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July 29, 2013

Sentence Appeals

by dankrogers

For criminal defence firms, applications for leave to appeal against a sentence imposed is an important part of ensuring a just outcome on behalf of clients. Judges exercise broad judicial discretion when sentencing a person and in doing so, have to balance an often very large number of competing considerations. Because of this, it is expected that errors will sometimes be made and it is therefore incumbent upon lawyers to look carefully at whether or not a sentence is affected by error or simply manifestly excessive.

Generally to succeed in an application for leave to appeal against sentence an applicant must demonstrate that a sentence imposed was beyond the permissible range, not that it was severe, or that it was a lesser punishment than would have been appropriate, or even more appropriate than the one in fact imposed. Judges have consistently held that there is no one right penalty in any case and there is always a range of permissible sentences. It is true that different Judges legitimately put weight on different circumstances and their opinions are typically respected by appellate judges unless the sentence imposed is beyond the allowable range or is otherwise affected by an error of fact or law.

Typically, it is necessary to demonstrate to an appellate court, with reference to useful and recent authoritative comparative sentences that a sentence was outside the applicable range.

In R v Lacey (a case decided in the High Court of Australia) the High Court held that where it is demonstrated that a sentence is manifestly excessive or tainted by error the Court has the power to resentence the person and put themselves in the position of the original Sentencing Judge. This can be a motivating factor for the person unhappy with the sentence imposed upon them.

With all appeals, a Notice of Appeal must be lodged within 28 days of the sentence being passed. For an appeal lodged outside of this time, it can be quite difficult to apply for an extension of time for which to have leave to appeal.

As the secretary of Caxton Legal Centre, a not for profit community organisation, I oversee a criminal appeals clinic where we represent inmates wishing to appeal their sentence who are unable to afford private representation and who can not get a legal aid grant. Heather Douglas from the Univeristy of Queensland has been instrumental in developing the program. Together with her and a group of bright law students, we prepare, on a pro-bono basis, an outline of argument for the Court of Appeal. It is a great program contributing to a person’s right to appellate representation.

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