Lowe v R [2015] NSWCCA 46

Lowe v R [2015] NSWCCA 46

The Court had jurisdiction because the applicant's earlier matter resulted in refusal of leave to appeal, not dismissal of an appeal, and New South Wales authority supported treating those orders differently, particularly where a later co-offender sentence creates a fresh parity issue. The later reduction of Sinkovich's sentence produced a considerable disparity with the applicant's sentence for the equivalent offence and gave the applicant a justifiable sense of grievance. A lesser sentence was therefore warranted for CAN Sequence 5, without adjusting the other sentences.

Jurisdiction
Australia
Judgment Date
27 March 2015
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal After a Prior Application for Leave Had Been Refused
Outcome
Leave to appeal granted; appeal allowed in respect of CAN Sequence 5; sentence for CAN Sequence 5 quashed and replaced with a lesser sentence.
Legal Topics
['supply of Prohibited Drugs' 'parity Between Co Offenders' 'second Application for Leave to Appeal' 'jurisdiction of Court of Criminal Appeal' 'standard Non Parole Period' 'totality']
['criminal Law' 'sentencing' 'criminal Appeals'] ['supply of Prohibited Drugs' 'parity Between Co Offenders' 'second Application for Leave to Appeal' 'jurisdiction of Court of Criminal Appeal' 'standard Non Parole Period' 'totality']

Case Brief

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal After a Prior Application for Leave Had Been Refused

Legal Issues

  1. 1 ['Whether the Court of Criminal Appeal had jurisdiction to entertain a second application for leave to appeal against sentence where the earlier order was that leave to appeal be refused rather than that the appeal be dismissed.' 'Whether the sentence imposed on the applicant for CAN Sequence 5, compared with the reduced sentence later imposed on co-offender Sinkovich, gave rise to a justifiable sense of grievance on parity grounds.' 'Whether a lesser sentence was warranted for CAN Sequence 5 having regard to totality and the other sentences imposed on the applicant.']

Ratio Decidendi

The Court had jurisdiction because the applicant's earlier matter resulted in refusal of leave to appeal, not dismissal of an appeal, and New South Wales authority supported treating those orders differently, particularly where a later co-offender sentence creates a fresh parity issue. The later reduction of Sinkovich's sentence produced a considerable disparity with the applicant's sentence for the equivalent offence and gave the applicant a justifiable sense of grievance. A lesser sentence was therefore warranted for CAN Sequence 5, without adjusting the other sentences.

Court Disposition

Leave to appeal granted; appeal allowed in respect of CAN Sequence 5; sentence for CAN Sequence 5 quashed and replaced with a lesser sentence.

Orders

  • ['Leave to appeal granted.' 'Allow the appeal in respect of CAN Sequence 5.' 'Quash the sentence in respect of CAN Sequence 5.' 'In lieu, sentence the appellant 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.']