Lowe v R [1984] HCA 46 | 2 August 1984

ON 2 AUGUST 1984, the High Court of Australia delivered Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (2 August 1984).


The case sets out the principle of due proportionality to be imposed by Australian courts when sentencing criminal offenders.

Whilst co-offenders do not have to receive the same sentence for the same offence, any discrepancy must not give the sense or appearance of their being an injustice done to the offender with the heavier sentence.

At 623, Dawson J (with whom WIlson J agreed) said:

“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 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 recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”

The principle is an application of the fundamental principle of equality of justice. At 610, Mason J observed:

“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. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”

The parity principle only applies to co-offenders: per Gibbs CJ at 609, Mason J at 611 and Brennan J at 617-618.

Disparity may be an indicator of appelable error: per Brennan J at 617-618.

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