The law relating to sentencing can present some of the most difficult challenges faced by lawyers and judges. Sentencing law is complex and changes regularly, which can make the interpretation and application of the many sentencing statutes and resulting case law difficult.

As a result, sentences handed down by judges may be wrong in law, wrong in principle, or otherwise simply too long.

GROUNDS FOR AN APPEAL AGAINST SENTENCE INCLUDE:

• Sentence not correct in law: Given the complexity of our sentencing laws, judges and lawyers can make mistakes that result in sentences that are wrong in law.

• Manifestly excessive sentences: This is a principal ground for appealing a sentence. If a sentence appears, on the face of it, to be too severe or excessive, it may be worth reviewing whether it can be argued to be ‘manifestly excessive’.

• Sentence wrong in principle: A sentence may be wrong in principle if the sentence imposed was one that, in the circumstances of the case, 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, wrong to extend a sentence, or wrong to impose an ancillary order such as a restraining order.

• Sentence imposed on an incorrect factual basis: Where there is a dispute about the facts of a case, such disputes can be resolved by the judge hearing evidence in order to determine the basis upon which a sentence should be imposed. Where the judge fails to do this or fails to make clear which version of the disputed events they accept, it may be possible to appeal against the sentence imposed in order for the defendant to be re-sentenced on the factual basis they put forward.

• Matters improperly taken into account: The judge will sentence on the basis of the material put before the court. If that information was wrong or misleading, an appeal against sentence may be possible.

• Procedural errors: Judges are encouraged to obtain sufficient information about an offender and their background before passing sentence. This may be achieved by requesting a pre-sentence or medical report. If the judge fails to do this, and it can be argued that the case should have been adjourned to obtain such a report, it may be possible to lodge an appeal.

• The judge’s failure to honour a legitimate expectation: Judges sometimes give an indication that a certain sentence will be passed, or that a particular sentence will not be passed. If this occurs, it may be reasonable for a defendant to expect the judge to honour that indication. 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 where a co-defendant received a different sentence and, on the face of it, there was no justification for the disparity.