The Supreme Court has set aside the Court of Appeal’s order on a sentence appeal and affirmed the original order of the Central Criminal Court, after finding that the Court of Appeal had taken the wrong approach to the accused’s sentence.
The decision was made following further submissions on the order to be made after the Supreme Court’s substantive judgment of 6 December 2019. In that judgment, the Court, agreeing with Charleton J., found that the Court of Appeal had erred by considering the rape offence in isolation from its surrounding circumstances.
In the judgment on the resulting order, delivered by O’Malley J. on 26 February 2020, the Court rejected the respondent’s submission that it lacked jurisdiction to make an order affecting the sentence. O’Malley J. said that where the Supreme Court has jurisdiction to hear an appeal, it must be able to make an appropriate order to give effect to its decision, subject to the Constitution and relevant legislation.
The Court also addressed what should follow when an error is found in a sentence appeal. O’Malley J. said the Supreme Court should generally avoid taking on the role of a sentencing court unless both lower courts had erred in principle, while leaving open the possibility of intervention in exceptional circumstances.
This was the accused’s appeal against the sentence imposed by the Central Criminal Court, on the ground that the trial judge had erred in principle. It was not a prosecution appeal on grounds of undue leniency. The Supreme Court concluded that the Court of Appeal had erred in assessing the accused’s appeal, and that the trial judge had approached sentencing correctly and had not erred in principle. O’Malley J. therefore said the trial judge’s sentence should stand.
The respondent had also relied on evidence of conduct in custody and argued for a discount reflecting the stress of a sentence increase. O’Malley J. said the evidence showed reasonably good use of time in custody, but did not amount to exceptional circumstances. She also considered the circumstances different from an undue-leniency appeal: the respondent had initiated the appeal, which created the possibility of an increase, and the Director’s appeal to the Supreme Court resulted in restoration of the original sentence.
The operative order set aside the Court of Appeal’s order and affirmed the Central Criminal Court’s order. The judgment does not state the sentence’s length or terms.