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Criminal Law - Crown Appeal Against Sentence

Date: January 22, 2009

Authors: LAC Lawyers

When an accused person (“A”) has been convicted or has pleaded guilty to an offence A will be sentenced by the Court. If the Crown is of the view that the sentence A received was manifestly inadequate, then the Crown can appeal against the original sentence.
 
In Victoria, if A was sentenced in the Magistrates’ Court then the Director of Public Prosecutions (“DPP”) can lodge a Notice of Appeal to the County Court. The appeal will be heard on a de novo (“afresh”) basis before a Judge. If A was sentenced in the County Court then the Crown can lodge a Notice of Appeal in the Court of Appeal (Supreme Court). However, the appeal will be subjected to different principles and will not be heard afresh. Further, the appeal will be heard by three Judges from the Court of Appeal (although there are suggestions that the Court will pilot a trial where only two Judges are required).
 
The law states that Directors appeals against sentence should be brought only “in the rare and exceptional case”[1]. However, in recent years the Directors (both in Victoria and the Commonwealth) have paid little attention to that principle. One possible explanation relates to public pressure and the fact that the Director does not need to seek leave to appeal against sentence unless the appeal is from the Court of Appeal to the High Court of Australia.
 
Other principles that apply to Crown Appeals are:
  • The Crown must state and demonstrate error by the primary Judge[2];
  • Even where error is shown, the Court will also consider the so-called principle of double jeopardy;
  • If A has been at large and the Court wants to substitute it with an immediate term of imprisonment, then A is entitled to an additional reduction;[3] and
  • Even where manifest inadequacy is present, the Court still has an overriding discretion not to interfere with the original sentence.
On the surface one may think that it is difficult for the Crown to succeed on its application. However, a quick perusal of the results of the Crown appeals in Victoria in 2008 will show that that is no longer the case. 

So if you are unfortunate to be classified as a Respondent in a Crown Appeal, then there are good reasons to engage lawyers who can advance persuasive arguments on your behalf. More importantly, you need lawyers who are prepared to fight for your freedom. If you win, the Court will give you a costs certificate. However, if the appeal is from the Commonwealth DPP, then you will be further disadvantaged as even if the appeal is dismissed, you will not get a costs certificate.

[1] Everett v. R (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ @ 299
[2] Dinsdale v. R (2000) 202 CLR 321 per Kirby J @ 339
[3] One should note that by this time A is known as an offender.
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