Area of Law – Practice and Procedure

An Article about Appeal in criminal case on basis of crushing sentence

Appeal – crushing sentence
There are many reasons for appealing decisions. The most common ground of appeal against a sentence from the County Court to the Court of appeal is that the sentence was manifestly excessive (ie obviously too harsh).

Often people come to us (after having other lawyers acting) and say that their family member or friend will not survive the sentence that has been imposed on them or that it will completely crush them.

As the case law below states, ‘a crushing sentence’ is an important factor but just one of the factors in deciding if a sentence was too harsh. There are many factors that may show that the sentence imposed was unduly harsh

The case law below is in relation to the concept of a “crushing” sentence.

“Whether a sentence may adjectively be described as crushing on the offender is but one of the matters to be taken into account in determining whether it is beyond the range of sentences properly available to the sentencing judge. The concept does not constitute separate sentencing error, so that the mere fact that the sentence is crushing does not of itself suggest that it is necessarily a manifestly excessive sentence”

R v Cumberbatch [2004 VCSA] 37

This was a case where a woman of 72 killed her husband and was given a 11 ½ year minimum.

It is well established that a head sentence must be assessed on the basis that the prisoner may have to serve every day of it. A head sentence that is too severe cannot be saved by a moderate, or even merciful, non-parole period.

R v Monardo [2005] VSCA 115 (13 May 2005)

Appeals are a very complex area of the law and have very tight time frames. From the County Court you only have 14 days after the sentence is imposed to lodge your appeal grounds. It is important to talk to lawyers who specialize in this sort of work as soon as possible.


Date: 01/09/2009