Principles Governing Applications for Leave to Appeal against Sentence

By Anthony Cook

Public Defender

8 September 2005

The relevant power which an application for leave to appeal against sentence seeks to invoke is that contained within s6(3) of the Criminal Appeal Act. The relevant approach has been discussed in many cases. For example, in R v Simpson (2001) 53 NSWLR 705 Spigelman CJ observed;

'Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'if it is of the opinion that error has occurred in the sentencing process'.  That is not the statutory formulation. By s6(3) this Court must form a positive opinion that 'some other sentence...is warranted in law and should have been passed.'  Unless such opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefore is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense'.

The approach was described perhaps somewhat differently in the recent case of R v Oliver (2005) NSWCCA 6 where was stated by Kirby J (Sully J agreeing) in the following terms:

'Should the Court intervene? Where an error is shown, and where it can be inferred that the sentencing judge would have given a lesser sentence, but for the error, or in error one would expect this Court to intervene unless to do so would reduce this sentence to a level, which was less than adequate. I have come to the view that the Court should intervene. I accept that, but for the error, his Honour would have imposed a lesser sentence along the lines suggested by the applicant and that such a sentence would have been within the range of sound sentencing discretion and therefore unlikely to have attracted a successful Crown appeal in these circumstances I belief it is just for the Court to intervene and re-sentence the applicant in terms which correct the demonstrated error'. (Par s.34-37).

The approach in Oliver suggests that the Court of Criminal Appeal would assess the notional worth attributable to the error (where that is possible) and then assessed with a result in sentence, with the appropriate deduction to correct the error having been made, could be described as 'inadequate'(See also R v Price [2005] NSWCCA 285)

It may be said that the approach outlined in Oliver is simply a different way of describing the formulation of the statutory test as discussed in Simpson. Of course the correction of patent error is not the sole function of the Court of Criminal Appeal on a sentence appeal. If a sentence can be shown to be 'manifestly excessive' then, in the absence of any specific error, it will be shown that some other sentence is warranted in law and should have been passed.