Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lowe v R [2015] NSWCCA 46 Hearing dates: 11 February 2015 Date of orders: 27 March 2015 Decision date: 27 March 2015 Before: Ward JA at [1] Simpson J at [2] Davies J at [16] Decision: (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 Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342 Clay v R [2007] NSWCCA 106 Collins v The Queen (1975) 133 CLR 120 Eastman v R [2008] FCAFC 62; (2008) 166 FCR 579; (2008) 184 A Crim R 1 Farah Constructions Pty Ltd v Say Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Grierson v The King (1938) 60 CLR 431 Lowe v R [2013] NSWCCA 141 Matta v R (1995) 126 FLR 127 Milat v The Queen [2004] HCA 17; (2004) 78 ALJR 672 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Napier v State of Western Australia [2008] WASCA 106; (2008) 36 WAR 543 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v A [2003] QCA 445 R v Alameddine [2004] NSWCCA 286 R v Burrell [2007] NSWCCA 79 R v Edwards (No. 2) [1931] SASR 376 R v GAM (No. 2) [2004] VSCA 117; (2004) 9 VR 640 R v Giri (No 2) [2001] NSWCCA 234 R v Grierson (1933) 50 WN (NSW) 71 R v Grierson (1937) 54 WN (NSW) 144 R v Gust [2000] NSWCCA 287 R v Lapa (No 2) (1995) 80 A Crim R 398 R v Pallister [2002] WASCA 68; (2002) 131 A Crim R 460 R v Parenzee [2008] SASC 245; (2008) 188 A Crim R 47 R v Pettigrew [1997] 1 Qd R 601 R v Preston [2004] SASC 77; (2004) 145 A Crim R 212 R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Saxon (1998) 101 A Crim R 71 R v Spiero [2001] SASC 19; (2001) 78 SASR 531 R v Stead [1999] NSWCCA 41 R v Upson [2011] QCA 196 R v Upson (No 2) [2013] QCA 149; (2013) 229 A Crim R 275 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783 Sinkovich v R [2011] NSWCCA 90 Sinkovich v R [2014] NSWCCA 97 The Queen v GAM (No 2) [2004] VSCA 117; 9 VR 640 Category: Principal judgment Parties: David Sydney Lowe (Applicant) Crown (Respondent) Representation: Counsel: J Stratton SC (Applicant) J Girdham SC (Crown) Solicitors: Brenda Duchen, Solicitor (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/3312 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 23 October 2009 Before: Conlon DCJ File Number(s): 2009/3312 Judgment 1. WARD JA: I have had the advantage of reading in draft the comprehensive reasons of Davies J, with which I agree. I also agree with the additional observations of Simpson J. 2. SIMPSON J: I have read in draft the judgment of Davies J, with which I agree. I wish only to add the following brief observations. 3. The jurisdictional issue that arises is one of statutory construction. Section 5 of the Criminal Appeal Act 1912 (NSW) expressly permits appeals as of right in some cases (appeals against conviction on grounds involving questions of law alone); it permits appeals only by leave in other cases (appeals against conviction involving questions of fact alone or questions of mixed law and fact, and against sentence). Section 5 draws a clear distinction between the two procedures. It is therefore convenient to set out the terms of the s 5(1): "5 Right of appeal in criminal cases (1) A person convicted on indictment may appeal under this Act to the court: (a) against the person's conviction on any ground which involves a question of law alone, and (b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and (c) with the leave of the court against the sentence passed on the person's conviction." 1. The language of s 5 makes it plain, in my opinion, that unless the appeal is against conviction on a question of law alone, there is no appeal unless leave is granted. That is important, because s 6, which is headed "Determination of appeals in ordinary cases" sets out the various orders the court may make following an appeal. It says nothing of the orders that may be made following the hearing of an application for leave to appeal. It is implicit that such leave may either be granted or refused. It is only when leave has been granted that s 6 comes into play. 2. "Appeal" is not defined in the Criminal Appeal Act. 3. Nothing in s 6 (or elsewhere in the Criminal Appeal Act) indicates that refusal of an application for leave to appeal is equivalent to dismissal of an appeal. It is not. 4. The grant (or refusal) of leave to appeal is a discretionary decision. Refusal of leave to appeal does not create a jurisdictional bar to any further proceedings. If it be the case that a second (or subsequent) application for leave to appeal raises issues that have been determined on the merits in a previous application, that provides a powerful basis for the exercise of the discretion against a grant of leave. This, no doubt, is what Duggan J had in mind in R v Spiero [2001] SASC 19; 78 SASR 531 (for more detail, see the judgment of Davies J at [101] and [102], in the latter of which the relevant passage is extracted). 5. It must be assumed that there was a reason that the legislature drew the distinction between appeals as of right, and applications for leave to appeal. They are different procedures, and have different consequences. 6. That, in my opinion, is sufficient to dispose of the jurisdictional issue. However, the conclusion is supported by authority, to which I need refer only briefly, since it is fully dealt with in the judgment of Davies J. 7. The high point of the argument advanced on behalf of the respondent is a single passage in the judgment of Dixon J in Grierson v The King [1938] HCA 45; 60 CLR 431. As Davies J has pointed out, no issue of a subsequent application for leave to appeal arose in Grierson. Grierson was concerned with an attempt to launch a second appeal, after dismissal of the first appeal. The passage in the judgment of Dixon J on which the respondent relies is: "The court [the Court of Criminal Appeal] refused an application on the part of the prisoner to reopen an appeal which he had brought unsuccessfully from his conviction or to give him leave to bring a fresh appeal … The Supreme Court held, in accordance with the decision of the Supreme Court of South Australia (R v Edwards (No 2) [1931] SASR 376) that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal, and that the first appeal could not be re-opened after a final determination." (italics added) 1. In fact, the decision in Edwards included the following: "There is no express power to entertain a second appeal, or to hear a second application for leave to appeal, and there is no precedent in either case for its being done. There can be no doubt that the Court has power to entertain a second application for leave to appeal, at any rate, where it has not heard the merits of the application." 1. The observation of Dixon J, in my opinion, (and with respect to Callaway JA, who in The Queen v GAM (No 2) [2004] VSCA 117; 9 VR 640 declined so to declare), is obiter. 2. The remark of Dixon J has been superseded by the more recent and pertinent decision of the High Court in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 (see the judgment of Davies J at [77]) in dicta to which three judges (Dawson, Gaudron and Kirby JJ) subscribed. Their Honours anticipated precisely the situation that has here arisen, as did this Court in R v Stead [1999] NSWCCA 41. 3. In my opinion, refusal of an application for leave to appeal is not a jurisdictional bar to a subsequent application, although, depending on the circumstances, the disposition of the first application might constitute a discretionary bar. 4. I agree with the detailed reasons and analysis of Davies J in coming to the same conclusion, and I agree with his proposed disposition of the application, for the reasons given by him. 5. 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. 1. 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 has a standard non-parole period of 10 years. 2. On 22 May 2009 the Applicant pleaded guilty at Campbelltown District Court to the following five counts on an indictment: Count 1: Supply a prohibited drug (479.6g methylamphetamine) being not less than the commercial quantity. The maximum penalty is 20 years imprisonment with a 10 year SNPP; Count 2: Cultivate a prohibited plant by enhanced indoor means for a commercial purpose. The maximum penalty is 15 years imprisonment; Count 3: Possess an unauthorised firearm. The maximum penalty is 14 years imprisonment with a 3 year SNPP; Count 4: Possess an unregistered firearm. The maximum penalty is five years imprisonment; Count 5: Possess a prohibited weapon without a permit. The maximum penalty is 14 years imprisonment with a 3 year SNPP. 1. On 23 October 2009 he was sentenced by Judge Conlon as follows: Count 3: Fixed term of imprisonment for 2 years and 4 months commencing 4 July 2008 and expiring on 3 November 2010; Count 4: Fixed term of imprisonment for 12 months commencing 4 July 2008 and expiring on 3 July 2009; Count 5 (and taking into account the first Form 1): Fixed term of imprisonment for 3 years commencing 4 July 2008 and expiring on 3 July 2011; Count 2: Fixed term of imprisonment for 3 years commencing 4 July 2008 and expiring on 3 July 2011; Count 1: A non-parole period of 7 years commencing 4 July 2008 and expiring on 3 July 2015 with an additional term of 3 years to expire on 3 July 2018. CAN Sequence 16 (and taking into account the second Form 1): A non-parole period of 7 years commencing 4 July 2009 and expiring on 3 July 2016 with an additional term of 3 years to expire on 3 July 2019. CAN Sequence 5: A non-parole period of 8 years commencing from 4 July 2010 and expiring on 3 July 2018 with an additional term of 4 years to expire on 3 July 2022. 