Appeals Against Sentence (NT)
In the Northern Territory, a person can appeal against a decision in a criminal matter. An appeal can be against the verdict, the sentence imposed, or both. Unlike many other Australian jurisdictions, the NT does not have appeals de novo, where a matter is considered afresh by a higher court. In the NT, appeals can be heard only where a party is arguing that an error of law has been made. This article deals with appeals against sentences in the NT.
Initiating an appeal
An appeal against a criminal decision by a magistrate in the NT Local Court or Youth Justice Court is heard by a single judge of the Supreme Court.
An appeal against a criminal decision of the Supreme Court is made by the Court of Criminal Appeal, which comprises three judges (not including the judge who made the original decision).
Appeals to the Supreme Court are initiated by filing a Notice of Appeal in the Local Court, setting out the details of the decision being appealed and the proposed grounds of appeal.
Appeals to the Court of Criminal Appeal are initiated by filing a Form 86G Application For Leave to Appeal in the Supreme Court, setting out the details of the decision being appealed and the proposed grounds of appeal.
An appeal must be commenced within 28 days of the decision.
Defence appeals against sentence
When the defence appeals against a sentence, the main ground of appeal is generally that the sentence imposed was manifestly excessive in all the circumstances.
For this ground of appeal to succeed, the court must be satisfied not only that the sentence was harsh, but that it was so harsh as to be outside of the sentencing range for the offending given the objective seriousness of the offending and the subjective circumstances of the offender.
If a sentence is manifestly excessive, it amounts to an error of law and can be overturned at appeal.
What is ‘manifestly excessive’?
Whether a sentence is manifestly excessive must be determined with reference to the maximum penalty that applies to the worst possible case of the offence, which can be taken as a yardstick for determining the appropriate penalty.
A sentence is ‘manifestly excessive’ only if it is ‘unreasonable or plainly unjust.’ A sentence is not manifestly excessive simply because the court hearing the appeal would have imposed a lesser sentence.
When arguing that a sentence is manifestly excessive, the defence may point to factors such as:
- the seriousness of the offending and the accused’s level of culpability;
- the accused’s prior good character;
- sentences imposed in other, comparable, matters;
- the accused’s circumstances, particularly any mitigating factors.
- the accused’s plea of guilty.
Prosecution appeals against sentence
When the prosecution appeals against a sentence, the main ground of appeal is generally that the sentence imposed was manifestly inadequate in all the circumstances.
For this argument to succeed, the court must be satisfied not only that the sentence was lenient, but that it was outside of the sentencing range for the offending given the circumstances of the offending and of the offender.
If a sentence is manifestly inadequate, this amounts to an error of law and the decision can be overturned at appeal.
The Queen v Newaz
The 2022 Court of Criminal Appeal decision of The Queen v Newaz concerned an appeal by the prosecution against a sentence imposed for dangerous driving causing death. The maximum penalty for the offence was ten years imprisonment. The sentence imposed was a term of imprisonment of three years, to be suspended immediately for an operational period of three years.
The defendant, in that case, had been driving a garbage truck in heavy traffic along McMillans Road, Darwin, in the late afternoon and failed to slow down when traffic ahead of him could be seen to be slowing down. The accused claimed this was because he was focused on the vehicle immediately ahead of him. As a result, he did not start to slow down until a crash was unavoidable, swerved to avoid the vehicle in front, and collided head-on with an oncoming car.
The sentencing judge remarked that although the offence was serious, the accused’s conduct was at the lower end of the scale. He was not affected by drugs or alcohol and was not speeding or using a phone. He was not driving in a reckless manner. He had remained at the crash scene and assisted police with their inquiries.
The prosecution argued that the accused was driving inattentively for a period of nine seconds during which he had the opportunity to observe the traffic ahead of him slowing down and that this was inherently dangerous behaviour.
However, the court found that the sentence was not manifestly inadequate as the offence was the result of momentary inattention by a man who was of prior good character and who had shown genuine remorse for the offence, as well as suffering PTSD and suicidal thoughts as a result of the incident.
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