Can I appeal my sentence?
Can I appeal my sentence?
What is an appeal?
An appeal is a challenge of a previous legal decision. If you have been found guilty of an offence and believe you are not guilty or think your sentence was too harsh, then you might be able to appeal that decision. Read on to find out more about appeals of Local Court decisions and scroll further down for appeals to the Court of Criminal Appeal.
Can I appeal a Local Court decision?
There is a right of appeal to the District Court of a decision made by the Local Court including:
being found guilty after hearing after a plea of not guilty
when the sentence is too severe (including where you have been convicted after pleading guilty and were seeking a non-conviction outcome)
where the court has refused a section 14 application
where the court has refused an annulment application.
What type of appeals can be made from the Local Court?
There are typically three ways an appeal can be made from the Local Court to the District Court.
Conviction appeal
This is an appeal against the conviction made in the Local Court and is typically made after a person has been found guilty after a defended hearing. In this appeal, the court re-hears the evidence given in the Local Court by reading the transcript and looking at any exhibits tendered. The court will then hear submissions from the prosecution and defence and decide whether the prosecution was able to prove their case beyond reasonable doubt.
Fresh evidence is not usually relied on in a District Court appeal, however, additional evidence can be tendered with leave, that is, if the District Court judge gives permission.
The District Court can either set aside the original conviction in the Local Court or dismiss the appeal.
Severity appeal
A severity appeal is an appeal against the sentence made in the Local Court. A severity appeal is like a second sentence hearing - the District Court doesn’t read the transcripts of the Local Court proceedings – the District Court hears the matter afresh.
The District Court can set aside the original sentence, vary the sentence or dismiss the appeal.
The District Court may increase or reduce the severity of the sentence in the Local Court. If the Court is considering increasing the sentence, they must give the appellant a warning. This is called a ‘Parker’ warning. The appellant then has the chance to consider whether they wish to continue with the appeal or withdraw the appeal.
Conviction and severity appeal
This is also known as an all grounds appeal and usually, if you are appealing a conviction, you would tend to also appeal any sentence outcome at the same time. If the conviction appeal is successful, the court does not move onto the severity appeal. If the conviction appeal is unsuccessful, the court will then consider the sentence that was originally imposed.
How long do I have to make an appeal?
You have 28 days from the date of your sentence in the Local Court to lodge an appeal. An appeal can be lodged at any Local Court registry in New South Wales.
Once you have lodged your appeal, in most cases, your court outcome is 'stayed'. This means any convictions, good behaviour bonds and fines that were imposed by the Local Court are placed on hold until your appeal is heard in the District Court.
If your appeal is not lodged within the required 28 days, then you must seek leave to appeal. An application for leave to appeal must be lodged within 3 months of the Local Court decision. A different form is filled out at the Registry and when the matter is heard in the District Court, the judge will first determine whether leave should be granted. Generally, this means that submissions have to be made about the reasons why the appeal wasn’t able to be lodged in the first 28 day period. After that three month period, there is no avenue for appeal.
Appealing from the District Court and Court of Criminal Appeal
Appeals from a decision made in the District or Supreme Court go to the Court of Criminal Appeal. Appeals may be made on conviction and on severity of sentence as of right, but only based on an error of law. If there is a question of error of mixed fact and law, these appeals may only be made with leave of the court.
What needs to be done after the sentence?
A Notice of Intention to Appeal (or NIA) must be lodged within 28 days of the court’s decision. After the NIA has been filed with the court, you have 12 months to lodge the appeal. During that 12 month period, advice from counsel will generally be sought as to the merits of the appeal and to prepare the grounds and submissions to be filed.
Considering an appeal?
It is always best to obtain legal advice as soon as possible so that the documents can be filed within the first 28-day period. If you are considering appealing your matter, the team at Kingston Fox Lawyers are here to help. Contact us by clicking the button below or give us a call on 0457 781 133.
This is general advice only and does not constitute legal advice.
