This is the question every criminal appellant should be asked before an appeal against sentence is filed, and the answer is uncomfortable.
The words
On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.
Where the Court forms the opinion that a more severe sentence was warranted and should have been passed, substituting it is not discretionary. The section leaves no room for the Court to conclude that the sentence was too light and yet leave it alone.
An appellant appealing a sentence therefore puts the whole sentence in issue, not just the part they complain about.
Section 24(2)
The Public Prosecutor may appeal to the Supreme Court against any decision of the National Court, whether on appeal or sitting as a court of first instance, as to sentence, and the Supreme Court may in its discretion vary the sentence and impose such sentence as it thinks proper.
No leave is required, and “sentence” includes any order made on conviction with reference to the person convicted or his property. See prosecution appeals.
Where the Act limits the power
The Supreme Court shall not increase a sentence in a criminal proceeding by reason of, or in consideration of, any evidence given under Subsection (1).
Section 8(1) is the supplemental powers provision — production of documents and exhibits, examination of witnesses who would have been compellable at trial, evidence from a competent but not compellable witness, references to a referee. An appellant who succeeds in having such material received cannot be punished for it.
Where an appellant has been convicted of an offence and could on the charge have been found guilty of some other offence, and the Court is satisfied as to the facts proving that other offence, it may substitute for the verdict a verdict of guilty of the other offence and pass such sentence in substitution as is proper and as is warranted in law for that other offence, not being a sentence of greater severity.
So where the conviction itself is replaced under section 27(2), the substituted sentence is capped by the sentence originally passed.
Where the appellant, though not properly convicted on some charge, or on some count or part of the charge, has been properly convicted on some other, the Court may affirm the sentence passed or pass such sentence in substitution as it thinks proper and is warranted in law by the verdict on the charge or count on which conviction was proper. There is no express cap in subsection (1).
What to tell the client
1. The risk is real and statutory. It is not a matter of judicial discretion that might go either way; section 23(4) obliges the Court to substitute a heavier sentence if it thinks one was warranted.
2. Assess the sentence honestly. Where the sentence is at or below the range for the offence, an appeal is dangerous. Where it is clearly outside the range, the risk is smaller.
3. Consider appealing conviction only. Section 22 treats the two separately, and a conviction appeal does not put the sentence at large in the same way — though section 27 may still operate if a verdict is substituted.
4. Get the advice in writing. A client who is later given a longer sentence should have been told this before instructing.
Section 28
(1) If on an appeal against conviction the Supreme Court thinks that (a) a miscarriage of justice has occurred; and (b) having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make, the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.
(2) Where a new trial is ordered, the Supreme Court may make such order as it thinks proper for the safe custody of the appellant or for admitting him to bail.
So a successful appeal against conviction may result not in acquittal but in a retrial — and the appellant faces sentencing afresh if convicted again. See new trials.
Section 27(3)
If on appeal it appears to the Court that although the appellant committed the act or made the omission charged against him he was not of sound mind at the time, so as not to be responsible for it according to law, the Court may quash the judgment given at the trial and order the appellant to be kept in strict custody in the same manner as if that fact had been found under Section 592 of the Criminal Code (Chapter 262).
Note also section 1(2) of the Act: a person acquitted on the ground of unsoundness of mind which was not set up by him is deemed to have been convicted, and an order to keep him in custody is deemed to be a sentence — which is what gives such a person a right of appeal.
Sources
- Supreme Court Act (Chapter 37) — ss 1(2), 8, 22, 23, 24, 27
- Supreme Court Rules 2012 — O 7 rr 4–10; O 11 r 8
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.