AT SYDNEY ON THURSDAY, 11 FEBRUARY 1993, AT 12.07 PM
Copyright in the High Court of Australia
MR_Pd, HIDDEN~C:
May it please the Court, I appear with
my learned
friend, MS M.G. STUBBS, for the
applicant.
(instructed by Craddock, Murray &
Neumann)
MR R.O. BLANCH, QC: If it please the Court, I appear with
my learned friend, MR T.R. HOYLE, for the Crown.
(instructed by S.E. O'Connor, Solicitor for Public
Prosecutions (New South Wales))
BRENNAN J:
Mr Hidden, we propose to call on Mr Blanch first
in this matter.
MR HIDDEN:
May it please the Court.
MR BLANCH:
Your Honour, I will have to concede that there
was an error in the Court of Criminal Appeal. Unfortunately the court did not realize that Mr Lowe was the first person sentenced. The only thing I can put to the Court is that the Court of
Criminal Appeal did go through the facts, did
compare the other two accused and did not appear to
feel that there was any disparity, so that on that
analysis of the facts it may be that if the matter
were to go back to the Court of Criminal Appeal,
they would come to the same conclusion.
DEANE J: That may be, but even conceding it - I mean, there
are two alternatives.
One is:
we sit down and do
the job without the material and, I think most
people would say, the qualifications.
The other
is:
it goes back so the matter can be dealt with
in the context of Lowe.
MR BLANCH:
I really would have to accede to that,
Your Honour.
The other matter for the information
of the Court is this, that it is not an academic
matter.
She has been on bail during the periods of
the appeal and her sentence is not due to expire
until 17 April next year.
So that there would be
both - there is plenty of time for the Court to
reassess the matter on an appropriate basis.
DEANE J:
If it were to go back, the applicant would remain
on bail, would she?
MR BLANCH:
Yes, I think that is probably so, Your Honour.
DEANE J:
You would not oppose an application for bail if
made?
MR BLANCH:
No, Your Honour.
BRENNAN J:
You do not wish to say anything, I imagine,
Mr Hidden.
Jones.B
2
11/2/93
MR HIDDEN:
No, thank you, Your Honours.
BRENNAN J:
Mr Blanch, the Court is minded to grant special
leave to appeal and to entertain the appeal
instanter. If it were, in the light of what you
have said, the likely order is that the matter
would be remitted to the Court of Criminal Appeal.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jones v The Queen [1993] HCATrans 20
Case
[1993] HCATrans 20
Decision Date
CaseChat Overview and Summary
This matter concerns an application for special leave to appeal to the High Court of Australia by Ms Jones. The dispute arose from the sentence imposed on Ms Jones following her guilty plea to supplying a significant quantity of cannabis. Ms Jones was sentenced to 30 months periodic detention, which was to expire on 1 May 1993 but had been extended due to her being on bail. This sentence was contrasted with the lesser penalties imposed on her co-offenders, Mr John Norms Caling, who received community service, and Ms Megan Ruth Lillis, who was fined and also ordered to perform community service. Ms Jones appealed her sentence to the Court of Criminal Appeal on the ground of disparity.
The central legal issue before the High Court was whether the Court of Criminal Appeal had erred in its consideration of the disparity between Ms Jones' sentence and those of her co-offenders. Specifically, the Court of Criminal Appeal had stated that the question of parity in sentencing typically arises when a first offender is sentenced, and a co-offender is subsequently sentenced for the same offence, with the first sentence acting as a benchmark. The applicant contended that this approach did not adequately address the disparity in her case.
The High Court, in light of concessions made by the Crown regarding an error by the Court of Criminal Appeal in not recognising Mr Lowe as the first person sentenced, indicated its inclination to grant special leave to appeal and hear the appeal instanter. The Court noted that the likely outcome, given the Crown's submissions, would be to remit the matter back to the Court of Criminal Appeal for reconsideration. The Crown did not oppose this course of action, acknowledging the potential for the Court of Criminal Appeal to reach the same conclusion after reassessing the facts. The applicant's sentence was not due to expire for some time, allowing for such reassessment.
The High Court granted special leave to appeal and entertained the appeal instanter. The Court ordered that the appeal be allowed, the order of the Court of Criminal Appeal be set aside, and the matter be remitted to the Court of Criminal Appeal for rehearing.