with a lack of regard for those in the community who are most in need of protection. It calls for deterrence and denunciation and warrants a heavier sentence than might otherwise be the case (see Veen v R (1979) 143 CLR 458).

The subjective circumstances of Ms Mealey

43 Ms Cieplucha, a forensic psychologist, interviewed Ms Mealey at Silverwater Women’s Correctional Complex on 15 December 2008 for a period of two hours. What follows is drawn from her report, together with a report from Ms Heyes, a drug and alcohol clinician within Drug Health Services at Royal Prince Alfred Hospital. I also take into account Ms Mealey’s evidence before me.

Family/Social History

44 Ms Mealey was aged 34 when she committed the present offences and was 36 at the time of sentence. She was abandoned by her mother at the age of four months and left in the care of her father and her paternal grandparents. Her mother is Aboriginal and her father is of Irish descent. Her father has remarried twice. His first remarriage was also to an Aboriginal woman. They had two children. Ms Mealey’s stepmother was highly critical of her and frequently excluded her from the family unit. When that marriage broke down, instead of residing with her father and her father’s second wife and their six children, Ms Mealey chose to remain in the care of her paternal grandparents. As a consequence her relationship with her immediate family became increasingly distant. Upon entering custody Ms Mealey reported that her contact with her father and her siblings has become more regular. Ms Mealey stated that during her childhood she suffered no sexual abuse and no serious physical harm at the hands of either her father or her grandparents. I am satisfied that she was however sexually abused from the age of five by an extended family member over a number of years. Neither her father nor her grandparents were aware of the abuse. She did not reveal it until she was 21.

45 Ms Mealey left school in Year 8 and did not participate in any further education until entering custody in August 2007. She has not been employed since the age of 16 when she worked in a local shop. She has been in receipt of Centrelink benefits since the age of 23. She is currently undertaking Literacy, Computer, Art and Koori classes.

46 Ms Mealey reported that after her grandparents passed away when she was in her early twenties she began experiencing difficulties securing stable accommodation. Her grandparents had, in effect, been her primary caregivers until that time. At first she resided with her then boyfriend at his aunt’s house after which they squatted in various vacant premises. It was at this time that she went in search of her biological mother in Redfern. She was bitterly disappointed to find her mother severely addicted to alcohol and unresponsive to her approach and desire for contact.

47 Despite the fact that her relationship with her boyfriend extended over a period of years it offered her little by way of stability or security. It was marked by extreme violence and substance abuse. She variously suffered punches with a closed fist and being hit with an open hand. She also suffered kicks to the head resulting in repeated losses of consciousness, a broken jaw and short-term memory difficulties. Ms Mealey rarely sought medical attention for her injuries, and although she considered applying for an Apprehended Domestic Violence Order on one occasion, she decided against it in order to avoid trouble. Ms Mealey also reported being verbally abused, threatened and belittled by her boyfriend. Although she endeavoured to provide support and refuge for her younger siblings after the death of her grandparents, she progressively separated herself from them for their protection due to her boyfriend’s physically abusive behaviour and substance abuse.

48 She said that her boyfriend coerced her into stealing with him in order to support his drug addiction. This is consistent with the first entry on her criminal record in 1992 when she was aged 20. Thereafter and over successive years she has been convicted of a range of property offences (of which only one involved a break and enter of premises committed in 1999) and summary drug offences of self-administration and possession. She has served two short periods of imprisonment for larceny. Notably, save for a charge of common assault dealt with in the Children’s Court, she has never been charged or convicted of an offence of violence.

49 I am satisfied that at the time of the offending Ms Mealey had a limited social network and was living a largely transient lifestyle consequent first upon the death of her grandparents and then as a direct result of leaving the abusive relationship with her former boyfriend. It would appear that it was in these circumstances that she accepted an offer of shelter from Ms Jeffrey in the days leading up to 23 October 2006.

Psychological assessment

50 Ms Cieplucha assessed Ms Mealey’s personality functioning using the Millon Clinical Multiaxial Inventory 3^rd Edition (MCMI-III), a psychometric instrument aimed at developing a diagnostic profile of an individual in relation to both personality disorders and clinical syndromes. Ms Mealey’s profile is suggestive of someone experiencing feelings of inadequacy and low self-esteem, worthlessness and vulnerability in addition to sadness, pessimism and apathy which reflect her reported feelings of depression. On assessment Ms Cieplucha also reported, and I accept, that Ms Mealey is socially naïve and is likely to be easily influenced by others. I am satisfied that she was subject to the influence of Ms Jeffrey when she agreed to join with her to rob the deceased.

