Eldridge v R; Mackay v R

1. [1]

   HOEBEN CJ at CL: I agree with Johnson J.

2. [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

1. [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.

2. [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.

3. [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.

4. [6]

   Suzanne Mackay was sentenced for two separate offences:

5. [7]

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

Grounds of Appeal

1. [8]

   Kelly Eldridge relies upon the following grounds of appeal:

2. [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

1. [10]

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

2. [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).

3. [12]

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

4. [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.

5. [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).

6. [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).

7. [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.

8. [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).

9. [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.

10. [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.

11. [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.

12. [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.

13. [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.

14. [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.

15. [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.

16. [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.

17. [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.

18. [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.

19. [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.

20. [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.

21. [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.

22. [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.

23. [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.

24. [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.

25. [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.

26. [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.

27. [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.

28. [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.

29. [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.

30. [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.

31. [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.

32. [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.

33. [42]

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

34. [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.

35. [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.

36. [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.

37. [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.

38. [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.

39. [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.

40. [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.

41. [50]

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

42. [51]

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

43. [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.

44. [53]

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

45. [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.

46. [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.

47. [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.

48. [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).

49. [58]

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

50. [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.

51. [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.

52. [61]

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

Subjective Circumstances of Kelly Eldridge

1. [62]

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

2. [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.

3. [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

1. [65]

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

2. [66]

   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.

3. [67]

   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

1. [68]

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

2. [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.

3. [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.

4. [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):

5. [72]

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

6. [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.

7. [74]

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

8. [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.

9. [76]

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

10. [77]

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

11. [78]

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

12. [79]

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

13. [80]

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

14. [81]

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

15. [82]

    His Honour concluded (ROS7/AB17):

16. [83]

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

17. [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

1. [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.

2. [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.

3. [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).

4. [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.

5. [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.

6. [90]

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

7. [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]:

8. [92]

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

9. [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.

10. [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.

11. [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.

12. [96]

    This ground of appeal should be rejected.

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

1. [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).

2. [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.

3. [99]

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

4. [100]

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

5. [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).

6. [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).

7. [103]

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

8. [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.

9. [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.

10. [106]

    This ground of appeal should be rejected.

Kelly Eldridge Ground 4 - The Sentence Was Manifestly Excessive

1. [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.

2. [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].

3. [109]

   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.

4. [110]

   I would reject this ground of appeal.

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

1. [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.

2. [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).

3. [113]

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

4. [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.

5. [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):

6. [116]

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

7. [117]

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

8. [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.

9. [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).

10. [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.

11. [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.

12. [122]

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

13. [123]

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

14. [124]

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

15. [125]

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

16. [126]

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

17. [127]

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

18. [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.

19. [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.

20. [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.

21. [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.

22. [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.

23. [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.

24. [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.

25. [135]

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

26. [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.

27. [137]

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

28. [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.

29. [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.

30. [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.

31. [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.

32. [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.

33. [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.

34. [144]

    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.

35. [145]

    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.

36. [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.

37. [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].

38. [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.

39. [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.

40. [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.

41. [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.

42. [152]

    The present appeals arise from a series of sentencing decisions:

43. [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:

44. [154]

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

45. [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):

46. [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:

47. [157]

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

48. [158]

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

49. [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.

50. [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.

51. [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.

52. [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.

53. [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.

54. [164]

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

55. [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.

56. [166]

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

57. [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.

58. [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.

59. [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.

60. [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.

61. [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.

62. [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.

63. [173]

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

Resentencing the Applicants

1. [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].

2. [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).

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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.

10. [183]

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

11. [184]

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

12. [185]

    HAMILL J: I agree with Johnson J.