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Court of Criminal Appeal 3 June 2015

Eldridge v R; Mackay v R

[2015] NSWCCA 127

Drugs
CRIMINAL LAW SENTENCE APPEALS WHETHER SENTENCE MANIFESTLY EXCESSIVE HELD SENTENCE NOT MANIFESTLY EXCESSIVE EACH APPLICANT ADVANCED PARITY GROUND OFFENDERS

Citation: Eldridge v R; Mackay v R [2015] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 3 June 2015
Judges: Hoeben CJ at CL, Johnson J (principal judgment), Hamill J (agreeing)

Background

Two applicants, a mother and her daughter, sought leave to appeal sentences imposed in the Bathurst District Court in October 2013 for serious heroin supply offences. Both had pleaded guilty to knowingly taking part in the supply of a commercial quantity of a prohibited drug under the Drug Misuse and Trafficking Act 1985, offences carrying a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years.

The offences arose from a police strike force investigation into an apparent increase in heroin supply in the Bathurst area. Between July and November 2011, members of the applicants' extended family organised and carried out at least 18 separate heroin purchases from two upper-level suppliers, totalling 770 grams of heroin in the daughter's case and approximately 742 grams in the mother's. Family members would drive from Bathurst to Canley Vale in Sydney to collect the drugs.

Five members of the same family were sentenced together on 1 October 2013. One of the upper-level suppliers, an elderly man aged 79 at the time of his sentencing, was sentenced separately in February 2014 by a different judge. The disparity between the applicants' sentences and that imposed on this supplier became the central issue on appeal.

  • Whether the sentencing judge failed to take into account the daughter's remorse and prospects of rehabilitation
  • Whether the sentences imposed on the applicants were manifestly excessive
  • Whether each applicant had a legitimate (or justifiable) sense of grievance under the parity principle when comparing her sentence to those of co-offenders, in particular the elderly upper-level supplier

Decision

The Court of Criminal Appeal rejected the daughter's grounds relating to remorse and rehabilitation, finding that it had not been demonstrated the sentencing judge actually failed to consider these matters. The court acknowledged that ex tempore remarks delivered across multiple offenders at a single hearing may not address each individual at length, but that alone did not establish that relevant factors were overlooked. The court also rejected the submission that the sentences were manifestly excessive.

The parity ground, however, succeeded for both applicants. The parity principle holds that offenders sentenced for the same or related offending should not receive sentences so different from one another that a justifiable sense of grievance arises. The Court found that the elderly supplier, who was an upper-level participant in the drug network and had supplied the family over many transactions, received a markedly lighter sentence than the applicants despite his greater objective culpability. That disparity was not adequately explained by the differences in their personal circumstances.

The Court found that the applicants' sentences had to be reduced to remove the unjustifiable disparity. Johnson J noted that the sentences for the two applicants should not be identical, because the objective gravity of their respective roles differed somewhat and because additional evidence bearing on the daughter's circumstances was before the Court of Criminal Appeal.

Orders Made

Kelly Eldridge:
- Leave to appeal granted; appeal allowed
- Sentence imposed at Bathurst District Court quashed
- Resentenced (taking into account the Form 1 offence) to a non-parole period of four years commencing 10 November 2011 and expiring 9 November 2015, with a balance of term of two years and nine months expiring 9 August 2018
- Earliest parole eligibility date: 10 November 2015

Suzanne Mackay:
- Leave to appeal granted; appeal allowed
- Sentence on Count 2 confirmed
- Sentence on Count 1 quashed
- Resentenced on Count 1 to a non-parole period of four years and six months commencing 8 November 2011 and expiring 7 May 2016, with a balance of term of two years and seven months expiring 7 December 2018
- Earliest parole eligibility date: 8 May 2016

Key Takeaways

  • The parity principle requires that sentences imposed on co-offenders not differ so markedly as to create a justifiable sense of grievance, even where the co-offenders were sentenced by different judges at different times.
  • An upper-level supplier's greater objective culpability is a relevant consideration in the parity analysis: where a lesser participant receives a heavier sentence than an upper-level one, a justifiable grievance may arise.
  • No error was established in the sentencing judge's treatment of remorse and rehabilitation merely because ex tempore remarks delivered across multiple offenders did not address each factor expressly for each individual.
  • In dismissing the manifestly excessive grounds but allowing the parity grounds, the Court of Criminal Appeal confirmed that these are distinct bases for appeal and may produce different outcomes on the same set of facts.
  • Where the Court of Criminal Appeal resentences following a successful parity appeal, it will calibrate sentences among co-applicants by reference to their relative objective culpability rather than imposing identical terms.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases:
- Currie v R [2013] NSWCCA 267
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
- Rae v R [2011] NSWCCA 211