When sentencing, a judge is generally guided by the sentencing guidelines set out in law, along with precedents (previous sentences handed out in similar cases).
However, they will also be influenced by a number of other factors which are specific to each individual case. These include:
- Whether or not you pleaded guilty or you were convicted after a trial
- If you pleaded guilty, at what stage you entered that plea. (At an early stage such as a plea and directions hearing or at a later stage such as the first day of your trial)
- The content of a pre-sentence report by the Probation Service
- Your antecedents (criminal history), especially if the convictions were for the same type of offence
Grounds to appeal a sentence
There are many grounds upon which an appeal is lodged against sentence. Here is a summary of some of the more common grounds.
Sentence not justified by law
The Court of Appeal will intervene when a sentence is passed which could not legally be passed. With the number of complex statutes we have nowadays dealing with sentence; mistakes are often made by Crown Court Judges and have to be corrected.
Sentence incorrect on a factual basis
Newton hearings are very important in establishing the correct facts upon which to pass sentence. Where no determination of disputed facts takes place, and the sentencing judge does not make it clear which version of events he accepts, the Court of Appeal will proceed on the defendant’s account.
Judges remarks when sentencing
The Court of Appeal may allow an appeal where it forms the view that the sentencing judge has taken into account irrelevant factors when deciding the appropriate sentence. Examples of this include where the judge indicates that he increased sentence because the defendant chose to plead not guilty, or because he chose to elect Crown Court trial. Irrelevant factors such as these might result in a reduction in sentence.
Matters improperly taken in to account
Errors of fact or reliance on inadmissible evidence may justify an appeal being lodged. Similarly, the Court of Appeal can admit new evidence/fact relevant to the issue of sentence such as new expert evidence or prison governor’s reports on good progress in prison.
Where a sentencing judge passes sentence without the assistance of a pre-sentence report where it was appropriate to have done so, an appeal ought to be lodged. Incorrect details about a defendant’s previous antecedent history may also result in a successful appeal.
Failure to honour a legitimate expectation
A legitimate expectation can be created either by expressing it in words or by conduct, for example, the adjournment of a case for reports in circumstances which creates a legitimate expectation of a non-custodial sentence. Moreover, indications on sentence given by one judge are binding on another judge in the event that a different judge passes sentence; assuming of course no change in circumstances. The exact wording of the judge is of crucial importance in cases of this type.
Disparity of sentence
An appeal can be lodged where a co-defendant receives a different sentence. This does not form an individual head of appeal, and the argument will need to focus on the issue of the appellant’s sentence having been wrong in principle or manifestly excessive (see below). The test here appears to be …’would right thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice?’ (Fawcett (1983) 5 Cr App R (S) 158).
Similarly, a failure to distinguish between defendants when one has more powerful mitigation than the other is capable of mounting a sentence appeal.
Sentence wrong in principle or manifestly excessive
A sentence will be generally regarded as being wrong in principle if the sentence was one which could be seen as not being in the appropriate form, for example the defendant was not eligible for a prison sentence.
The most common ground advanced by way of appeal against sentence is the argument that a sentence is ‘manifestly excessive’. The fact that a sentence is merely severe will not ordinarily be sufficient. An appeal is only likely to be successful if the sentence passed is one considered to be outside the range for the offence and the offender. To assist judges, sentencing guidelines are issued to determine the appropriate sentence, and any departure from those guidelines ought to be appealed.
Mentally disordered and young persons
Generally speaking, it is wrong to sentence a mentally disordered person to prison, or to a punitive, as opposed to a therapeutic sentence. In sentencing juveniles, regard should be had of the welfare principle.
The time limit of 28 days in which to lodge an appeal can be extended in the interests of justice. Where a different solicitor advises on the merits of an appeal, the 28 day limit is very often extended without difficulty.
There is no simple method of deciding whether or not you have grounds to appeal your sentence, and it will require an examination of the circumstances of your case in order to know this.
If you need assistance in lodging an appeal contact our specialist solicitors on 01616 966 229 or complete our online enquiry form.