Sentence appeals in NSW: Kentwell and manifest excess.

A sentence imposed by a NSW court is not the final word. Severity appeals lie from the Local Court to the District Court, and from the District Court to the Court of Criminal Appeal. The test the appeal court applies is not whether it would have imposed a different sentence; it is whether the sentencing exercise miscarried. This note sets out the test from House v The King, the re-sentencing duty articulated in Kentwell v The Queen, and the path a manifest-excess appeal takes in practice.

The two paths: Local Court and District Court appeals

The appellate route depends on the court that imposed the sentence.

From the Local Court. A severity or conviction appeal lies to the District Court under Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW). The notice of appeal must be filed within 28 days of sentence. The District Court hears the appeal de novo: new evidence can be called, fresh material can be tendered, and the District Court can re-sentence the appellant.

From the District Court. A sentence appeal lies to the Court of Criminal Appeal (the CCA) under section 5 of the Criminal Appeal Act 1912 (NSW). Leave to appeal is required; the leave application is dealt with together with the appeal in most cases. The CCA does not hear the appeal de novo; the appellant must identify error in the sentencing exercise.

The test for specific error: House v The King

The classic statement of the appellate test for sentencing error remains the joint judgment in House v The King (1936) 55 CLR 499. The court identified four categories of error that justify appellate intervention:

1. The sentencing judge acted on a wrong principle.
2. The sentencing judge allowed extraneous or irrelevant matters to guide or affect the discretion.
3. The sentencing judge mistook the facts.
4. The sentencing judge failed to take into account a material consideration.

If one of these four "specific errors" is shown, the appellate court's discretion to intervene is enlivened. The error itself is the basis for intervention.

Manifest excess: the fifth category

Outside the four House v The King categories sits the residual ground of manifest excess. Where the sentence is manifestly excessive in all the circumstances of the case, the appellate court may infer that the sentencing exercise has miscarried, even where no specific error can be identified in the reasoning. The test is high: the sentence must be "obviously, not just plainly, out of the proper range" for offending of that kind.

Manifest excess is a difficult ground to run. It requires the appellate court to be persuaded that no reasonable sentencing judge could have arrived at the sentence imposed. The standard of cases (the JIRS sentencing statistics and the comparable case database) is the working evidence; the argument is run by identifying truly comparable matters in which lower sentences were imposed.

Kentwell v The Queen: the re-sentencing duty

The High Court's decision in Kentwell v The Queen [2014] HCA 37 changed the way appellate courts approach re-sentencing once specific error is shown.

The plurality (French CJ, Hayne, Bell and Keane JJ) held that, once specific error is identified within the meaning of House v The King, the appellate court does not undertake an assessment of whether (and how much) the error influenced the outcome. The sentencing discretion is treated as having miscarried, and it is the duty of the appellate court to exercise the sentencing discretion afresh.

The practical consequences are two:

• The court is not confined to substituting a sentence within the range the original judge could properly have imposed; it imposes the sentence it considers appropriate in the exercise of its own discretion.
• The court re-sentences on the material before the sentencing court, supplemented by any relevant evidence of events since the original sentence hearing · including rehabilitation, fresh expert reports, or material relevant to the appellant's circumstances on release.

The Kentwell approach makes the identification of specific error the central appellate task. Once the error is identified, the path to re-sentence is open.

When the appellate court declines to re-sentence

Even where error is shown, the appellate court will not always disturb the sentence. Where, on a fresh exercise of the discretion, the appellate court concludes that the same or a greater sentence is appropriate, it is not required to substitute a different sentence. The appeal can be dismissed even with error identified, where the appellate court is satisfied that the sentence imposed was within the range a properly directed sentencing judge could have imposed.

The CCA exercises this restraint frequently. Identifying error is the first job; persuading the court to substitute a lower sentence is the second.

The five grounds that most often succeed

In the matters that come our way, five lines of argument account for most successful sentence appeals.

Failure to apply the section 25D plea discount correctly. Where the sentencing judge did not record the discount, or applied a discount below the statutory mandatory level, the appellate court intervenes. See our note on the early-plea discount for the framework.

Failure to consider a material subjective factor. Where the sentencing judge did not take into account a treating psychiatrist's report properly admitted into evidence, or did not engage with a material aspect of the offender's background (intergenerational disadvantage, mental health, a treatable condition).

Misapplication of the standard non-parole period regime. Where the sentencing judge treated the SNPP as a starting point rather than a guide, or where the judge imposed a non-parole period below the SNPP without giving sufficient reasons.

Failure to apply the totality principle correctly. Where a series of sentences was imposed cumulatively without an adjustment for totality.

Manifest excess. Difficult to run, but available where the sentence sits well outside the comparable case range.

Severity appeal from the Local Court: a more open path

A severity appeal from the Local Court to the District Court is a different proposition. The District Court does not need to find specific error. The appeal is heard de novo; the District Court sentences afresh, taking into account any new material the appellant tenders.

The risk runs both ways. The District Court can substitute a more severe sentence (the "warning" the District Court must give before increasing the sentence is the safeguard for the appellant, who can withdraw the appeal). The decision to run a severity appeal therefore turns on the assessment of where the District Court is likely to land.

In our practice, severity appeals from the Local Court succeed most often where:

• The Local Court magistrate made a finding inconsistent with the subjective material before the court.
• New material has emerged since the Local Court sentence (completion of a program, a clinical diagnosis, evidence of rehabilitation).
• The Local Court magistrate did not apply a sentencing option that was available and would have been appropriate.

What an appellant should expect

Sentence appeals proceed on a structured timetable. For District Court appeals from the Local Court, the timetable is set at the first directions hearing; the appeal is usually heard within three to four months. For CCA appeals, the timetable is longer; the appeal is typically heard nine to twelve months after the notice of appeal is filed.

Bail pending appeal is available in both jurisdictions but is not automatically granted. The appellant must show that the appeal has reasonable prospects and that the appellant will appear if released. Bail pending an appeal is more readily granted where the head sentence is short and the appellant is otherwise a low risk.

One last note

A sentence appeal is the second chance the criminal justice system offers. It is not free; the appellate court can increase the sentence, and the costs orders that follow an unsuccessful appeal are real. But for an appellant whose sentence was the product of an identifiable error, or whose sentence sits outside the working range for matters of that kind, the appeal is the path that exists for that purpose. The work that supports a good appeal is the work that identifies the error with precision, marshals the authorities, and presents the appellate court with a clear case for intervention.

This note is general information about New South Wales sentencing and appeal law and is not legal advice for any particular case. For advice on your matter, contact us through our contact page or phone 0421 717 019.

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