On a Crown appeal against sentence, where appellable error is established but the offender has already served a substantial period in custody under an overturned appellate sentence, the time served, medical conditions exacerbated by imprisonment, rehabilitative progress, and the unique procedural history are powerful factors in the exercise of the residual discretion to dismiss the appeal. The onus lies on the Crown to demonstrate that the residual discretion should not be exercised in the offender's favour. The guidance afforded to sentencing judges by allowing a Crown appeal should not come at too high a cost in terms of justice to the individual.
The full text is available to signed-in members, including the 3 later cases that cite this judgment.