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Court of Criminal Appeal 27 March 2015

Lowe v R

[2015] NSWCCA 46

Also reported as (2015) 249 A Crim R 362
DrugsFirearms & weapons
CRIMINAL LAW SENTENCING SUPPLY OF PROHIBITED DRUGS OFFENDERS PARITY SUCCESSFUL APPEAL BY CO

Citation: Lowe v R [2015] NSWCCA 46
Court: Court of Criminal Appeal, New South Wales
Date: 27 March 2015
Judges: Ward JA, Simpson J, Davies J

Background

The applicant pleaded guilty to a range of serious drug supply offences, firearms offences, and related charges. He was sentenced in 2009 to a total effective non-parole period of ten years. A co-offender, Sinkovich, had been sentenced by the same judge for comparable drug offending.

In 2013, the applicant made his first application for leave to appeal against sentence. That application was refused. Subsequently, Sinkovich successfully appealed his own sentence, with the Court of Criminal Appeal reducing it on the basis that error had infected the sentencing process.

Following Sinkovich's successful appeal, the applicant brought a fresh application for leave to appeal, this time on the ground of sentencing parity. The Crown contended the Court had no jurisdiction to hear the application, given that the first application for leave had already been refused.

  • Whether the Court of Criminal Appeal has jurisdiction to entertain a second application for leave to appeal against sentence where an earlier application for leave had been refused.
  • Whether a refusal of leave to appeal is equivalent to a dismissal of an appeal, thereby creating a jurisdictional bar to further proceedings.
  • Whether, if jurisdiction existed, the parity ground warranted a reduction in the applicant's sentence following the co-offender's successful appeal.

Decision

The central jurisdictional question turned on the proper construction of the Criminal Appeal Act 1912 (NSW). The Court, with Davies J delivering the principal judgment and Simpson J adding separate observations, held that the Court did have jurisdiction to hear the second application.

Simpson J explained the critical statutory distinction: section 5 of the Act draws a clear line between appeals as of right (on questions of law alone) and appeals that require leave (including sentence appeals). Section 6, which governs the orders available following a successful appeal, only comes into play once leave is granted. A refusal of leave is not a "dismissal" of an appeal; the appeal never proceeds to a full hearing on the merits unless leave is granted. Accordingly, a refusal of leave does not create a jurisdictional bar to a subsequent application.

The Court acknowledged the argument drawn from Dixon J's remarks in Grierson v The King (1938) 60 CLR 431, which had been read by some courts as suggesting a jurisdictional bar following refusal of a prior application. The Court distinguished that case on its facts (it concerned a second appeal after dismissal, not a second application for leave) and characterised the relevant passage as obiter. The Court found support in the High Court's decision in Postiglione v The Queen (1997) 189 CLR 295 and this Court's own decision in R v Stead [1999] NSWCCA 41. Importantly, however, the Court confirmed that where a prior application has been determined on the merits, that history provides a powerful basis for exercising the discretion against granting leave on a fresh application.

On the substantive parity question, Davies J found that the reduction in Sinkovich's sentence produced a marked disparity with the applicant's sentence for the corresponding offence (CAN Sequence 5), giving rise to a justifiable sense of grievance. The Crown's argument that the applicant's greater overall criminality justified the heavier sentences did not adequately answer the parity concern. Davies J accordingly reduced the non-parole period for that count from eight years to seven years, with a corresponding adjustment to the additional term, resulting in a total effective non-parole period of nine years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in respect of CAN Sequence 5.
  • Sentence for CAN Sequence 5 quashed.
  • In lieu, the applicant sentenced to a non-parole period of 7 years commencing 4 July 2010 and expiring 3 July 2017, with an additional term of 3 years and 6 months expiring 3 January 2021.

Key Takeaways

  • A refusal of leave to appeal under the Criminal Appeal Act 1912 (NSW) is not equivalent to a dismissal of an appeal and does not create a jurisdictional bar to a subsequent application for leave to appeal.
  • Under section 5 of the Act, the appeal process in cases requiring leave only commences once leave is granted; section 6 (which governs orders on appeal) is not engaged by a bare refusal of leave.
  • Where a prior application for leave has been determined on the merits, that circumstance may operate as a powerful discretionary, but not jurisdictional, bar to a fresh application.
  • Dixon J's remarks in Grierson v The King (1938) 60 CLR 431, sometimes read as establishing a jurisdictional bar to second applications, were characterised by the Court of Criminal Appeal as obiter and confined to the context of a second appeal following dismissal of a first appeal on the merits.
  • Parity in sentencing remains a live ground of appeal: a co-offender's successful sentence reduction can generate a justifiable sense of grievance that warrants revisiting the applicant's sentence, even where other aspects of the sentence are not independently infected by error.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Crimes (Appeal and Review) Act 2001 (NSW)

Cases:
- Lowe v R [2013] NSWCCA 141
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Grierson v The King (1938) 60 CLR 431
- R v Giri (No 2) [2001] NSWCCA 234
- R v GAM (No 2) [2004] VSCA 117; (2004) 9 VR 640
- Milat v The Queen [2004] HCA 17; (2004) 78 ALJR 672
- Clay v R [2007] NSWCCA 106
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342
- Eastman v R [2008] FCAFC 62; (2008) 166 FCR 579
- Collins v The Queen (1975) 133 CLR 120
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
- North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
- Napier v State of Western Australia [2008] WASCA 106; (2008) 36 WAR 543
- R v Alameddine [2004] NSWCCA 286
- R v Burrell [2007] NSWCCA 79
- Matta v R (1995) 126 FLR 127
- R v Edwards (No 2) [1931] SASR 376
- R v A [2003] QCA 445