When you are convicted of a criminal offence, you will need to have a sentencing hearing so the judge may sentence you. Although less than half of the sentences imposed in Canada include a period of incarceration, other sanctions, such as fines, driving prohibitions, and probation, can have serious consequences.
My Sentence was Too High, Can I Appeal?
Sentencing judges have wide latitude in crafting appropriate sentences and appellate courts are reluctant to interfere with the sentence that was imposed at first instance. To succeed on a sentence appeal, an appellant must point to one of two errors:
- an error in principle or law that had an impact on the sentence imposed; or
- the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor that had an impact on the sentence imposed.
Additionally, the appellant must show that because of the error, the sentence imposed was demonstrably unfit. It is rare that a sentence will be demonstrably unfit notwithstanding that no error was committed.
What are Sentencing Principles?
Although sentencing judges have a great deal of discretion when it comes to crafting and imposing sentence, they are bound by a set of principles enumerated in the Criminal Code, including:
- Proportionality: the principle that sentences must be proportionate of the gravity of the offence and the degree of moral responsibility of the offender;
- Parity: the principle that similar sentences should be imposed on similar offenders for similar offences;
- Totality: the principle that the total sentence imposed for multiple offences must not be unduly harsh; and
- Restraint: the principle that offenders should not be deprived of liberty if a less restrictive sanction is available.
Where the sentencing judge ignored or made an error with respect to one of these principles, and the error resulted in a sentence that was demonstrably unfit, the appellate court should allow the appeal.
Sentencing judges are also required to identify, consider, and weigh all the relevant aggravating and mitigating factors. Aggravating factors, such as a lengthy criminal record, might suggest that a harsher sentence is appropriate. On the other hand, mitigating factors, such as expressions of remorse or good prospects for rehabilitation, might suggest that a more lenient sentence is appropriate. If the sentencing judge imposes a sentence without regard for a relevant mitigating factor or with an over-emphasis on an aggravating factor, this will be a viable ground of appeal against the sentence imposed.
How do I Win My Sentence Appeal?
To succeed on appeal, the appellant must show that the sentence was demonstrably unfit. An appellate court cannot intervene simply because it would have imposed a different sentence. The appellant must therefore argue that the sentence imposed constituted an unreasonable departure from the principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
I Need an Appeal Lawyer?
Lockyer Zaduk Zeeh has several lawyers within the firm who specialize in appeals and sentence appeals. Contact us at 416-613-0416 to learn how we can assist you, a family member, or a friend appeal a sentence.