51 Ms Cieplucha also administered the Wechsler Abbreviated Scale of Intelligence in order to provide a general estimate of Ms Mealey’s intellectual capacity. The results of this test highlighted Ms Mealey’s reduced verbal skills with a demonstrated limited word knowledge and poor verbal abstract reasoning which, according to Ms Cieplucha, are often associated with impulsivity, limited insight and poor self-monitoring. Ms Mealey’s overall level of intellectual functioning which was assessed as being extremely low to borderline in terms of verbal skills, and borderline to average in terms of performance intelligence, is also of significance in mitigation of sentence.

Drug and alcohol history

52 Ms Mealey reported to Ms Cieplucha that she started smoking cannabis at the age of 14. She also started smoking heroin on a daily basis at the age of 20 and progressed to intravenous use at the age of 21 by which time she was drug dependent. She also admitted to using cocaine on a daily basis when she was 22 which persisted until she was 27. I accept that she likely used drugs as a means of self-medication in order to cope with issues of abandonment, sexual abuse and homelessness. She has made two attempts at rehabilitation in the past, through Odyssey House in 1995 and the MERIT program in 2003. Both were unsuccessful. I am satisfied this was due in part at least to the fact that her social dislocation rendered her vulnerable to relapse.

53 Although Ms Cieplucha’s report briefly mentions the Koori women’s counselling program administered by the Royal Prince Alfred Hospital, it would appear that she was unaware of Ms Mealey’s progress through that program. Ms Heyes, a clinician and counsellor, reported that in November 2006, upon referral from the Aboriginal Medical Service, Ms Mealey became a regular weekly attendee of the Aboriginal Women’s Support Group. It is significant that her involvement with the group commenced after the robbery and continued up until the time of her arrest. In February 2007 she requested weekly individual counselling sessions which continued until she was arrested. I am satisfied that prior to her arrest Ms Mealey was actively engaged in the treatment offered to her and that her punctuality and commitment evidenced a keen desire to change her behaviour. The goals of her treatment at that time involved:

“i) Stable accommodation.
ii) Maintaining her abstinence from heroin and refraining from abusing or misusing other substances.
iii) Introducing positive social supports.
iv) Long term goals involving further education and employment.”

54 Ms Heyes reports that over the course of her treatment Ms Mealey has managed to make behavioural changes and, in particular, she has improved her interpersonal skills becoming less sensitive and reactionary and more able to control her tendency to be easily led or influenced by others. In so far as her goal of obtaining stable accommodation is concerned I note that she obtained housing with Dolores Single Women’s Refuge from 3 April 2007 until the time of her arrest. Ms Mealey’s case worker at the Refuge, Ms Reynaud, said:

“The staff at the Refuge were very pleased with Raelene to the extent that when one of our exit houses became available we did not hesitate to give Raelene the opportunity to reside in the premises for a period of a year with outreach support from our service.
Whilst residing at our Refuge Raelene followed all of our rules and was a role model client. Raelene was very courteous to staff and was happy to follow a case plan as well as continuing her other support outside of the Refuge.”

55 Ms Heyes reported that while Ms Mealey occasionally used cocaine, cannabis, alcohol and benzodiazepines in the course of her participation in the program at the Royal Prince Alfred Hospital, as revealed by urine analysis as well as clinical observations and reports, she abstained entirely from heroin for nine months prior to her arrest. Further, and to her credit, she was not only committed to her own abstinence from heroin but also tried to encourage other users to do the same. In addition, Ms Heyes reported (and I accept) that Ms Mealey’s lapses into drug use were occasional and in response to adverse social or emotional stimuli as distinct from indicating a resurgence of dependent drug use. Of crucial significance on sentence Ms Mealey was abstinent from all drugs, apart from nicotine, for four months prior to her arrest. I am satisfied that Ms Mealey appreciated well before her arrest the adverse impact of drugs on her behaviour and has a demonstrated insight into the connection between her drug abuse and her past offending. This is amply demonstrated by her determined effort to change her life circumstances after the robbery and Mr Kelly’s death. She has expressed a desire to abstain from drugs and an appreciation of the need to continue drug and alcohol intervention and recovery programs in prison and upon her release. I consider her desire to be genuine.

The subjective circumstances of Ms Jeffrey

56 Mr Watson-Munro, a forensic psychologist, interviewed Ms Jeffrey at the Long Pay Prison Complex on 17 December 2008. What follows is drawn from that report and the evidence of her sister, Ms Christine Jeffrey.

Family/Social History

57 Ms Christine Jeffrey gave evidence that she was the eldest of four children and the older sister of the offender. She described a close family relationship. She said that despite her sister’s criminal behaviour, her mother and father maintain a close connection with her sister. Were it not for the fact that Ms Jeffrey’s father is currently hospitalised having been diagnosed with prostate cancer and that his wife was assisting him I accept that they would have been in attendance during the sentencing proceedings. I note that Mr and Mrs Jeffrey have the care of the two remaining children, both of whom suffer disabilities.

