AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 27 June 2013

Lowe v R

[2013] NSWCCA 141

DrugsFirearms & weapons
CRIMINAL LAW DRUG SUPPLY OFFENCES SENTENCE APPEAL BY OFFENDER CONTINGENT CROWN APPEAL PARITY WITH CO

Citation: Lowe v R [2013] NSWCCA 141
Court: NSW Court of Criminal Appeal
Date: 27 June 2013
Judge(s): Price J, Davies J, Barr AJ

Background

The applicant pleaded guilty in 2009 to a range of serious offences, including three counts of supplying methylamphetamine (two at commercial quantity level and one of ongoing supply), cultivating a prohibited plant for a commercial purpose, and multiple firearms offences. The offending arose from an undercover police operation in the Minto and Claymore area in mid-2008, during which the applicant supplied methylamphetamine to an undercover operative on multiple occasions, culminating in the supply of approximately 443.8 grams on 4 July 2008.

Judge Conlon sentenced the applicant in October 2009 to a total effective non-parole period of ten years, commencing 4 July 2008 and expiring 3 July 2018, with an additional term of four years expiring 3 July 2022. The applicant sought leave to appeal against that sentence, but did not file the appeal until December 2012, more than three years after sentencing.

The applicant's co-offender, Frank Sinkovich, had his own appeal determined by the Court of Criminal Appeal in April 2011. The applicant's appeal appeared to have been prompted by contact from Legal Aid in connection with a potential sentencing error arising from the High Court's decision in Muldrock v The Queen, though reliance on Muldrock was ultimately abandoned at the hearing.

  • Whether the applicant had a justifiable sense of grievance arising from disparity between his sentence and that of co-offender Sinkovich
  • Whether the individual sentences for the three drug supply offences were manifestly excessive
  • Whether, in circumstances where a parity error was identified, an extension of time to appeal should nonetheless be refused
  • Whether the Crown's contingent appeal (filed only if the applicant's grounds succeeded) should be allowed

Decision

The Court found that a parity error had been established in relation to CAN Sequence 5, the charge of supplying not less than the commercial quantity of methylamphetamine. The applicant could demonstrate a justifiable sense of grievance when compared with the sentence imposed on co-offender Sinkovich.

However, the Court concluded that even if it were to re-sentence the applicant, it would restructure the concurrency and accumulation of sentences in a way that produced the same overall sentence and the same non-parole period originally imposed. The parity error, while technically established, was therefore without practical consequence for the applicant's position.

On the extension of time, the Court refused to grant leave. The delay spanned more than three years, and the explanation offered for the extended gap between November 2009 and June 2012 was found to be entirely unsatisfactory. The Court weighed several factors against granting the extension: the appeal had largely been triggered by a Muldrock argument that was ultimately abandoned; the co-offender's appeal had been decided nearly two years earlier; and, most significantly, the appeal would produce no change to the overall sentence even if it succeeded. The public interest in avoiding delay in bringing appeals also weighed against the applicant.

Because the applicant's grounds ultimately failed, it was unnecessary to consider the Crown's contingent appeal, which had been advanced only on the basis that the Court might reduce the applicant's overall sentence.

Orders Made

  • Leave to appeal refused
  • Crown appeal dismissed

Key Takeaways

  • Establishing a parity error does not automatically warrant a lesser sentence: where re-sentencing would produce the same overall result through adjusted concurrency and accumulation, the error carries no practical merit.
  • A three-year delay in filing a sentence appeal will ordinarily be very difficult to overcome. Unsatisfactory explanation for most of the delay period, combined with an appeal of no practical utility, strongly supports refusal of an extension of time.
  • The Court of Criminal Appeal confirmed that the public interest in avoiding unnecessary delay in bringing appeals is a legitimate and weighty consideration in extension of time applications.
  • Where an appeal is apparently triggered by a legal argument (here, a Muldrock point) that is subsequently abandoned, that circumstance informs the absence of genuine merit and supports refusal of an extension.
  • A Crown appeal brought contingently, to resist any reduction in overall sentence, falls away entirely if the offender's grounds are refused or produce no alteration to the sentence.

Legislation and Cases Referenced

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

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Edwards v R [2009] NSWCCA 199
- Flack v R [2011] NSWCCA 167
- Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138
- McCall v R [2010] NSWCCA 174
- Aldous v R [2012] NSWCCA 153
- Lorraway v R [2010] NSWCCA 46
- Arnaout v R [2008] NSWCCA 278; (2008) 191 A Crim R 149
- R v Lawrence [1980] 1 NSWLR 122
- R v AEM Snr [2002] NSWCCA 58