A miscarriage of justice may be established on sentence appeal where the sentencing judge was deprived of significant mental health evidence, without the appellate court needing to resolve whether the failure was attributable to incompetent representation or the applicant's own instructions. The decision to proceed to sentence without obtaining a psychiatric report is not a forensic decision binding on the applicant where no substantive disadvantage from adjournment can be identified. Where no error is identified in the sentencing judge's approach on the material before him, remitter rather than resentencing by the appellate court is appropriate.
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