Biggers v The Queen

[2005] HCATrans 510

[2005] HCATrans 510

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P39 of 2004

B e t w e e n -

DENNIS THOMAS BIGGERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 8.49 AM

Copyright in the High Court of Australia

McHUGH J:   The applicant was convicted on his own plea of one count of stealing a motor vehicle (count 1) and three counts of armed robbery (counts 2, 3 and 4), two of which were in company.  He was sentenced to two years imprisonment on count 1 and eight years imprisonment on counts 2, 3 and 4.  Counts 1, 2 and 3 were to be served concurrently, while count 4 was to be served cumulatively upon those, so that the total sentence was for 16 years.  The sentencing judge declined to make a parole eligibility order.

The Court of Criminal Appeal of the Supreme Court of Western Australia allowed the applicant’s appeal from his sentence, and held that parole eligibility should be ordered and that the applicant receive a sentence of four years and eight months with respect to counts 2, 3 and 4.  The result was that the applicant’s aggregate sentence is nine years and four months, and the applicant’s minimum sentence on parole is seven years and four months.  In a separate appeal, the Court of Criminal Appeal allowed an appeal by the applicant’s co‑accused from his sentence and reduced the co‑accused’s sentence to an aggregate sentence of six years imprisonment, with a minimum term of four years.

The applicant’s special leave application complained that the Court of Criminal Appeal erred in law by imposing a sentence on the applicant that exceeded the sentence that his co-accused received.  However, it is well-established that an appellate court will only intervene to address a disparity between the sentences of co‑offenders when “the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done”:  see Lowe v The Queen (1984) 154 CLR 606 at 610. The disparity in this case does not give rise to a justifiable sense of grievance. The special leave application also complained that the Court of Criminal Appeal denied the applicant adequate time for oral argument on appeal and that the applicant had insufficient time to respond to the respondent’s outline of submissions. Neither of these complaints are grounds on which to disturb the judgment of the Court of Criminal Appeal. None of the grounds of appeal raise an issue of public importance.

An appeal has no prospects of success and does not raise a question of law of public importance.

The application is dismissed.

Under the power conferred by r 41.11.1 we direct the Registrar to draw up, sign and seal an order that the application is dismissed.  I publish our joint reasons.

AT 8.49 AM THE MATTER WAS CONCLUDED