(1) Leave to appeal granted; (2) Allow the appeal in respect of CAN Sequence 5; (3) Quash the sentence in respect of CAN Sequence 5; (4) 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.
Catchwords:
CRIMINAL LAW – sentencing – supply of prohibited drugs – co-offenders – parity – prior application for leave to appeal against sentence refused – successful appeal by co-offender – fresh application by applicant to appeal against sentence on parity ground – whether Court of Criminal Appeal has jurisdiction – order on first appeal was that leave to appeal be refused – order distinguished from order that appeal be dismissed –– proper construction of Criminal Appeal Act 1912 (NSW) - court has jurisdiction to hear second application for leave
[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
Lowe v R [2015] NSWCCA 46
Case
[2015] NSWCCA 46
Decision Date
CaseChat Overview and Summary
In Lowe v R, the appellant, the respondent, and two co-offenders were convicted of drug supply offences. The appellant was sentenced to seven years imprisonment, while the others received sentences of five years. The appellant and his co-offenders unsuccessfully sought leave to appeal against their sentences. One of the co-offenders subsequently successfully appealed against his sentence and had it reduced to four years. The appellant then applied for leave to appeal against his sentence on the ground of parity with his co-offender who had had his sentence reduced. The court had to decide whether it had the jurisdiction to hear the application for leave to appeal, given that a prior application had been refused.
The court noted that the prior order of the court refusing leave to appeal was distinguished from an order dismissing the appeal itself. The court distinguished the prior order from an order that the appeal be dismissed because the former did not prevent the appellant from making another application. The court held that the proper construction of the relevant provisions of the Criminal Appeal Act 1912 (NSW) meant that the court had jurisdiction to hear the second application for leave to appeal.
The court concluded that it had jurisdiction to hear the application for leave to appeal on the ground of parity. The court noted that the earlier order of refusal was not a final determination of the issue of parity and that the subsequent successful appeal by the co-offender created a new circumstance that the court could consider. The court found that the issue of parity was a substantial ground for leave to appeal and granted the appellant leave to appeal against his sentence. The respondent was ordered to respond to the appeal within the specified time frame.