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[1984] HCA 46
respondent. Application for special leave to appeal refused.
Two teenagers robbed a service station. One received a six-year prison sentence, the other got probation and community work. The appeal court shortened the first man's parole wait from two years to one but left the prison term unchanged. The High Court majority decided this was close enough to fair and refused to hear a further appeal, saying that while big gaps in sentences for partners in crime should be fixed to stop a person feeling unfairly treated, the appeal judges had already acted within their powers and had not made a legal mistake serious enough to justify the High Court stepping in.
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2,534 words · generated 24/04/2026
In the early hours of 26 January 1983 Jonathan Patrick Lowe and David John Smith, both aged eighteen and without prior criminal records, robbed a service station at Burpengary north of Brisbane. They stole $404.83 from the cash register. Smith remained outside keeping watch while Lowe entered the premises armed only with the handle of a paint spray gun which he presented so as to appear to be a firearm. The proceeds were spent on rent, groceries and petrol; no restitution was made. Both men pleaded guilty to armed robbery, an offence carrying a maximum of life imprisonment with hard labour under s. 411 of the Criminal Code (Qld).
No linked legislation citations have been extracted yet.
Crucially, the offenders were sentenced by different judges on different dates. On 21 September 1983 Kelly J sentenced Lowe to imprisonment with hard labour for six years and recommended that he be eligible for parole after serving two years. On 11 November 1983 Thomas J, having been informed of the earlier sentence, sentenced Smith to three years' probation with a requirement to perform 200 hours of community service. Lowe appealed against the severity of his sentence. The Attorney-General appealed against the asserted inadequacy of Smith's sentence. The Court of Criminal Appeal heard both matters together. It concluded that Lowe had been the prime mover, that both original sentences were within range when viewed separately, yet that the disparity was sufficient to engender a real sense of grievance. The Court therefore varied Lowe's sentence by reducing the recommended non-parole period from two years to one year but left the six-year head sentence untouched. The Attorney-General's appeal against Smith's sentence was dismissed.
Lowe then sought special leave to appeal to the High Court. He argued that the Court of Criminal Appeal had erred in principle by failing to reduce the head sentence as well as the non-parole period, thereby leaving a still-glaring discrepancy between six years' imprisonment and a wholly non-custodial outcome. The Full Court (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) delivered separate written judgments. By majority (Gibbs CJ, Wilson and Dawson JJ, with Brennan and Mason JJ dissenting) the application for special leave was refused. The order of the Court was simply "Application for special leave to appeal refused".
The majority rested its decision on the narrow appellate filter that governs special leave in sentencing matters. Gibbs CJ repeated the long-standing rule that the Court "will not grant special leave to appeal simply because a sentence appears to it to be excessive". Special leave requires either a question of law or principle of general importance or a "gross violation of the principles which ought to govern discretion in imposing sentence". The majority accepted that a marked disparity existed and that the Court of Criminal Appeal had correctly identified it and had intervened. That Court had expressly recognised the risk of a justifiable sense of grievance and had adjusted the non-parole recommendation accordingly. The majority held that this response lay within the discretion conferred by s. 668E of the Criminal Code (Qld) and did not disclose error of law or principle.
Dawson J emphasised the limited role of the High Court in sentencing appeals, citing Colefax v The Queen, Neal v The Queen and Veen v The Queen. He noted that sentencing is a discretionary exercise in which Courts of Criminal Appeal possess local knowledge and that the High Court should not intervene merely to recalibrate an individual sentence. Wilson J simply agreed with Gibbs CJ and Dawson J. All three majority judges accepted that the six-year head sentence, although heavy, was not so disproportionate to the one-year non-parole period as to bespeak error once the adjustment was understood as an attempt to moderate disparity rather than as a fresh sentencing exercise conducted in isolation.
The majority further held that the relationship between head sentence and non-parole period is itself a matter of wide discretion. Drawing on Power v The Queen (1974) 131 CLR 623 they reiterated that the non-parole period is the minimum time justice requires the prisoner to serve having regard to all circumstances of the offence. A reduction of the non-parole recommendation from two years to one year did mitigate the severity of the punishment even though the head sentence remained six years. The majority was not prepared to say that the resulting ratio was so unreasonable as to constitute a gross violation of principle.
The dissenting judgments of Mason and Brennan JJ illustrate the closeness of the case. Mason J regarded the disparity as "exceptionally glaring" and would have held that marked disparity is itself a ground for intervention rather than merely evidence of error. Brennan J accepted that the Court of Criminal Appeal had been entitled to intervene on disparity grounds but considered that once it had fixed a one-year minimum as appropriate it was inconsistent to leave a six-year head sentence intact. Both dissenters would have substituted a two-year head sentence with a one-year non-parole period. The majority, however, viewed the Court of Criminal Appeal's choice as a permissible discretionary calibration rather than legal error warranting the exceptional grant of special leave.