1. The total effective non-parole period was 10 years commencing 4 July 2008 and expiring on 3 July 2018 with an additional term of 4 years expiring on 3 July 2022. 2. The first Form 1 contained the following offences: (a) Possess firearm with altered/defaced identification mark (maximum penalty 5 years imprisonment); (b) Possess prohibited weapon without permit (maximum penalty 14 years imprisonment - SNPP 3 years); (c) Four counts of possessing ammunition (maximum penalty 50 penalty units); (d) Possess unregistered firearm (maximum penalty 5 years imprisonment); (e) Two counts of not keeping a firearm safely (being the unregistered firearm and the firearm with the altered/defaced identification mark) (maximum penalty 12 months imprisonment). 1. The second Form 1 consisted of two counts as follows: (a) Supply prohibited drug being 1650.4g of cannabis leaf (maximum penalty 10 years imprisonment); (b) Goods in custody being $30,335 (maximum penalty 6 months imprisonment and/or 5 penalty units). 1. The Applicant now seeks leave to appeal on one ground only: The sentence imposed on the applicant when compared with the sentence imposed on the co-offender Sinkovich, is such as to leave Lowe with a legitimate sense of grievance. 1. The Applicant has already sought leave unsuccessfully to appeal to this Court: Lowe v R [2013] NSWCCA 141. It is necessary, therefore, to set out in some detail how this present application for leave to appeal arises. The facts 1. The following is the summary of the agreed facts by the Sentencing Judge: Ongoing supply (methylamphetamine) - s 25A (CAN Sequence 16) 1. In May 2008 Operation Fiesta was formed to investigate the supply of methylamphetamine in the Minto and Claymore area. As part of this a controlled operation was authorised on 5 June 2008. 2. On 12 June 2008 a police undercover operative ("UCO") known as "Peter" attended Swettenham Road, Minto carrying $2,700 in cash. He wore a listening device. The Applicant was driven to this location by the co-offender Frank Sinkovich. Whilst Sinkovich waited by the car the Applicant went to the undercover operative's vehicle and supplied him with one ounce (31.8 grams gross weight) of methylamphetamine in exchange for the $2,700. That was later analysed and weighed showing a net total weight of 27.2 grams. 3. There was then conversation about a further supply. In this conversation the Applicant referred to "Jack" (co-offender Tutton) as a person who would chase money for him and that the UCO would meet him in the next week. The Applicant told the UCO that Jack was "like my uncle...'cause my father's who we work for in this". The Applicant told the UCO to bring an Esky or cooler next time to keep the methylamphetamine from drying out. The Applicant also gave the UCO a mobile number for future contact. 4. On 18 June 2008 the UCO called the Applicant to arrange the purchase of two ounces. He was told the price would be "five four". 5. On 20 June 2008 the UCO again drove to the Swettenham Road location and met with both the Applicant and Tutton. They supplied the UCO with 65.7 grams of methylamphetamine for $5,400. Later weighing indicated a net total weight of 53.3 grams. 6. Discussion then took place about the possible future purchase of "an elbow". The UCO asked for a rough price. The Applicant said it would be about "thirty". Tutton stated that several weeks ago the prices were running between "thirty and thirty-five". 7. Arrangements were later made for another meeting on 26 June 2008. On that day the UCO attended the same location. He called the Applicant's mobile phone and was told that he had organised for Tutton to attend. A short time later Tutton arrived and supplied the UCO with three ounces (98.5 grams) of methylamphetamine for $8,100. Later weighed it showed a net total weight of 81.8 grams. Discussion then turned to the price of an elbow. Tutton said he thought it would be "thirty-two". They agreed no one other than the Applicant and Tutton would attend for the big deal and that the money would be counted in the car. 8. On 30 June 2008 the Applicant spoke to the UCO over the phone. The UCO told him that the deal could probably be organised early next week. Shortly after that conversation the Applicant called Sinkovich and asked if he could postpone the delivery for another week. Sinkovich said he would "get it anyway as it didn't matter". The Applicant said "Okay but he said "definitely next week". 9. On 2 July 2008 the UCO again attended Swettenham Road and met with the Applicant and Tutton. They supplied 66 grams of methylamphetamine for $5,400. The net weight indicated 53.9 grams. The Applicant then told the UCO that "that thing" (the elbow) was getting delivered to his house that day. He said, "The boss has dropped it off at my house". On 3 July 2008 the meeting in respect of the elbow was confirmed for 12 noon on 4 July 2008. Supply prohibited drug (methylamphetamine), being not less than the commercial quantity 4 July 2008 (CAN Sequence 5) 1. On 4 July 2008 the UCO met with the Applicant and Tutton just before midday at Swettenham Road for the supply of one pound (16 ounces) of methylamphetamine for $32,000. They entered the UCO's car with the Applicant in the front passenger seat and Tutton in the rear. The Applicant removed three packages from a backpack. Tutton passed him an Esky from which the Applicant removed an ice-pack to keep the drugs cool. The total gross weight supplied to the UCO during this transaction was 512.8 grams. It was later analysed and weighed showing a net total weight of 443.8 grams. The UCO then handed over the money to the Applicant and as he began to count it other police officers moved in and all were arrested. The drugs were seized, as was the $32,000 in cash. The Applicant and Tutton were then taken back to the Macquarie Fields Police Station where they declined to be interviewed. Count one: Supply prohibited drug (methylamphetamine) being not less than the commercial quantity - 4 July 2008. 1. At 12.20pm on that same day being 4 July 2008 search warrants were executed at premises at 11 Bernardo Street, Rosemeadow and 12 Longstaff Way, Claymore. The Applicant had been leasing the Bernardo Street address from his sister Samantha Edmonds. When the search warrant was executed Sinkovich was sitting on the lounge watching "Underbelly" on television. Sinkovich told the police that the house was not his but he had stayed there overnight. Police noticed that the bonnet of his car was still hot. 2. In a freezer in the kitchen police located a large resealable bag containing 18.4 grams (net) and two resealable bags containing 6.5 grams (net) of the same drug (methylamphetamine). In the laundry freezer they found a pink plastic case containing 395.7 grams (net); a specimen jar with 31.7 grams (net) of methylamphetamine; one resealable plastic bag containing 26.6 grams (net); eighteen small resealable plastic bags containing white residue (0.7 grams of methylamphetamine). All items were later analysed and found to be methylamphetamine and the net total weight was 479.6 grams. Count two: Cultivate prohibited plant 1. During a search of the premises at 11 Bernardo Street police found in a room within the house eighteen cannabis plants grown by enhanced indoor means. Counts three, four and five - possess unauthorised prohibited firearm, possess unregistered firearm, and possess a prohibited weapon without a permit 1. During a search of the main bedroom police located in the wardrobe one .22 calibre Phoenix self-loading pistol with ID erased (the first matter on the Form 1 relating to Count 5) with two magazines in bubble wrap (count three). They also found a .22 calibre BSA Sportsman single shot rifle JB31077, (count four) and two Taser-like devices (count five). 2. The eight further matters on that Form 1 related to other firearms and ammunition located within the premises at 11 Bernardo Street on that same day. 3. The two further matters on the other Form 1 (relating to CAN Sequence 16) are in respect of $30,335 in cash found within those premises and 1,650.4 grams of packaged and loose cannabis leaf found in the same room where the cannabis plants were growing. Subjective factors 1. The Applicant did not give evidence at the sentencing hearing so that the detail of his background and circumstances came from reports which were tendered and from his sister who gave evidence. The Sentencing Judge summarised the Applicant's subjective circumstances as follows. 2. The Applicant was 37 years of age when sentenced and is now aged 41. While his criminal record was not an extensive one, and he had no prior drug related matters, it was nevertheless not one that would entitle him to leniency. 3. The Applicant was the eldest of four children. He was apparently raised in a caring and supportive family environment and there were no significant issues during his childhood. He had always been protective of his three sisters and when his parents were called upon to work long hours the Applicant felt he had a responsibility to care for them. 4. He completed year ten at high school, achieving average results. After leaving the school he completed 12 months of a carpentry apprenticeship. He then worked building air conditioners for three months before commencing and completing a four year motor mechanics apprenticeship. He remained employed in that field for a further four years. Since that time he had been variously employed as a storeman, a truck driver, and most recently between 2005 and 2007 he had conducted his own landscaping/home maintenance business. 