Appealing against sentence
The law relating to sentencing can be one the most difficult challenges faced by Lawyers and Judges. The law is complex and changes regularly. This makes the interpretation of the many sentencing statutes and resulting case law often difficult to apply. It means that sentences that are handed down by judges are often simply wrong in law, wrong in principle or otherwise just too long.
Grounds for an APPEAL AGAINST SENTENCE include:
- Sentence not correct in law – Given how complex our sentencing laws are, Judges and lawyers can make mistakes and pass sentences that are wrong in law.
- Manifestly excessive’ sentences – This is the main ground for appealing a sentence. If a sentence is on the face of it severe and excessive in the circumstances, it is worth reviewing to see whether it can be argues to be ‘manifestly excessive.’
- Sentence wrong in principle – A sentence can be considered to be wrong in principle if the sentence imposed was one that in the circumstances of the case it could be argued should not have been imposed. For example, it may be that the Judge was wrong to impose a prison sentence instead of a community sentence, or that the Judge was wrong to extend a sentence, or even wrong to impose an ancillary order such as a restraining order.
- Sentence incorrect on a factual basis – Where there is a dispute on the facts of a case, such disputes can be resolved by the Judge hearing evidence in order to decide on what basis a sentence should be imposed. Where the Judge fails to do this, and the Judge fails to make it clear which version of disputed events he accepts, it is possible to appeal against the sentence imposed in order for the defendant to be sentenced on the facts he or she put forward.
- Matters improperly taken in to account – The Judge will sentence on the available material before him. If that information was wrong or misleading then an appeal against sentence may be possible.
- Procedural errors – Judges are encouraged to find out as much about an offender and his or her background before passing sentence. This is best achieved by requesting a pre-sentence or medical report. If the Judge fails to do this, and it can be argued that the Judge should have adjourned the case to obtain a report then it may be possible to lodger an appeal.
- The Judge’s failure to honour a legitimate expectation – Judge’s sometimes give an indication that a certain sentence will be passed, or that a certain sentence will not be passed. If this occurs, it is not unreasonable for a defendant to expect a Judge to honour such an expectation. If the Judge fails to do so, it may be possible to lodge an appeal.
- Disparity of sentence – It may be possible to lodge an appeal if a co-defendant received a different sentence where there was on the face of no justification for doing so.