Before Lowe the authorities on parity were acknowledged to speak with "complete uniformity". English decisions such as Reg v Stroud (1977) 65 Cr App R 150 had required a "glaring difference" before intervention, while Australian state courts showed slight variations. In New South Wales, Street CJ in Reg v Tisalandis [1982] 2 NSWLR 430 had treated disparity as indicative of error rather than an independent ground, whereas Moffitt P had doubted whether a proper sentence could ever be reduced to an improper one. Victorian authority in Pecora v The Queen [1980] VR 499 spoke of manifest rather than merely arguable excess in the difference. Queensland courts had applied the broad statutory power in s. 668E to substitute any sentence "warranted in law".
Lowe did not revolutionise the law but clarified and reinforced the "justifiable sense of grievance" test as the touchstone. Gibbs CJ frankly acknowledged that when a court reduces an otherwise lawful sentence the real reason is the appearance that justice has not been done. The majority accepted that intervention on disparity grounds is discretionary and does not require the appellate court to adopt the lesser sentence as an immutable norm. The decision also underlined the continuing strictness of the special-leave filter in sentencing matters: even a "heavy" sentence and an acknowledged disparity did not meet the threshold absent gross violation or a question of general importance.
Subsequent references in the judgments to Power v The Queen and the newly delivered Deakin v The Queen (1984) 58 ALJR 367 confirmed that the non-parole period is not a mere mechanical fraction of the head sentence but a judicial assessment of the minimum period justice requires. After Lowe it remained clear that parity is not a rigid rule of equal sentences but a principle of even-handedness tempered by differences in role, antecedents and the practical constraints of appellate review where no Crown appeal lies against the lenient sentence.
Gibbs CJ (key passage on parity): "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal... the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."
Plain-English translation: Co-offenders should usually get similar punishment, but differences in background or role matter. If the gap is so big that one person would legitimately feel they have been treated unfairly, an appeal court can reduce the heavier sentence even if it was not excessive on its own. The real reason is to stop justice looking unfair to an ordinary observer.
Mason J (on equal justice): "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice."
Plain-English translation: Treating like cases alike is essential to public trust. When two people who did almost the same thing receive dramatically different punishments it looks like the system is unfair, and that damages confidence in the courts.
Brennan J (on non-parole relationship): "Given that the circumstances of Lowe's offence make one year an appropriate minimum period to be served in custody, six years seems to be an excessive maximum period. There must be such a relationship between the head sentence and the non-parole period that it is appropriate for either period or for any intermediate period to be served in custody."
Plain-English translation: If the judge says the offender need only serve one year before becoming eligible for parole, it does not make sense to say the total crime deserves six years behind bars. The two numbers must fit together sensibly; otherwise the sentence is internally inconsistent.
Dawson J (on special leave): "Where the appeal for which leave is sought is against sentence, special leave will be granted only where there has been an error of law or a gross violation of the principles of sentencing. Moreover, the point involved must be one of general application."
Plain-English translation: The High Court does not exist to fine-tune every prison sentence. It will only hear a sentencing appeal in exceptional cases that raise a broad legal question or involve a really serious mistake about how sentencing discretion should be exercised.
Lowe is triggered when two or more offenders participate in the same offence, are sentenced separately, and receive markedly different punishments. The paradigm case is a joint enterprise (here an armed robbery with roughly equal participation) followed by disparate outcomes before different judges. The precedent applies whenever an appellate court is asked to decide whether the heavier sentence should be reduced even though, viewed in isolation, it is within the available range. It is engaged when the lighter sentence is non-custodial or materially lower and cannot be increased because the Crown has not appealed or the time for appeal has expired.
The principle extends beyond identical roles: the judgments note that differences in age, background, criminal history, degree of participation and personal circumstances must be weighed. The precedent is not engaged by modest or explainable differences; it requires a disparity that is "manifest", "glaring" or likely to produce a "justifiable sense of grievance". It is also engaged when an appellate court has already varied the non-parole component but left the head sentence untouched, raising the question whether that response sufficiently removes the grievance or leaves an incoherent relationship between head sentence and minimum term.
Because the High Court refused special leave, Lowe simultaneously affirms the breadth of the Court of Criminal Appeal's discretion under provisions such as s. 668E while insisting that the High Court will intervene only in cases of general importance or gross error. Fact patterns that do not threaten public confidence in even-handed justice or do not raise a novel point of principle will not cross the special-leave threshold.
The judgments themselves demonstrate how the Court treated earlier authority. Gibbs CJ, Wilson and Dawson JJ treated Veen, Neal, White and Colefax as settling the narrow gateway for special leave; they "followed" those decisions in refusing leave. All members "cited" Power v The Queen and applied its characterisation of the non-parole period as the minimum term justice requires the prisoner to serve. The majority "distinguished" the more interventionist English line in Stroud by noting that Australian courts have shown somewhat greater readiness to adjust sentences for parity.