5. He informed the probation officer that he used cannabis between the ages of 14 and 24, and would use amphetamines and ecstasy on weekends approximately once a month throughout his life. However, he maintained that his use of illicit drugs was not a factor in respect of the commission of the present offences. 6. He commenced a 14 year relationship when he was about 20 years of age and he had three children then aged 17, 11 and 10 from that relationship. He said he went through a difficult separation with his ex-partner around Christmas 2006. However, he remained on friendly terms with her and had been assisting with the care of his children while she studied full time at TAFE from about mid 2007 until he was arrested in respect of the present offences. Since his incarceration that relationship had become strained and his ex-partner refused to allow him any contact with his children. It seems that the Applicant did not want his children seeing him in a custodial environment. The Applicant also informed the probation officer that he entered a new relationship about six months prior to his arrest but that relationship had also ended. He apparently remained unemployed since about 2007 and was not in receipt of Centrelink benefits. 7. He advised the probation officer that he was a member of the Rebels Outlaws motorcycle gang, joining in 1999. He was the sergeant at arms of the Wollongong chapter between 2004 and 2006 and was the secretary of the chapter from 2006 up until his arrest in July 2008. He adamantly denied that this association was a factor in the commission of the present offences. 8. The Applicant's parents and sisters all resided in Queensland. His mother indicated that whilst the family was disappointed about his involvement in the offences the family would continue to support him. 9. Ms Crystal Slack, the Applicant's sister, confirmed that the Applicant had indeed provided much comfort and support to all of his sisters both growing up and in their adult lives. She said he was a person that was always there for them. 10. In both the pre-sentence report and the report of the psychologist, Mr Anthony Diment the Applicant sought to provide a reason for his involvement in these offences. To the probation officer he indicated in part, that a friend owed a large drug debt, that he (the Applicant) had agreed to be that person's bodyguard/security and that he was attempting to assist his friend work off that drug debt by supplying drugs. A similar explanation appeared in the psychologist's report. In accordance with the principle in R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59] the Sentencing Judge correctly placed little weight on those untested assertions. 11. In his report Mr Diment stated that the Applicant was suffering from anxiety and depression. He said: While some of this is reasonably due to his current circumstances and pre-sentence, he is genuinely concerned about his children and family's welfare. He appears to have had a tough upbringing and he has always considered himself responsible for protecting his family. A role which he takes seriously. 1. The Applicant informed the psychologist that he regretted his actions: big time, like you wouldn't believe...now will not be involved in anything like this that is in my power to do so...upset over the implications for others, not just me...family, kids...issues of drugs and all that for those into that rubbish. 1. Mr Diment stated: In regards to his favourable prognosis and rehabilitation prospects, in his favour is a basically well-adjusted "core" personality and he has a good work ethic. His main passion in life involves cars and motorbikes and he told me that people in his motorcycle club 'Are on my back big time about my stupidity in all this...I reckon I have learned the hard way...I won't get another chance from them. 1. The Sentencing Judge said that this statement might qualify for an expression of regret but it could not be put any higher than that. 2. The Sentencing Judge said that the fact that at 37 years of age the Applicant did not have any extensive criminal record and that he had had a continuous working history gave him some hope that the Applicant had reasonable prospects of rehabilitation. Co-offender Frank Sinkovich 1. Sinkovich pleaded not guilty. On 6 July 2009 following a trial, the jury returned verdicts of guilty in respect of two counts as follows: Count 1: On 12 June 2008 knowingly take part in the supply of a prohibited drug namely methylamphetamine; Count 2: That between 29 June 2008 and 5 July 2008 he did supply a prohibited drug being not less than the commercial quantity of methylamphetamine. 1. Count 2 concerned the same transaction charged as CAN Sequence 5 against the Applicant. Count 1 was concerned with the same acts as constituted the on-going supply against the Applicant (CAN Sequence 16). Count 1 is relevant because it is necessary to consider the total effective sentences imposed on each of the Applicant and Sinkovich. 2. Judge Conlon sentenced Sinkovich on 6 November 2009 as follows: Count 1: A non-parole period of two years commencing 4 July 2008 and expiring 3 July 2010 with an additional term of two years to expire 3 July 2012; Count 2: A non-parole period of nine years commencing 4 July 2009 and expiring 3 July 2018 with an additional term of 4 years expiring 3 July 2022. 1. The total effective sentence was a non-parole period of 10 years with a balance of term of 4 years. 2. An appeal to this Court by Sinkovich was unsuccessful: Sinkovich v R [2011] NSWCCA 90. In that appeal Sinkovich argued a parity ground based on the sentence the Applicant received in respect of CAN Sequence 5 and argued that the sentences were manifestly excessive. 3. There was nothing in particular in Sinkovich's subjective circumstances to distinguish him from the Applicant apart from the fact that he was aged 54 at the time of sentence. He had only a minor criminal record. The Sentencing Judge thought that he had reasonable prospects of rehabilitation. However, he showed no remorse, maintaining his innocence in the face of what the Sentencing Judge described as an overwhelming prosecution case. Like the Applicant he belonged to the Wollongong Chapter of the Rebels Motorcycle Club, having previously been its president. 4. When sentencing the Applicant in relation to the supply of not less than the commercial quantity of the prohibited drug the Sentencing Judge said that it involved a considerable degree of planning being negotiations in respect of price and the timeframe when delivery could be made. It involved the Applicant contacting Sinkovich who would organise for the collection of the commercial quantity and bring it to a location where the Applicant could collect it and then on supply it to the UCO. His Honour assessed the objective seriousness as far as the Applicant was concerned as falling above the mid range but not at the upper end of the range. 5. When sentencing Sinkovich for the same offence his Honour again said that it indicated a considerable degree of planning involving negotiations in respect of the price and the timeframe for delivery. He said Sinkovich was the "go to" man for the supply and it involved Sinkovich organising for the supply and collection of the drug and then organising its supply to the Applicant so he could on supply it to the UCO. This involved a driver being organised to take the Applicant and the co-offender Tutton to the Swettenham Road location. Sinkovich then waited at the Applicant's premises while the transaction was taking place. 6. The Sentencing Judge assessed Sinkovich as being slightly above the Applicant in the hierarchy. He assessed the objective seriousness of the offence as far as Sinkovich was concerned as falling slightly above the mid- range. 7. The judgment of this Court in the appeal by Sinkovich was given on 15 April 2011. The application for leave to appeal by the present Applicant came before this Court on 22 April 2013. The orders made by this Court in the Applicant's appeal were: (1) Leave to appeal refused. (2) Dismiss the appeal by the Crown. The Crown had brought an appeal on a contingent basis that the sentences, if reduced for parity reasons or otherwise, would be manifestly inadequate. 