Prosecution Appeals Against Sentence
- Arie FreibergArie FreibergEmeritus Professor of Law, Monash University
Sentencing is a complex task that involves judicial officers imposing sentences in the first instance and deciding appeals from those judges in certain circumstances. Both trial and appellate courts are usually invested with some discretion as to the nature and quantum of sentence that may be imposed. Appellate jurisdiction varies widely between countries reflecting disparate approaches to discretion, differences in the grounds of appeal, in the deference paid to trial judges and the role of prosecution in the appellate process. While most jurisdictions give defendants the right to appeal against sentence, they differ in the ability of prosecuting authorities to appeal against sentence. In some jurisdictions there is considerable asymmetry between defendants’ and prosecution’s appellate rights.
Historically, defendants’ rights of appeal preceded, and have been more extensive those of the prosecution, and traditionally, the balance has been tilted in favor of defendants. However, in a number of jurisdictions, this imbalance has been questioned. The principal arguments against prosecution appeals have centered on the concept of double jeopardy, which has long applied in substantive criminal procedure. Since the early 1980s the analogy with substantive double jeopardy has been questioned or rejected as has the double jeopardy principle itself. Justifications for the principle such as the anxiety and distress suffered by the defendant, the need for finality, the possibility of double punishment, and the abuse of power have all been re-assessed.
The case for equal or symmetrical rights rests on the basis that the law requires that error, whether in favor of the defendant or the prosecution, should be corrected as a matter of justice. A balanced appellate process can ensure consistency in, and the adequacy of, sentencing standards, provide guidance to sentencing judges, and increase victims’ and public confidence in the criminal justice system.