Mason J, while dissenting on the outcome, "applied" the policy statements in earlier cases about equal justice and sought to "declare unequivocally" that marked disparity is itself a ground. Brennan J "followed" Power and Deakin on the non-parole principle and "cited" Tisalandis, Pecora and Lovelock to clarify that disparity sharpens appellate scrutiny but does not automatically require the lesser sentence to become the ceiling. The Court as a whole "distinguished" the view that an appellate court must always produce two wrong sentences; it preferred the flexible discretionary approach evident in the Queensland statutory language.
The separate reasons illustrate that Lowe did not overrule any prior decision but synthesised competing strands. The majority preferred the formulation that disparity justifies intervention when it produces a justifiable sense of grievance rather than treating disparity as mere evidence of hidden error. Later passages in the judgments show the Court treating Reg v Goldberg, Reg v Tiddy, Reg v Kite and Reg v Ciccone as consistent with the grievance test ultimately adopted.
The judgments leave several practical questions unresolved. First, how is a court to quantify the "justifiable sense of grievance"? The majority accepted that the test is impressionistic and lies "very much within the discretion" of the Court of Criminal Appeal, but gave no metric for when a six-year sentence and a non-custodial sentence cross the line from regrettable to manifestly unjust.
Second, the precise limits of appellate power to reduce an otherwise appropriate sentence to a level that "might be regarded as inadequate" remain open. Mason J would have permitted such a reduction; the majority did not need to decide the outer boundary. Brennan J accepted that the Court of Criminal Appeal had intervened on disparity grounds alone yet still found error in the resulting head-sentence/non-parole relationship. The tension between parity and the principle that a court should not impose a sentence it regards as wrong is therefore only partly resolved.
Third, the judgments note the practical difficulty caused by separate sentencing but do not prescribe a rule of law requiring co-offenders to be dealt with by the same judge. The desirability of unified sentencing is acknowledged, yet the Court left open what remedy, if any, exists when that does not occur and one judge is not fully apprised of the earlier sentence.
Fourth, the interaction between parity and the statutory parole regime is not fully mapped. The majority accepted that shortening the non-parole period mitigates severity even if the head sentence is left untouched, yet Brennan J demonstrated that the two figures must remain coherent. How a court should reconcile those propositions when the non-parole period is reduced solely for parity reasons is left for future cases.
Finally, the High Court's own special-leave jurisprudence is reinforced but not redefined. The majority repeated that excessiveness alone is insufficient, yet Mason J warned against overly rigid categories that might exclude cases of "manifest public importance". The borderline between a "heavy" sentence that excites sympathy and a sentence that reveals a gross violation of principle therefore remains case-specific and somewhat elusive. These open questions ensure that Lowe continues to generate argument in appellate sentencing lists whenever co-offenders receive markedly different outcomes.
The applicant, together with another young man, carried out the armed robbery of a service station in the early hours of the morning and stole a sum of $404.83. The applicant's co-offender, whose name was Smith, kept watch whilst the applicant held up the service station attendant with a spray gun which he used in such a way as to make it appear that it was a fire-arm. Apart from the difference in the degree of participation of the two offenders, there were differences in the personal position of each of them but it is unnecessary to examine that in any detail.
On 21 September 1983, the applicant pleaded guilty to a charge of armed robbery before Kelly J. and was sentenced to imprisonment with hard labour for a period of six years with a recommendation that he be eligible for release upon parole after serving two years of that sentence.
On 9 November 1983, Smith pleaded guilty to the same charge before Thomas J. and, on 11 November 1983, he was admitted to probation for three years and was ordered to perform 200 hours of community service.
No explanation was given to us or, apparently, to the Court of Criminal Appeal of the reason why the applicant and Smith entered their pleas before different judges at different times. The result was that, although they were co-offenders, they fell to be sentenced by different judges. Such a situation always carries with it a risk that there will be an unwarranted disparity between the sentences imposed and is to be avoided if at all possible. If it cannot be avoided, then at least the judge imposing the later sentence should inform himself of the sentence already imposed and the circumstances in which it was imposed. I hasten to say that Thomas J. was so informed in this case.
The applicant appealed to the Court of Criminal Appeal against the severity of the sentence imposed upon him and the Attorney-General appealed to the same Court against the inadequacy of the sentence imposed upon Smith. The Court of Criminal Appeal heard both appeals together. It expressed the view that upon the material placed before both sentencing judges the applicant was the prime mover in the commission of the offence. It concluded that neither Kelly J. nor Thomas J. erred in imposing the sentences which they did. In reaching this conclusion clearly the Court put to one side any question of disparity between the sentences because it later expressed the view that the disparity was sufficient to engender a real sense of grievance. It was this view which led the Court of Criminal Appeal to allow the applicant's appeal and to vary his sentence by recommending that he be eligible for parole after serving twelve months of his sentence. No alteration was made to the length of the term of imprisonment to which the applicant was sentenced by Kelly J. The Attorney-General's appeal against Smith's sentence was dismissed and there is no application before this Court in relation to that result.