1. The conclusion of this Court in relation to the ground of appeal by the Applicant based on parity was as follows: [73] In my opinion, viewed overall, the findings of objective seriousness in relation to the same offence charged against each of the Applicant and Sinkovich are relatively equal and the distinction the Sentencing Judge made that Sinkovich was slightly above the Applicant in the hierarchy would of itself require no different sentence to be given to each of the offenders. There was no real difference in their subjective circumstances and the difference in relation to any remorse was minimal particularly bearing in mind that the Applicant did not give evidence at the sentencing hearing. [74] The significant matter is that, all other things being relatively equal, the notional starting point for the Applicant was three years above that of Sinkovich. Although the two offenders were sentenced by the same judge only weeks apart and the judge made reference to their comparative roles in the offence no reasons are provided by the judge for the difference in the starting point in the sentences. The difference was not insignificant (23%) and it had the effect of denying to the Applicant almost the entirety of the discount he was otherwise given for an early plea. [75] Whilst the difference in their roles as found by the judge was such that the same sentence for each would not have resulted in a justifiable sense of grievance on the Applicant's part, the imposition of a higher sentence to the extent of three years (before the discount for the early plea) on the Applicant with the lesser role and in the absence of other aggravating factors results in a justifiable sense of grievance. [76] This ground is made out. Nothing in the evidence suggests otherwise than that the notional starting point for each offender should be the same. Subject to other matters which I shall mention later, with a discount of 25% for the early plea, and maintaining the ratio employed by the Sentencing Judge the Applicant should be sentenced to a non-parole period of 6 years and 6 months with an additional term of 3 years and 3 months. 1. Notwithstanding that determination the Applicant was unsuccessful. The reasons of this Court were as follows: [89] If time was extended in the present case the result would be that it would be necessary to re-sentence the Applicant because of his success in relation to Ground 1 based on parity. It would then be necessary to consider the Crown's appeal which would involve a consideration of the proposed new sentence in respect of CAN Sequence 5 (referred to in paragraph [76] above. [90] In my opinion the matter can be approached this way. If the Applicant was to be re-sentenced for CAN Sequence 5 it would then be necessary to consider principles of concurrency, accumulation and totality: Shortland v R at [147]. A consideration of those matters leads me to the conclusion that, from the perspective of totality, an effective sentence for all matters is precisely the effective overall sentence which was imposed. [91] The overall sentence covered three serious drug supply offences and a number of serious firearm offences before the lesser offences are considered. The co-offender Sinkovich was charged and sentenced as set out in paragraphs [59] to [62] above for the two offences referred to, one of which (Count 2) was identical to CAN Sequence 5 charged against the Applicant and the other of which arose out of the same facts as CAN Sequence 16 charged against the Applicant. [92] He appealed to this Court, arguing that the sentences were manifestly excessive. This Court dismissed the appeal saying: [62] It follows that the sentence passed, both in total and in relation to the individual offences, was well open to his Honour and albeit towards the top of the range of sentences for offences of this kind, was well within the range of the permissible exercise of his Honour's sentencing discretion. Error has not been demonstrated. Accordingly, grounds of appeal 1 and 2 have not been made out. (emphasis added) [93] Any overall sentence less than the Sentencing Judge imposed upon the Applicant would not be warranted. This is not to enter upon the debate concerning whether s 6(3) refers only to individual sentences or extends to the totality of sentences imposed upon an appellant (see the differing views in Arnaout v R [2008] NSWCCA 278; (2008) 191 A Crim R 149). It is simply to recognise that regard must be had to the total effective sentence to see that it represents a proper period of incarceration for the totality of the criminality involved: R v AEM Snr [2002] NSWCCA 58 at [70]. [94] There is power by virtue of s 7(1) and/or (1A) Criminal Appeal Act 1912 to have regard to the overall sentence imposed and to correct anomalies that may result from the alteration to one particular sentence: Ryan v The Queen (1982) 149 CLR 1 at 22-23 and 25; R H McL v R [2000] HCA 46; (2000) 203 CLR 452 at [32]-[33]. So, in R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 Johnson J (with whom Mason P & Barr J agreed) restructured a large number of sentences to comply with proper sentencing principles resulting in the same overall sentence and the same non-parole period that had been imposed by the judge at first instance. [95] If this Court was to re-sentence the Applicant the sentences would be structured in a manner that would adjust the concurrency and accumulation to produce the same overall sentence. In those circumstances, although the Applicant has demonstrated error in regard to parity in respect of CAN Sequence 5 there is ultimately no merit in the appeal. … 1. The appeal of Sinkovich was unsuccessful principally because the Court of Criminal Appeal upheld the Sentencing Judge's approach to the sentence based upon R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. The judgment of this Court predated the judgment of the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. 2. That led Sinkovich to make application under s 78 Crimes (Appeal and Review) Act 2001 (NSW). That application was dealt with by Latham J in Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342. Although her Honour found that the reasoning of both the Sentencing Judge and this Court was infected by the error identified in Muldrock, her Honour held that on a proper construction of s 79 of the Crimes (Appeal and Review) Act that section did not permit consideration based upon the Muldrock error. 3. Sinkovich then brought judicial review proceedings in the Court of Appeal seeking a review of Latham J's decision. The Court of Appeal upheld the application and made a declaration in these terms: Declare that an error of law on the part of the sentencing judge and, on appeal, the Court of Criminal Appeal, which may have caused a sentence to be imposed of greater severity that would otherwise have been the case, constitutes an aspect of the proceedings giving rise to the sentence which may form the basis of a doubt or question as to circumstances having the potential to mitigate the sentence imposed, for the purpose of considering an application for an inquiry under s 78 of the Crimes (Appeal and Review) Act 2001. Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783. 1. The matter must have been reconsidered by Latham J who on 18 December 2013 apparently made a referral to this Court pursuant to s 79 of the Crimes (Appeal and Review) Act: see Sinkovich v R [2014] NSWCCA 97 at [7]. 2. On that referral the sole ground of appeal was: The sentencing judge erred in the application of the standard non-parole period legislation in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120 with respect to count 2. 1. The Crown conceded that the ground should be upheld. The issue for this Court was whether a lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912 (NSW). This Court resolved to resentence. It maintained the sentence imposed for Count 1 but quashed the sentence imposed for Count 2. In lieu, this Court sentenced the appellant in respect of Count 2 to imprisonment comprising a non-parole period of 7 years and 6 months and a balance of the term of the sentence of 3 years and 6 months. The sentence was to date from 4 July 2009 with the appellant becoming eligible for release on parole on 3 January 2017 and the total term expiring on 3 July 2020. 2. It is as a result of that new sentence imposed on Sinkovich that the present application has been made. Jurisdiction 1. In circumstances where the present Applicant has already applied unsuccessfully to this Court to vary his sentences, a preliminary issue arises whether this Court has jurisdiction to entertain this present application. The Applicant accepts that if this Court in Lowe v R [2013] NSWCCA 141 had made an order dismissing the appeal there would be no jurisdiction to hear the appeal. However, the order made by this Court was relevantly that the application for leave to appeal should be refused. The Applicant submits that in those circumstances this Court has jurisdiction to entertain the appeal. 2. The Applicant relies on what Dawson and Gaudron JJ said in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 305: Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed. However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed. An application based on matters agitated on a previous application is properly to be regarded as frivolous or vexatious. But that is not the case where an application is based on a sentencing disparity which has subsequently emerged. That is always a possibility in a case of this kind. That being so, the interests of justice require that, if an application for leave against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed. These remarks were agreed by Kirby J (at 333). 1. The Crown submitted that the Applicant's argument in that regard had been considered and rejected in R v G.A.M. (No. 2) [2004] VSCA 117; (2004) 9 VR 640. In that case the Applicant had earlier been refused leave to appeal against his conviction on various sexual offences but had been granted leave to appeal against the sentence. Subsequently the complainant swore a statutory declaration to the effect that all the allegations of sexual abuse that she had made were false. Thereafter the Applicant sought an extension of time within which to make a second application for leave to appeal against conviction. 