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Correcting the Manifest that is the Approach to Manifest Error in Sentencing Appeals


John Anderson, Mirko Bagaric and Brendon Murphy

Manifest error is the most common appeal ground for sentencing decisions. It is also the most obscure. The courts have held that the ground does not admit of much argument and that no great assistance can be derived from decisions in other cases. This approach is misguided and has resulted in a high degree of unpredictability. Logically, in order to conclude that a sentence is too harsh or too lenient, it is necessary to have a mathematical reference point. A coherent approach to manifest error appeals requires courts to base their decisions on statistical information regarding sentencing ranges for the offence in question and to make comparisons with specific cases. The approach suggested in this article to manifest error appeals would make decisions in sentencing appeals more predictable and enable appeal courts to provide clearer guidance to lower courts regarding appropriate sentencing outcomes.

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