Lowe v R

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.