Jones v The Queen

[1993] HCATrans 20

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S63 of 1992

B e t w e e n -

BRONWYN GWYN JONES

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

Jones.B 1 11/2/93

TRANSCRIPT OF PROCEEDINGS

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.

Have you anything further you wish to say about

that?

MR BLANCH:  No, Your Honour, I have no objection to that

course.

BRENNAN J:  On 25 October 1990, the applicant Ms Jones

pleaded guilty to supplying 2.04 kilograms of

cannabis leaf contrary to section 25(1) of the Drug

Misuse and Trafficking Act (N.S.W). She was

sentenced by Judge Gibson to a term of 30 months to

be served by way of periodic detention. The period

of detention is to expire on 1 May 1993 but, as we

have been informed, she has been on bail and that

period has been extended now until April 1994.

On 15 February 1991, Judge Phelan sentenced

John Norms Caling, who had supplied the applicant and her associate, Ms Megan Ruth Lillis, with the

cannabis.	He was sentenced to 500 hours of
community service.	On 3 June 1991 Judge Madgwick

sentenced Ms Lillis to a fine of $11,000 and

500 hours of community service. He referred to the

disparity between the sentences imposed on Ms Jones

and on Mr Caling.

Ms Jones appealed against her sentence on the

ground of disparity between the sentence imposed on

her and the sentence imposed on Ms Lillis.

Mr Justice Mcinerney, speaking for the Court of

Criminal Appeal, said:

The question of parity, in my view,

arises in circumstances where an offender is

first sentenced by a Judge and subsequently a

co-offender comes before the Court for

sentence for the same offence. The first

sentence then sets a yardstick which the Judge
sentencing the second offender ought to have

regard to in determining an appropriate
sentence so that there will be parity of
sentencing between the two offenders and so as

not to engender in the latter offender a

justifiable sense of grievance.

Citing what Chief Justice Street had said in Reg v
Tisalandis [1982] 2 N.S.W.L.R. 430 at page 434,

Mr Justice Mcinerney said that the question of parity arose only when a co-offender was to be

Jones.B 3 11/2/93

sentenced after sentence had been passed earlier on

another co-offender. Mr Justice Sully added:

It cannot be the case, in my view, that a

sentence otherwise unappellable becomes

somehow transformed into a sentence

contingently appellable merely by reason of

the fact that it is imposed at a time when
there are outstanding sentence proceedings

against some co-offender or co-offenders. A

sentence when imposed is then either

appellable or it is not. If such a sentence

is not then appellable, thereafter it must be

left, in my view, to stand and to take effect

according to its tenor. The contrary approach

so far from advancing the cause of justice

would, in my opinion, introduce, to speak

bluntly, chaos into the administration of the

sentencing law.

It can therefore be seen that the basis of the

Court of Criminal Appeal's decision was their

Honours' view that the parity principle had no

relevance to the first sentence passed on one of a
number of co-offenders. That being the effect of

the decision of the Court of Criminal Appeal, the

respondent concedes that it is not in accordance

with the view of the majority of this Court in

Lowe v The Queen (1984) 154 C.L.R. 606: see the

judgments of Gibbs CJ at page 610; Mason Jat pages

610 to 614; Wilson J at page 616 and Dawson J at

pages 623 and 624, and compare the judgment of

Brennan J at pages 617 to 618.

It is erroneous to regard the principle of

comparability of sentences laid down in Lowe as

incapable of application in favour of the first of

two or more co-offenders to be sentenced. Because

the Court of Criminal Appeal erroneously adopted

the view that the question of parity had no

relevance to this case, it did not consider the

question whether, having regard to the culpability
and antecedents of the respective offenders, the
sentence imposed on Ms Jones should be of the same
order of severity as the sentences imposed on her

co-offenders.

It is necessary to grant special leave to

appeal in order to correct the error of principle

and, in due course, to allow the appeal. The order

then to be made is as follows: special leave is
granted, the appeal is allowed, and the matter is
remitted to the Court of Criminal Appeal to further

consider this matter in accordance with the

judgment of this Court.

AT 12.15 PM THE MATTER WAS ADJOURNED SINE DIE

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