2. In that case Winneke P (with whom Callaway JA (in a separate judgment) and Eames JA agreed) said: [25] Many of the authorities to which I have referred were applied by this Court in its decision in R. v. McNamara [No.2]. In my view, and subject to what appears hereunder, they result in the conclusion that this Court has no power to reopen either an application for leave to appeal or an appeal (whether against conviction or sentence) which has been determined on the merits on the grounds of fresh evidence. [26] The principle established in Grierson's case has consistently been followed in those States of Australia whose statutory appellate procedures derive from the English Act of 1907. Thus, in Victoria, the principles have been applied in McNamara [No.2] and also in R. v. De Jonk; in Western Australia in R.v. Stone; and Vella; in New South Wales in Saxon; and in South Australia in Caruso. These decisions appear to recognize the principle that once an appeal or application for leave to appeal against conviction or sentence has been dismissed and the decision of the Court of Appeal has passed into record, a further appeal or application, based on fresh evidence, cannot be entertained by the Court which is, by then, functus officio. The principle takes its colour from the statutory appellate process contained in Part VI of the Crimes Act including as it does, the prerogative process contained in s.584. The substance of that statutory process does not take its colour from common law principles nor from principles which govern appellate processes in the civil arena. Thus, once the application for leave or the appeal has been decided on its merits and has passed into record, it cannot be reopened. Whether the appeal is "an appeal" as of right or one for which leave is required does not matter. … [34] In the light of the review which I have made of the authorities in England and in this country, I do not accept the submission of counsel for the applicant that such authorities bind this Court to draw a distinction between the power of an appellate court to re-open a criminal appeal which has been dismissed on the merits and an application for leave which has been refused after argument upon the merits. Counsel has relied, for the existence of such a distinction, upon the various judgments delivered in Postiglione (supra), particularly the joint judgment of Dawson and Gaudron, JJ. where their Honours state that there is "no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed". However, neither McHugh, J. nor Gummow, J. expressed any view supporting the validity of such a distinction; and Kirby, J. expressed the view that, in circumstances where the sentencing of the co-offender remains outstanding, it may "well be sensible to adopt the expedient proposed by Dawson and Gaudron, JJ. in their reasons". (my emphasis). However, his Honour further stated that he was prepared to assume that there was, in the case at hand, "no jurisdictional barrier to the appellant's second application". His Honour did not find it necessary to refer to Grierson v. The King. [35] In the light of the peculiar circumstances which existed in Postiglione, and the various reasons given by the Judges to resolve them, I cannot accept the submission of the applicant's counsel that the decision binds this Court to conclude (contrary to Grierson v. R.) that an application for leave to appeal against conviction which has been dismissed or refused on its merits can be re-opened on the basis of "fresh evidence"; but that an appeal against conviction, which has been dismissed on the merits, cannot. That would truly be "an expedient" because it would wholly depend upon the words used by the appellate court in disposing of the application. I should also add that, as a matter of practice in this State, petitions for mercy (generally on the basis of "fresh evidence") are - and have been - presented to the Executive pursuant to s.584 Crimes Act following the conviction and sentence of persons charged with indictable offences; and the dismissal or refusal thereafter (on the merits) of their applications for leave to appeal. (citations omitted) 1. The two starting-points for a consideration of this issue are R v Edwards (No. 2) [1931] SASR 376 and R v Grierson (1937) 54 WN (NSW) 144. 2. In Edwards the South Australian Court of Criminal Appeal heard an appeal against conviction on matters of law, an application for leave to appeal against conviction on matters of fact and an application for leave to appeal against sentence. The appeal was dismissed and the applications for leave were refused. The offender later sought an extension of time for an appeal and a further application for leave to appeal against his conviction on the basis of fresh evidence. 3. The Court said (at 378 – 380): This Court in its criminal appellate jurisdiction is a statutory Court. An appeal lies to it on any of the grounds mentioned in sec.5 above quoted. The right of the appellant, under this section, to appeal, has been exercised. There is no express power to entertain a second appeal, or to hear a second application for leave to appeal, and there is no precedent in either case for its being done. There can be no doubt that the Court has power to entertain a second application for leave to appeal, at any rate, where it has not heard the merits of the application. … On the language of the Act and applying the principle of the decisions on the civil side, which have been quoted, we think we have no jurisdiction to grant the leave to appeal which is sought. (emphasis added) 1. In R v Grierson (1933) 50 WN (NSW) 71 the appellant appealed against the severity of two sentences imposed upon him. In respect of one sentence no change was made. In respect of the other, the Court increased the sentence to life imprisonment. The report does not disclose what order was actually made. However, in the report of his subsequent application (R v Grierson (1937) 54 WN (NSW) 144) it is said: He had already appealed to the Court of Criminal Appeal, and that appeal had been dismissed. 1. The basis for the second application was not identified, although the subsequent judgment of Rich J in the High Court said that it concerned new facts about a Crown witness. However, Jordan CJ (with whom Davidson and Halse Rogers JJ agreed) said: In the case of the present application for leave to appeal, a preliminary objection has been taken on behalf of the Crown that the Court has no jurisdiction to entertain the application by reason of the fact that an appeal has already been maintained to this Court, and dismissed after the merits had been determined. The point which has been raised is exactly covered by the decision of the Full Court of South Australia in R. v. Edwards (2), and I am of opinion that this Court should follow that decision. When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter so far as appeal is concerned, and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him or to his legal advisers or whenever a new fact is alleged to have come to light. This does not mean that injustice must necessarily occur when new substantial evidence pointing to a prisoner's innocence is discovered, after his appeal has been finally disposed of. In such a case recourse may be had to s. 26 of the Criminal Appeal Act, 1912, or to s. 475 of the Crimes Act, 1900. There is no reason to suppose that the procedure provided by those sections is not adequate for the consideration it may now be sought to raise on behalf of the prisoner. For these reasons, I am of the opinion that the preliminary objection taken on behalf of the Crown must be sustained, and that we must decline to entertain the present application. 1. The Applicant sought special leave to appeal to the High Court. Special leave to appeal was refused: Grierson v The King (1938) 60 CLR 431. Rich J said (at p. 434): [T]he jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act and that when the court has heard an appeal on its merits and given its decision the appeal cannot be reopened. 1. Starke J said (at p. 435): I agree entirely with the reasons given by Jordan C.J. for the decision of the Supreme Court of New South Wales sitting as the Court of Criminal Appeal, and I can add nothing to them of any value. 1. Dixon J said (at p.435): The Supreme Court held, in accordance with a decision of the Supreme Court of South Australia (R. v. Edwards (No. 2) [1931] SASR 376), that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination. In my opinion this conclusion is correct. (emphasis added) 1. McTiernan J agreed with both Rich J and Dixon J. 2. A perusal of Jordan CJ's judgment discloses that he said nothing at all about the situation where an application for leave to appeal has been refused. Certainly Edwards, to which Jordan CJ made reference, also refers to applications for leave but the issue in Grierson was a second application where an appeal had already been dismissed. The decision of this Court in Grierson does not stand for the principle that a second application for leave cannot be brought. 3. In the High Court neither Rich J nor Starke J made any reference to an application for leave to appeal and the effect a dismissal of such an application would have on a subsequent application. Dixon J endorsed what was said in Edwards but the issue for the High Court did not concern an application for leave to appeal. 