Lowe v R

Case [2013] NSWCCA 141 27 June 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lowe v R [2013] NSWCCA 141
Hearing dates: 22 April 2013
Decision date: 27 June 2013
Before: Price J at [1]
Davies J at [2]
Barr AJ at [102]
Decision:
(1) Leave to appeal refused.
(2) Dismiss the appeal by the Crown.

Catchwords: CRIMINAL LAW - drug supply offences - sentence - appeal by offender - contingent Crown appeal - parity with co-offender - whether sentences manifestly excessive - 3 year delay in appealing - whether extension should be granted - where parity ground made out but no alteration to overall sentence - extension of time refused
Legislation Cited: Drug Misuse and Trafficking Act 1985
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Aldous v R [2012] NSWCCA 153
Edwards v R [2009] NSWCCA 199
Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138
Flack v R [2011] NSWCCA 167
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Arnaout v R [2008] NSWCCA 278; (2008) 191 A Crim R 149
Lorraway v R [2010] NSWCCA 46
McCall v R [2010] NSWCCA 174
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v AEM Snr [2002] NSWCCA 58
R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555
R v CBK [2002] NSWCCA 457; (2002) 135 A Crim R 260
R v Cheikh; R v Hoete [2004] NSWCCA 448
R v DW [2012] NSWCCA 66
R v Gidaro [2005] NSWCCA 18
R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252
R v Lawrence [1980] 1 NSWLR 122
R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Steele (Court of Criminal Appeal, 17 April 1997, Unreported)
R v Sunderland (1927) 28 SR (NSW) 26
R H McL v R [2000] HCA 46; (2000) 203 CLR 452
Ryan v The Queen (1982) 149 CLR 1
Shortland v R [2013] NSWCCA 4
Sinkovich v R [2011] NSWCCA 90
Category: Principal judgment
Parties: David Lowe (Applicant)
Crown (Respondent)
Representation: Counsel:
H Dhanji SC and J Lee (Applicant)
J Girdham SC (Respondent)
Solicitors:
Katsoolis & Co, Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/3312
Decision under appeal

Date of Decision:

2009-10-23 00:00:00

Before:

Conlon DCJ

File Number(s):

2009/3312

Judgment

PRICE J: I agree with Davies J.

DAVIES J: The Applicant pleaded guilty in the Local Court on 25 February 2009 to the following charges:

CAN Sequence 16: Ongoing supply of prohibited drug (Methylamphetamine);

CAN Sequence 5: Supplying a prohibited drug (443.8g methylamphetamine) being not less than the commercial quantity.

Each of those offences carried a maximum penalty of 20 years imprisonment. The charge of supplying a prohibited drug not less than the commercial quantity had a standard non-parole period of ten years.

On…

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.

Continue reading Lowe v R

Details

AGLC: Lowe v R [2013] NSWCCA 141
Case: [2013] NSWCCA 141
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the case of Lowe v R, the appellant, Lowe, was convicted of various drug supply offences and was sentenced to a total of nine years and six months imprisonment. The Crown subsequently filed a contingent appeal against the leniency of the sentence, while Lowe appealed against the severity of his sentence. The primary issues before the court were whether the sentences imposed were manifestly excessive and whether an extension of time should be granted for the Crown's appeal, given the three-year delay. The court needed to determine if the sentences were excessive and whether the delay in appealing warranted an extension of time.

The court acknowledged that while the sentences imposed on Lowe were indeed severe, they were not manifestly excessive given the nature of the offences. The court held that the principle of parity, which requires sentences to be proportionate to the gravity of the offence and the culpability of the offender, was satisfied. However, the court found that no alteration to the overall sentence was necessary. The appellant's argument regarding the delay in appealing was also considered, but the court found that the delay did not warrant an extension of time for the Crown's appeal. The court ultimately upheld the original sentence and denied the extension of time for the Crown's appeal.

The court's reasoning was grounded in the principle of parity and the severity of the offences committed. It was determined that while the sentences were severe, they were not manifestly excessive, as they reflected the gravity of the drug supply offences. The court further held that the delay in appealing did not justify an extension of time for the Crown's appeal, as the principle of parity had been satisfied. As a result, the sentences remained unchanged, and the Crown's appeal was dismissed.

Orders