There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been don: see Reg. v. Goldberg [41] ; Pecora v. The Queen [42] ; Reg. v. Tiddy [43] ; Reg. v. Kite [44] ; Reg. v. Ciccone [45] ; Reg. v. Tisalandis [46] ; Stroud [47] ; Reg. v. Potter [48] ; see also Reg. v. Rameka [49] ; cf. Reg. v. Ruane [50] . This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences separately imposed upon co-offenders even where the sentence varied was not in itself excessive. The cases suggest that there has been a greater reluctance in England than here to vary the longer sentence in such a situation. There is always the dilemma that in order to eliminate the disparity the Court may have to reduce a sentence which it regards as proper in itself because of an inadequate sentence imposed upon a co-offender. To do so, it has been observed, is to compound the error. The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are "most exceptional": see Stroud [51] ; Potter [52] . The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora [53] ; Tisalandis [54] .
Whether this Court would or would not have taken the same course as the Court of Criminal Appeal is not material in an application for special leave to appeal. The significant thing is that the course taken did not involve the application of any rule of law and insofar as it involved the exercise of a discretion there was no violation of the relevant principles. In the end, the question before the Court of Criminal Appeal was whether the sentence imposed upon the applicant was excessive having regard to the lesser, albeit later, sentence imposed upon Smith. The Court of Criminal Appeal properly addressed that question and the result is not something which attracts special leave to appeal.
It was also argued that the manner in which the Court of Criminal Appeal sought to reduce the disparity between the two sentences raises a question of sufficient general importance to require consideration by this Court. The argument, as I understand it, was that the Court did not succeed in reducing the disparity because the reduction in the non-parole period, which is all that was ordered, does not mean that the applicant may not have to serve the full term of his imprisonment if he is not released on parole or if, having been released, he fails to observe the terms of his parole. Moreover, it was submitted, a non-parole period of one year in a sentence of six years' imprisonment represents an imbalance between the non-parole period and the full term.
In Power [55] consideration was given to the nature of a non-parole period in relation to the full term of a sentence. It was pointed out that whilst the full term represents the period of imprisonment which the sentencing judge considers the offence warrants, there may be a point during that period when it is appropriate to release the prisoner on parole having regard to his prospects of rehabilitation. That point is not determined by the sentencing judge but will ultimately be determined by the Parole Board. What is determined by the sentencing judge is the minimum period during which, in the interests of justice, the prisoner should not be released at all having regard to the offence which he committed.
The relevant legislation in Queensland is the Offenders Probation and Parole Act 1980 and under s. 52(3) of that Act the sentencing judge may recommend that a person sentenced to a term or imprisonment be eligible for release upon parole after a specified date during the term. It is that date which fixes the non-parole period, subject to the operation of other sections of the Act which permit an earlier release in certain circumstances. The non-parole period is, as it is in other States, that period during which, in the opinion of the sentencing judge, justice requires the prisoner to be kept in prison and not be released, even upon parole. But the sooner a prisoner is eligible for parole, the less severe will his punishment be even though he is not guaranteed his release after serving the minimum period and even though his release is conditional only until the expiration of the full term. As was pointed out recently in Deakin v. The Queen [56] :
The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: see Power v. The Queen [57] . 1. (1984) 58 A.L.J.R. 367; A.L.R. 765, at p. 766. 2. (1974) 131 C.L.R., at p. 629.
Having regard to the purpose to be served by the fixing of a non-parole period, it is obvious that it should not be made disproportionate to the full term. It nevertheless remains very much a matter within the discretion of the sentencing judge and may be contrasted with the error involved in a failure to fix any minimum term at all when the legislation requires it: cf. Deakin . Whilst the order of the Court of Criminal Appeal reduces the minimum term to be served by the applicant to a period which is shorter than would ordinarily be appropriate having regard to the full term, it does have the effect, as we have explained, of reducing the severity of his sentence. Any disproportion may perhaps be explained by the fact that the variation of the applicant's sentence was to diminish the disparity between that sentence and Smith's sentence rather than to correct the sentence because it was otherwise inappropriate. Even if that is not a sufficient explanation, the exercise was a discretionary one and no gross violation of principle was involved.
I would grant the extension of time and refuse special leave to appeal.
Lowe
The Queen
High Court of Australia Gibbs C.J. Mason, Wilson, Brennan and Dawson JJ. Lowe v The Queen [1984] HCA 46
Application for special leave to appeal refused.