4. There does not seem any doubt that Grierson is authority for the point that this Court and its equivalents in other states has no jurisdiction to entertain a second appeal where there has been a dismissal of the appeal on the merits. The issue is whether there is an exception to the principle and whether the principle extends, without exceptions, to the situation where leave to appeal is refused. 5. In In Eastman v R [2008] FCAFC 62; (2008) 166 FCR 579; (2008) 184 A Crim R 1 at [45] the Full Court of the Federal Court collected the authorities which appear to allow an exception to the Grierson principle where the appeal court has denied procedural fairness, or has failed to deal with all of the grounds of appeal argued. Those authorities include: R v Lapa (No 2) (1995) 80 A Crim R 398; R v Pettigrew [1997] 1 Qd R 601; R v Saxon (1998) 101 A Crim R 71; R v Gust [2000] NSWCCA 287; R v Giri (No 2) [2001] NSWCCA 234; R v Pallister [2002] WASCA 68; (2002) 131 A Crim R 460; R v Preston [2004] SASC 77; (2004) 145 A Crim R 212; and R v Burrell [2007] NSWCCA 79. 6. In Saxon Wood J (with whom Smart J and Sperling J agreed adding some remarks of their own), allowed for three exceptions as follows: 1. where the earlier appeal was abandoned; 2. where a ground of appeal had not been dealt with if application made before the judgment was perfected; 3. where there has been a denial of procedural fairness. 1. It may be noted that in R v Giri (No. 2) the Court appeared to accept that the bases for re-opening a civil judgment provided the appropriate test for consideration of whether an appeal to this Court should be re-opened, without considering Grierson or matters going to the jurisdiction of this Court from the Criminal Appeal Act 1912 (NSW). That approach seems to have been accepted in passing in R v Burrell [2007] NSWCCA 79 at [31] but the High Court subsequently allowed an appeal from that decision. 2. None of the cases mentioned was concerned, however, with the present issue of whether a refusal of leave to appeal produces the same result. It is necessary, therefore, to examine cases where this point has been raised. 3. In Matta v R (1995) 126 FLR 127 the applicant had sought an extension of time to appeal to the Court of Criminal Appeal of Western Australia but that had been refused. Later, he made a further application for extension of time although the grounds of his proposed appeal differed from the earlier grounds. The application was refused. Pidgeon J said (at 129): The order made by the Court at the earlier hearing was an order that time be refused and time was refused on the basis that the proposed grounds had no merit. As it was a refusal of time as distinct from a refusal for application for leave, can it be submitted that it is in a different category? In my view, the reasons of Sir Owen Dixon in Grierson indicate that it makes no difference that the first application is an extension of time. His Honour considered that the principles apply to both an appeal or application for leave to appeal and I would consider that similar reasoning would apply to an extension of time. 1. Owen J said (at 131): Once an appeal has been heard on the merits, all statutory rights of appeal have been exhausted. Any further appeal is incompetent: Grierson (supra) at 435-36. It matters not that the second application proceeds on different grounds from those advanced on the earlier occasion: Grierson (supra) at 432; Vella v R (1991) 52 A Crim R 298. The same principle applies whether the problem arises in a substantive appeal or in an application to extend time: R v Smith (No 2) (1969) QWN 50. 1. This decision was later followed in Napier v State of Western Australia [2008] WASCA 106; (2008) 36 WAR 543. Although, in the interim, Postiglione was decided (on 24 July 1997), no reference was made to it in Napier. Napier, like Matta, did not involve an application for leave to appeal, nor did it involve a parity ground. However, the principle in Matta that Napier followed was that there was no difference between an appeal, an application for leave to appeal and an application to extend time. Postiglione might have suggested otherwise. 2. R v Stead [1999] NSWCCA 41 was an application for leave to appeal from a sentence imposed on the Applicant. One of the grounds of appeal was based on parity with a co-offender. All of the grounds of appeal raised were fully considered in the judgment of Abadee J (with whom Spigelman CJ and Adams J agreed). When the issue arose of what order should be made to dispose of the appeal Abadee J said: [37] That comes to the proposed order. Viana is still to be sentenced and he is a co-offender. That matter would suggest that leave to appeal should be refused rather than an order being made to grant leave and dismiss the appeal: see Postiglione at 305. 1. In addition, Spigelman CJ said: [42] The order of the Court is that leave to appeal is refused. [43] Mr Stead, the order of the Court is that leave is refused. That is a matter of some significance. Customarily the order the Court makes is that the Court grants leave to appeal and dismisses the appeal. Your counsel, Mr Conomos, will explain the difference to you. 1. In R v Spiero [2001] SASC 19; (2001) 78 SASR 531 the applicant filed an application seeking leave to appeal against conviction and sentence. The applicant then escaped from prison and did not prosecute the appeal. The application for leave was summarily dismissed. After he was recaptured, the applicant filed a second application for leave to appeal against the sentence. One of the grounds concerned parity. Duggan J (with whom Doyle CJ and Williams J agreed) first noted that the appeal had not been heard on its merits. His Honour accepted that if leave had been granted but the appeal dismissed Grierson would have precluded the second application. 2. Duggan J then said, after referring to the passage from the judgment of Dawson & Gaudron JJ in Postiglione: [17] It is apparent that their Honours were of the view that there will be some cases in which a further application for leave to appeal may be brought after the dismissal of an earlier application. Nevertheless, the circumstances of the previous application for leave to appeal will often have an important bearing on whether the court should grant leave to appeal on the subsequent application. Their Honours pointed out that it would be inappropriate to permit a subsequent application based on matters which were agitated on an earlier application. It is my view that it would also be inappropriate to grant leave on an application in which the grounds which were sought to be argued were available and could have been argued at the time of the earlier application. 1. In R v A [2003] QCA 445 the applicant sought an extension of time to appeal against his conviction. That application was dismissed. He later brought a further application for an extension of time to appeal against his conviction although on different grounds from those previously relied on. McMurdo P (with whom Jones J agreed) said: [25] Although the applicant has had a prior application for an extension of time within which to appeal against conviction, that application was based on quite different grounds to those now raised. There is some debate as to whether, in those circumstances, this Court has jurisdiction to hear a further application for extension of time. Cases such as Grierson v R ; R v Smith ; R v Smith [No 2] and R v Kenny suggest this Court has no jurisdiction to determine a second application for an extension of time within which to appeal against conviction. On the other hand, Re Sinanovic's Application, suggests that were the applicant able to establish that he had new matters demonstrating good prospects of success on appeal, this Court may have the power in the interests of justice to grant an application for an extension of time within which to appeal, even at this very late stage and after an earlier unsuccessful application on a separate basis. As the grounds of appeal sought to be argued by the applicant in the appeal here are without substance, it is unnecessary to express a concluded view on this point. 1. Davies JA said: [38] The principle stated in Grierson is based on the statutory nature of an appeal and the finality of a decision given on such an appeal. Moreover it was said in that case to apply equally to a dismissal on the merits of an application for leave to appeal. [39] I do not think that the application of this principle to cases in which a previous appeal has been dismissed on its merits can now be in any doubt. And even if I had any doubt on that question I would feel bound to follow the now abundant authority in the High Court, this Court and other intermediate courts of appeal. [40] The application of this principle to an earlier decision dismissing an application for leave to appeal is less clear, notwithstanding the statement by Dixon J in Grierson that it does apply. Such an order appears on its face to be an interlocutory one notwithstanding that it may be on the ground that the appeal would fail on its merits. However, the principle was applied to such a case by the Court of Criminal Appeal twice and appears to have been accepted by this Court in R v Pettigrew though the Court held that it had a limited power to reconsider such a decision. In my view there is a great deal to be said for the application of this principle to applications for leave to appeal against sentence in this Court as those applications are, in practice, treated as appeals. However, I do not find it necessary to reach a final conclusion on this question. [41] In the present case, as the facts stated by the President show, what had previously been dismissed was an application for an extension of time within which to appeal against his conviction. That was, in my opinion, much more clearly an interlocutory order notwithstanding that the application was dismissed because the Court thought that there were no merits in the applicant's proposed appeal. In my opinion, therefore, such an order does not preclude this Court from hearing a further such application, though if it were based on the same grounds it would be bound to fail. It is therefore necessary to consider the merits of this application which is not on the same grounds. 