Published by Geoff Harrison | 8 December 2024
Following a sentence handed down in the District Court, an offender can appeal the severity of the sentence with leave of the Court of Criminal Appeal as per s5(1)(c) of the Criminal Appeal Act 1912 ('the Act'). A notice of intention to appeal must be filed within 28 days of the conviction or sentence: s10(1)(a) of the Act. After the filing of a notice of intention to appeal, the applicant has 12 months to file a notice of appeal.
The principles applying to the determination of whether a sentence is manifestly excessive were set out by R A Hulme J in Obeid v R [2017] NSWCCA 221, at [443]:
When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:
Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
It is not to the point that this Court might have exercised the sentencing discretion differently.
There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
Or put another way, the applicant must establish that the sentencing judge made an error in the exercise of their discretion: House v The King (1936) 55 CLR 499 at 505. In Markarian v The Queen (2005) 228 CLR 357 at [25], Gleeson CJ, Gummow and Callinan JJ said:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King … itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
Other Sources:
Cases:
Extracted Legislation:
CRIMINAL APPEAL ACT 1912 - SECT 5
Right of appeal in criminal cases
(1) A person convicted on indictment may appeal under this Act to the court--
(a) against the person's conviction on any ground which involves a question of law alone, and
(b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person's conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and
(c) with the leave of the court against the sentence passed on the person's conviction.
(2) For the purposes of this Act, a person for whom a special verdict of act proven but not criminally responsible is entered is, if the defence of mental health impairment or cognitive impairment was not set up as a defence by the person, taken to be a person convicted and an order to keep the person in custody is taken to be a sentence.
CRIMINAL APPEAL ACT 1912 - SECT 6
Determination of appeals in ordinary cases
(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
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