58 Despite the fact that the family moved frequently during the children’s high school years, which in Mr Watson-Munro’s view limited Ms Jeffrey’s ability to maintain meaningful peer group relationships, she achieved well and graduated from high school with high academic and sporting achievements. She had some success as an amateur actor with the Ensemble Theatre before she married. Her sister assessed the marriage as an unhappy one. She said that Ms Jeffrey did not share her predicament with her wider family. She also has a work history in hospitality although from what I was able to glean from the tendered report she has not worked in paid employment for some time.

59 Ms Jeffrey described her former partner as an exceptionally controlling individual who manipulated her through the management of family finances, which in turn impacted upon her self-esteem and contributed to a form of learned helplessness. In the absence of professional intervention Ms Jeffrey reportedly turned to drug abuse as a means of self-medication. The relationship dissolved by a separation in 2000 after which Ms Jeffrey suffered an emotional breakdown accompanied with a suicide attempt. She has three sons who remained in the care of their father when she left the family home although I note that they have each suffered the social and emotional consequences of a fractured family life as a result of the breakdown in the family and their mother’s addiction. Her children are now aged 22, 17 and 14.

60 Christine Jeffrey confirmed that her sister started abusing drugs in the last six months of her marriage and that this rapidly escalated into a chronic heroin addiction. She apparently dissipated the $130,000 she obtained in a divorce settlement on heroin after which she resorted to prostitution to support her drug habit. I have already noted the nexus between her drug addiction and her pattern of criminality which culminated in the offences for which she stands to be sentenced. Christine Jeffrey has been aware of her sister’s psychosocial decline over many years. She said that her sister’s physical health and appearance has suffered to the extent that she was barely recognisable at the time of her arrest. With family support she made various attempts at rehabilitation over the passage of five or six years, all of which were largely unsuccessful. The latest attempt was after the robbery. She apparently relapsed into drug use on that occasion after her boyfriend was released from custody.

61 Christine Jeffrey acknowledged her awareness of the circumstances giving rise to her sister’s conviction and that her sister attempted to avoid responsibility in her various dealings with police. She said that to her own observation her sister was acting strangely in the months prior to her arrest. She described her as “angry, vicious and shifty”.

62 Despite the considerable pain Ms Jeffrey has put her family members through for some years, to their credit they remain unstintingly supportive of her. In one sense this augers well for her rehabilitation. Since her sister’s arrest and remand Christine Jeffrey has observed a physical and psychological shift in her sister’s attitude and outlook. Christine Jeffrey said:

“I know Frances holds life sacred because of the way we were raised and other things that occurred in her life and I think she has a deep horror of what happened to Mr Kelly and her involvement in it to the point that…she finds it very difficult to even discuss it with me or other members of the family…I just feel that the person she is, she would have a lot of difficulty coming to terms with herself and she would suffer”.

63 She has spoken to her sister about her plans upon release and confirmed that her intentions are to remain drug-free although, as both Christine Jeffrey and Mr Watson-Munro note, Ms Jeffrey requires ongoing assistance in order to address the underlying and complex causes of her drug use. As Mr Watson-Munro reports:

“…(Ms Jeffrey) requires consistent treatment whilst in custody and beyond. She has now been drug-free for some significant period of time and reflective of her improved state of health she has gained 20kg in weight. She also appears to be more insightful to her problems… She has not as yet however embarked upon a regular course of psychotherapy which is indicated. This needs to be complemented with specific skills training focussed on relapse prevention. Attendant to this a cessation of contact with potentially adverse influences in her life is essential and in the absence of these considerations being attended to her prognosis in my view is exceptionally bleak.”

64 Ms Jeffrey is also hopeful of resuming a relationship with her three sons and, in particular, that she will be able to resume the care of her youngest son who is thought to be at risk in circumstances where the relationship with his father and his father’s new partner is fractured and unstable.

Mitigating factors

Ms Mealey

65 Mr Ierace relied upon a number of mitigating matters under s 21A of the Sentencing Act which, in addition to what he submitted was the secondary role Ms Mealey assumed at Ms Jeffrey’s direction on the morning of the robbery, and her subjective circumstances, operate to result in a sentence significantly less than the sentence that might be imposed on her co-offender.