1. No reference was made by any of the judges to Postiglione. Further, Davies JA's conclusion at [41] was at variance with the Western Australian decisions in Matta and Napier which both concerned a second application seeking an extension of time in which to appeal. 2. G.A.M. (No 2) was decided on 2 July 2004. It may be noted that no reference was made in it to Spiero or Stead. 3. In R v Alameddine [2004] NSWCCA 286 the applicant sought leave to appeal against his sentence for a robbery committed in company. The appeal was unsuccessful. Wood CJ at CL (with whom Beazley JA and Hulme J agreed) said: [97] It follows, in my view, that error has not been shown. Submissions were received as to the orders which the Court should make, in the event of it deciding that the appeal lacked merit. This was related to the circumstance that the other persons charged with the armed robbery are yet to be tried and sentenced, leaving open the possibility that a fresh question of parity might arise in the event of one or more of them receiving a sentence that is more favourable than that passed upon the Applicant. [98] To allow for the possibility of a further appeal, it was submitted that the preferable course was to refuse leave to appeal, rather than to grant leave and to dismiss the present appeal. In support of this proposition reference was made to the observations of Dawson and Gaudron JJ in Postiglione v R at 305: Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed. However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed. An application based on matters agitated on a previous application is properly to be regarded as frivolous or vexatious. But that is not the case where an application is based on a sentencing disparity which has subsequently emerged. That is always a possibility in a case of this kind. That being so, the interests of justice require that, if an application for leave against sentence is to be heard and determined against an Applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed. [99] Kirby J provided some support for this approach, in so far as he observed, at 333: In the nature of complaints of disparity in sentencing (and as the facts of this case demonstrate) it will quite often be the case that the disparity which is said to give rise to the justifiable sense of grievance is not finally known until a considerable time after the complaining prisoner was sentenced. Where the final sentencing of a co-offender, or of another relevant offender, remain outstanding it may well be sensible for a Court of Criminal Appeal to adopt the expedient proposed by Dawson and Gaudron JJ in their reasons. [100] I am of the view that there is always merit in disposing of appeals in a way that achieves finality, and that there is something of a chicken and egg argument involved in leaving the final determination of parity questions until all the relevant proceedings are concluded. I have however reached the conclusion, in this case, that the proper order is to refuse leave to appeal, upon the understanding, which was accepted by counsel for the Applicant, that if further leave is sought, then it will be limited to any question of parity that may arise in relation to the sentences which are passed upon any other persons who are convicted of or plead guilty to the subject offence. [101] Accordingly I propose that the Court make the following order; 1. Leave to appeal refused. 1. In R v Parenzee [2008] SASC 245; (2008) 188 A Crim R 47 the applicant applied for an extension of time for permission to appeal (as it is called in South Australia). That application was refused after a hearing on the merits. He subsequently brought a second application for an extension of time for permission to appeal. The grounds relied upon in the second application differed from those considered in the first. 2. Doyle CJ followed Spiero and after quoting the passage in Duggan J's judgment ([102] above) he added: [33] …The same distinction was adverted to by Mason CJ, Wilson and Brennan JJ in Coulter v R (1987-1988) 164 CLR 350 at 356 where their Honours said: The jurisdiction which the Court exercises in determining an application for leave is not a proceeding in the ordinary course of litigation: Collins v R (1975) 133 CLR 120, at p 122. It is a preliminary procedure recognized by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention. [34] There is a significant difference between the hearing and disposition of an appeal against conviction, and the hearing and disposition of an application for permission to appeal, or for an order extending the time within which to appeal or to apply for permission to appeal. In the latter circumstances, the Court does not entertain or exercise jurisdiction over an appeal until permission is given to appeal, or until an order has been made extending the time within which to appeal and, if permission to appeal is required as well, an order granting permission to appeal is made. 1. However, Bleby J (with whom Anderson J agreed) said: [135] Notwithstanding the observations of Dawson and Gaudron JJ in Postiglione v R ; the Victorian Court of Appeal has since confirmed the position taken by that Court in R v McNamara (No 2) . In R v GAM (No 2) the accused was convicted of a number of sexual offences against his step-daughter. He applied for leave to appeal against his convictions and sentence. The application for leave to appeal against the convictions was refused. The application in respect of the sentence was successful. The appeal was allowed and the sentence reduced. The Court's determinations had been perfected. He later applied for an extension of time within which to file a further application for leave to appeal against the convictions on the ground that the complainant had given false evidence at the trial. The Court held that it had no power to reopen either an application for leave to appeal or an appeal which had been determined on the merits, even where fresh evidence was sought to be adduced. 1. Bleby J then set out portions of Winneke P's judgment including what appears at [79] above and concluded: [138] I respectfully agree with those observations. Callaway JA delivered a short concurring judgment and Eames JA agreed with Winneke P. Although not binding on this Court, given the similarity of the legislation, the decisions of the Victorian Court of Appeal in R v McNamara (No 2) and R v GAM (No 2) are highly persuasive and should be followed. There is nothing in any other decisions of this Court which would suggest otherwise. 1. With great respect to Bleby J Spiero, a case to which he later makes reference at [143], does suggest otherwise and was a case Doyle CJ relied upon for his dissent. 2. In Clay v R [2007] NSWCCA 106 the Applicant sought leave to appeal against a sentence imposed for a number of offences. Howie J (with whom McClellan CJ at CL and Hall J agreed) dealt with the grounds of appeal and said: [31] My conclusion that the appeal against sentence has no merit would normally lead to a proposal that leave be granted to appeal but that the appeal should be dismissed: see Bailey v Director of Public Prosecutions (1988) 62 ALJR 319; 34 A Crim R 154. However the Court has been informed that a co-offender of the applicant has recently been sentenced in the District Court. The Court has, therefore, been asked not to dismiss the appeal, if the Court were against the applicant on the arguments placed before it, but merely to refuse leave to appeal in order to permit the applicant to approach the Court if the issue of parity arises between the sentence imposed upon the applicant and that imposed upon the co-offender. That seems to me to be an appropriate course to take in the particular circumstances of this matter otherwise the applicant might be shut out from arguing a case of disparity that has merit. [32] Therefore I propose that the Court refuse the application for leave to appeal. 