A sentence appeal always needs leave. That is the first difference from an appeal against conviction, and it shapes everything that follows.
Section 22(d)
A person convicted by the National Court may appeal with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.
Leave is always required. Unlike paragraphs (a) and (b), which give a right of appeal against conviction on a question of law alone or of mixed fact and law, paragraph (d) has no as-of-right limb.
A sentence fixed by law cannot be appealed at all. Where the law prescribes the sentence and leaves the Judge no discretion, there is nothing to review. An appeal against such a sentence is incompetent.
Apply within the 40 days
Section 29(1): a person convicted who desires to appeal or to obtain leave to appeal shall give notice of appeal, or notice of his application for leave to appeal, within 40 days after the date of conviction.
Section 29(2): the time may be extended at any time by the Supreme Court on application made within 40 days after the date of conviction.
So the application for leave must be filed inside the 40 days. It cannot be reserved to the hearing — the reasoning in Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555, holding the equivalent Form 8 alternative to be without legal basis, applies with the same force here.
The prudent course, where conviction and sentence are both challenged, is a Form 7 application for leave and a Form 8 notice of appeal, filed together within the 40 days. Order 7 Rule 6 then gives 21 days from the grant of leave to file the notice of appeal, but there is no penalty for having filed early.
See filing both.
Section 23(4)
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.
The words are in the section. An appeal against sentence carries the risk that the Court concludes a heavier sentence was warranted and substitutes it.
This is a real consideration in advising, and it should be raised with the client before the application is filed. See increasing a sentence.
One protection exists: section 8(2) — 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).
What a sentence appeal argues
The test is whether some other sentence is warranted in law and should have been passed. That is not simply whether the sentence was severe; it is whether the sentencing discretion miscarried.
The categories are those in The State and Davis v Barker [1977] PNGLR 386, where the Supreme Court held that to substitute its own discretion the appellate court must be satisfied the Judge exercised the discretion upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or did not take into account some matter for consideration — and that the decision was clearly wrong or that otherwise injustice might be done.
A ground of appeal should name which category is relied on. Order 7 Rule 10 requires particularity, and a bare assertion that the sentence was excessive does not comply.
Sentences that cannot be appealed
“Unless the sentence is one fixed by law” excludes from appeal a sentence the Judge had no power to alter. Where a statute prescribes the penalty and leaves no discretion, there is nothing for the Supreme Court to review, and an appeal against it is incompetent.
The exception is narrow. A statute that prescribes a maximum leaves a discretion, and a sentence within it is not fixed by law. A statute that provides a minimum, or that prescribes a single penalty, may be a different matter.
Where the point is arguable, expect it to be taken by way of objection to competency under Order 7 Rule 15 — within 14 days of service, in Form 9, with the burden of establishing incompetency on the objector under Rule 18.
Section 24(1) is worth noting
In section 24, “sentence” includes any order made on conviction with reference to the person convicted or his property.
That definition is given for the Public Prosecutor’s appeal right, but it indicates the breadth of what a sentence appeal can reach: compensation orders, restitution orders, forfeiture and orders about property.
Order 11 Rule 8 allows the Court or a Judge, in pending proceedings, to make orders for the suspension or payment of any fine and the suspension or variation of any order relating to restitution of property — Supreme Court Rules 2012.
Sources
- Supreme Court Act (Chapter 37) — ss 8, 22, 23, 24, 29
- Supreme Court Rules 2012 — O 7 rr 4–10; O 11 r 8; Forms 7, 8
- The State and Davis v Barker [1977] PNGLR 386
- Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555
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.