66 He first emphasised, as I have already noted, that the Crown prosecutor conceded in written submissions that s 21A(3)(b) was invoked in her favour in that the commission of the offence was impulsive. I am also satisfied that her level of intellectual functioning and her personality profile rendered her vulnerable to Ms Jeffrey’s influence. Mr Ierace also emphasised that despite the fact that Ms Mealey has an antecedent criminal record, it is comprised primarily of property offences with no offences of violence of any kind. I am invited to conclude from that fact, together with the other material placed before me, that there is no basis upon which I could form the view that she has any propensity to violence. I accept that submission. I also accept that Ms Mealey is genuinely remorseful and has expressed that remorse both to the reporting psychologist and, in a compelling way, in her evidence before me. I accept that not only is she deeply regretful that she was responsible for the death of an elderly man but that since her grandparents were the only adults to whom she could refer for mentorship or guidance in her childhood, she strongly identifies with the injury and pain that Mr Kelly suffered as an elderly person at the time of the robbery and in the days before he died. Her determined efforts prior to her to arrest both to address her addiction and to gain a foothold in the wider community against considerable personal adversity are impressive. They encourage me to the view that the recidivism that has marked her as an adult offender over many years will be unlikely to be repeated on her release and that she has positive prospects of rehabilitation.

Ms Jeffrey

67 Ms Jeffrey’s attempts to construct a false alibi and her concerted efforts over a period of months to avoid responsibility for her conduct do not operate to aggravate her offending. They do not however reflect favourably on her when I am invited to consider what is said to be evidence of her remorse and contrition in mitigation of her sentence. Mr Young submitted that whilst her conduct from 23 October 2006 to her arrest does not stand to her credit, her addiction throughout that period of time should be viewed as overwhelming a genuine and empathetic concern for the deceased that has surfaced since her arrest. Given her sister’s somewhat guarded evidence as set out in paragraph 62 above the only other source of evidence that Ms Jeffrey has accepted responsibility for her actions (such as to permit me to have regard to remorse as a mitigating factor as provided for in the amended terms of s 21A(3)(i)-(ii) of the Sentencing Act) is found in that part of Mr Watson-Munro’s report where he says Ms Jeffrey expressed remorse for her actions which appeared genuine. Although I do not disregard his opinion I do not regard it as compelling a finding in her favour in the absence of having heard from her in evidence or there being other evidence of her contrition. I do however give it some weight.

68 I also regard Ms Jeffrey’s prospects of rehabilitation as guarded. That is not to say that I discount entirely her desire to rebuild her life, even to the extent of resuming tertiary studies. I am simply mindful of the evidence of her sister and Mr Watson-Munro and the fact that her attempts at addressing her addiction in the period after the robbery and leading up to arrest were short-lived when she resumed drug use on her boyfriend’s release from prison. I cannot overlook the fact that there are multiple entries in her custodial report indicating that she has not been drug-free whilst in custody although it would appear that the most recent adverse notation was in November 2008.

Sentence

69 I am satisfied that nothing other than terms of imprisonment will suffice in this case to meet the objectives of sentencing as provided for in s 3A of the Sentencing Act. Neither Mr Ierace nor Mr Young sought to persuade me to a contrary view. However, as I have sought to make clear, the sentences to be imposed on each offender differ both because of the view I have taken as to their level of culpability, the different features of aggravation and mitigation, and because of material differences in their subjective circumstances.

70 In so far as the question of special circumstances is concerned I am satisfied that the statutory ratio under s 44 of the Sentencing Act should be varied in the sentences to be imposed on both offenders, and in different ways, so as to give appropriate account to the need for them both to receive ongoing treatment and assistance in dealing with issues of addiction on their eventual release (albeit in different ways given Ms Mealey’s successful steps already to remain drug-free) and because it is in the community’s interest that they both participate actively in programs designed to achieve that objective. An extended period on parole will also ensure that they are supported in community-based services under the supervision and guidance of the Probation and Parole Service with a view to securing work and accommodation on their release and to promote their adaptation to community and family life. In Ms Mealey’s case I also recommend that Justice Health and the Probation and Parole Service be provided with a copy of Ms Cieplucha’s report with a view to ensuring that she is given access to educational and vocational programs appropriate to her level of intellectual functioning.

Orders

71 Frances Megan Jeffrey on the charge of manslaughter you are sentenced to a non-parole period of 3 years and 6 months commencing on 7 August 2007 and expiring on 6 February 2011 with a balance of term of 2 years and 6 months expiring on 6 August 2013.

On the charge of robbery in company you are sentenced to a fixed term of 2 years and 6 months also commencing on 7 August 2007.

72 Raelene Erica Mealey on the charge of manslaughter you are sentenced to a non-parole period of 22 months commencing on 7 August 2007 and expiring on 6 June 2009 with a balance of term of 2 years and 2 months expiring on 6 August 2011.

On the charge of robbery in company you are sentenced to a fixed term of 18 months also commencing on 7 August 2007.

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