1. In Eastman v R the applicant applied to re-open the hearing of his appeal which had been determined, and an appeal taken unsuccessfully to the High Court. The basis for the application was that evidence had emerged showing that he was unfit to be tried at the time of his trial. In the course of considering the application the Full Court of the Federal Court discussed the principle from Grierson. They also said: [43] It is interesting that, in Postiglione, Dawson and Gaudron JJ at 304–305 (with Kirby J agreeing at 333) expressed the view that a court of criminal appeal should adopt the practice of refusing leave to appeal against sentence, rather than granting leave and dismissing the appeal, in circumstances in which a co-offender remained to be sentenced. The purpose of such a practice would be to permit a second application for leave, if the offender first sentenced wished to raise the question of disparity between his or her sentence and the sentence of the co-offender. A second application for leave would be possible, because the first appeal would not have been determined on the merits. The proposed practice rests on the assumption that the principle established in Grierson is applicable, namely that an appeal heard and determined on the merits cannot be reopened and a second appeal cannot be maintained. 1. The issue did not need to be further considered for the purpose of the application being made. 2. In R v Upson (No 2) [2013] QCA 149; (2013) 229 A Crim R 275 the applicant appealed against his conviction and applied for leave to appeal against the sentence imposed. The appeal was dismissed and the application for leave to appeal was refused: R v Upson [2011] QCA 196. Fraser JA (with whom Holmes JA and Daubney J agreed) preferred what Davies JA said in R v A to what McMurdo P and Jones J had said (see at [103]-[104] above), and held that an application for leave to appeal was in the same position as an appeal. The result was that if leave to appeal was refused there was no jurisdiction in the court to entertain a further application. As in R v A there was no mention of Postiglione in Upson. 3. The position appears to be, therefore, that despite support from some individual judges in South Australia, Queensland and the Federal Court, jurisdictions other than New South Wales do not allow a second application for leave to appeal even where the order made was that leave was refused, except in circumstances where there has been a dismissal of the leave application through abandonment or some similar basis. Indeed, in Western Australia (although not, it would seem in Queensland – see Davies JA in R v A and Fraser JA in Upson (No.2)) even an application for extension of time is said to fall within the Grierson principle. The failure, however, of some of the judgments in those jurisdictions to refer to Postiglione and examine how it can stand with Grierson diminishes the authority of those decisions. 4. Although Winneke P in G.A.M. was not prepared to accept a distinction between an appeal and an application for leave to appeal where the merits had been determined, that view does not find support from Grierson other than what is contained in the judgment of Dixon J. Nor, with the greatest respect to the Court of Appeal in Victoria, does it have sufficient regard to what Dawson and Gaudron JJ said: That, if an application for leave against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed. 1. Such a distinction could not have been made if Grierson (to which they had referred and accepted its correctness (at p.300)) stood for the proposition that the dismissal of an application for leave to appeal would preclude a further application. It seems likely, therefore, that they accepted that the judges, apart from Dixon J, were speaking only of the dismissal of an appeal and not the refusal of leave to appeal. That is not entirely surprising given that in Grierson all that was being determined was the right of an applicant to appeal a second time, or to seek leave to do so, where the first appeal had been dismissed. 2. There is the further matter of the authority of the High Court's decision in Grierson. What was before it was a special leave application that was refused. In Milat v The Queen [2004] HCA 17; (2004) 78 ALJR 672 McHugh J said at [26], citing Collins v The Queen (1975) 133 CLR 120 at 122, that until special leave is granted the High Court's jurisdiction is not engaged. McHugh J also said in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 643: Refusal of special leave creates no precedent and is binding on no one. An application for special leave is merely an application to commence proceedings in the Court. Only when the Court grants leave does it commence to exercise its appellate jurisdiction. Until that time, there are no parties whose rights can be the subject of a binding determination. 1. Moreover, only Dixon J made any reference to applications for leave to appeal. Whilst McTiernan J agreed with Dixon J he also agreed with Rich J who decided the matter solely on the basis of a prior appeal that had been dismissed. 2. Postiglione is a later decision of the High Court. It was a judgment on a final hearing. Three of the five judges endorsed the principle identified. Although the remarks were obiter, they must be regarded as "seriously considered" dicta of a majority of the Court with the result that they are binding: Farah Constructions Pty Ltd v Say Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [134] and [158]. 3. Bearing in mind that Grierson involved a second application where an appeal had previously been dismissed, it can be seen from the above survey that decisions in New South Wales have consistently made a distinction between an order dismissing an appeal and an order refusing leave to appeal, as Alameddine, Stead and Clay demonstrate. No reason has been shown for departing from that line of authority which has the imprimatur of three of the judges in the High Court in Postiglione. Further, and with due respect to the High Court, no better reason could be given for the view they reached than the injustice which might otherwise result from a disparity of sentencing of co-offenders at different times. The present application 1. The present position as a result of the last successful appeal of Sinkovich is that he received a non-parole period of 7 years and 6 months with a balance of term of 3 years and 6 months in respect of Count 2. That sentence was imposed after a trial and with no discount. On the other hand, for the equivalent count being CAN Sequence 5 the Applicant received a non-parole period of 8 years with an additional term of 4 years taking into account a discount of 25% for an early plea. The notional starting point for the Applicant's sentence on this count was 16 years whereas the co-offender received an overall sentence on this count of 11 years. 2. On the basis of this Court's conclusions on the first appeal by the Applicant at [75] and [76], it must be held that there is a stark disparity in the sentences and one that would give rise to a justifiable sense of grievance on the part of the Applicant. However, on the basis of this Court's conclusions at [93] – [95] on the Applicant's first appeal, the issue to be determined on the present application is whether no less a sentence is warranted on this Count bearing in mind the totality principle by reason of the sentences for the other counts. 3. The conclusion that this Court reached in the first application by the present Applicant was influenced by the fact that in Sinkovich's first application to this Court, this Court dismissed his appeal because the sentences imposed were not manifestly excessive. The effect of Sinkovich (No. 2) is that error infected the sentencing process. That error was conceded by the Crown. The only issue for the Court was whether a lesser sentence was warranted. The Court considered that a lesser sentence was warranted, looking particularly at the non-parole period imposed by the Sentencing Judge. 4. That is a significant matter where the sentence imposed on the present Applicant for the corresponding offence is markedly disparate and gives rise to a justifiable sense of grievance. 5. The Crown argued that the sentences on the present Applicant and Sinkovich had both been imposed by the same judge and that there was much greater criminality overall in the present Applicant to justify the heavier sentences imposed. If followed from that, the Crown argued, that despite the reduction in Sinkovich's sentence, no less a sentence was warranted in the present matter. However, if a lesser sentence were to be imposed for CAN Sequence 5 the same conclusion should be reached as was reached at [93] to [95] of the Court's earlier judgment in Lowe so that the sentences overall would be adjusted to produce the same result. 6. In my opinion, there should be an adjustment for the Applicant's sentence in respect of CAN Sequence 5 because the disparity between his sentence and Sinkovich's sentence is considerable and the reduction by this Court of Sinkovich's sentence provides an indication that a lesser sentence is warranted for the present Applicant. 7. In my opinion, the appropriate sentence for CAN Sequence 5 should be a non-parole period of 7 years with an additional term of 3 years and 6 months to maintain the ratio fixed by the Sentencing Judge. The sentence should commence from 4 July 2010 with the non-parole period expiring on 3 July 2017 and the additional term expiring 3 January 2021. I would not make any adjustment to the other sentences. This will mean that the total effective non-parole period will be 9 years with an additional term of 3 years and 6 months. Conclusion 1. I propose the following orders: (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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2015