Sentence Appeals

The role of a court of appeal depends critically on what the court is doing. Sometimes the court will consider directly, as in an error of jurisdiction, whether the body appealed from was wrong. Other times the court will look more narrowly and ask if the decision below was unreasonable.

In considering a criminal sentence appeal the court's role is not to decide whether the sentence imposed was that the court of appeal would choose but rather whether the sentence was unfit.

An fit sentence may well differ from that which the court of appeal would have imposed at trial.

This point is illustrated in the recent British Columbia Court of Appeal decision in R. v. Godkin, 2008 BCCA 287. Here a very significant sentence was imposed on a remarkably inept robber (basically ten years although modified somewhat to reflect pretrial custody).

The tone of the Court of Appeal decision suggests some sympathy with the view the sentence was too high. That said, the Court found the sentence was fit and so the appeal was dismissed.

The Court held:

[11]           I recognize that Mr. Godkin has expressed an intention to break his heroin use by participating in a treatment program, and it is very much to be hoped that he will do this as his offending is clearly related to his addiction.  However, the issue before this Court is whether these sentences are unfit.  As I have concluded they are not, the sentences must remain as they were imposed.
James Morton