17 |
Crown Appeals Against Sentence |
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| 17.1 |
The prosecutor must assess any sentence imposed. If (and only if) it is considered to
be appellable or it is a matter likely to attract significant public interest, a report should be
provided promptly to the Director’s Chambers for determination as to whether or not an appeal
will be instituted. |
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| 17.2 |
The report should include the transcript and sentencing remarks (if available), any
medical or pre-sentence reports, the criminal history, victim impact statement and a copy of any
decisions relied upon. |
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| 17.3 |
The Director may appeal against the inadequacy of a sentence which has been imposed.
There are no time limits but, in practice, the Office commences appeals expeditiously, preferably
within 28 days of sentence. |
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| 17.4 |
In determining whether or not to appeal against a sentence imposed by a judge or
magistrate, the Director will have regard to the following matters: |
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(1) |
whether or not the sentencer made a material error of law or fact, misunderstood or misapplied proper
sentencing principles, or wrongly assessed or omitted to consider some salient feature of the evidence,
apparent from the remarks on sentence; |
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(2) |
manifest inadequacy of the sentence which may imply an error of principle by the sentencer; |
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(3) |
the range of sentences (having regard to comparable cases) legitimately open to the sentencer on the
facts. Mere disagreement with the sentence imposed is insufficient; |
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(4) |
the conduct of the proceedings at first instance, including the prosecutor's opportunity to be heard
and the conduct of its case; |
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(5) |
the element of double jeopardy involved in a prosecution/Crown appeal and its likely effect on the
outcome (the probable imposition of a lesser sentence than was appropriate at first instance); |
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(6) |
the appeal court's residual discretion not to intervene, even if the sentence is considered too
lenient; and |
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(7) |
whether the appeal is considered likely to succeed. |
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| 17.5 |
Prosecutors should be aware that: |
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(1) |
prosecution/Crown appeals are rare. They should be brought to enable the courts to establish and
maintain adequate standards of punishment for crime, to enable idiosyncratic decisions to be corrected
and to correct sentences that are so disproportionate to the seriousness of the crime as to lead to a
loss of confidence in the administration of criminal justice; |
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(2) |
the appellate court will take into account the advantages enjoyed by the sentencer which are denied
to it; |
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(3) |
the appellate court will not be concerned whether or not it would have found the facts differently,
but will consider whether or not it was open to the sentencer to find the facts as he or she did; |
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(4) |
apparent leniency or inadequacy alone may not be enough to justify appellate correction; and |
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(5) |
scope must remain for the exercise of mercy by the primary sentencers. |
