CRIMINAL DEFENCE LAWYERS

Introduction

Sentences imposed by Local Courts are open to a number of review and appeal avenues. This article intends to provide a brief overview of the process involved in severity appeals from the Local Court to the District Court.

Criminal appeals are generally governed by the Crimes (Appeal and Review) Act 2001 (NSW) (the Act). Under section 11(1) of the Act, any person who has been sentenced by a Local Court may appeal to the District Court against the severity of the sentence.

Appeals to the District Court

Appeals to the District Court are heard by a single judge. A solicitor from the Office of the Director of Public Prosecutions (DPP) usually appears for the Crown. A solicitor or barrister may appear for the appellant.

The District Court will rehear the evidence given in the original Local Court proceedings in order to determine the appeal. Fresh evidence that was not before the Local Court can be given in the appeal proceedings. This fresh evidence can include references or reports that support the appeal case.

Commencing the Appeal

Under section 11(2)(a) of the Act, an appeal must be made within 28 days after the sentence is imposed. If an appeal is lodged within 28 days of sentence, the appropriate form is the Notice of Appeal.

If the 28-day period has passed, leave of the District Court must be sought by way of an Application for Leave to Appeal. Under s 13(2) this must be done within three months of the date the sentence was imposed.

Under section 14(1) of the Act, an appeal is made by lodging a written Notice of Appeal or an Application for Leave to Appeal with either:

(a)    The Registrar of any Local Court; or

(b)   The person in charge of the place where the appellant is in custody.

The Notice of Appeal or Application for Leave to Appeal can be obtained from any Local Court Registry. It is also available on the Local Courts website.

The Effect of Lodging a Notice of Appeal

Once a Notice of Appeal is lodged, any sentence, penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of licence or privilege arising under an Act as a consequence of a conviction is stayed. This means that the sentence or order does not take effect until the appeal is determined.

There are exceptions to this general rule as noted in section 63 of the Act. These include:

• If a person requires leave to appeal, the stay only takes effect when leave is actually granted.
• If the appellant is in custody, and has not been granted bail, the sentence of imprisonment continues to have effect.

Powers of the District Court when Dealing with Appeals

Under section 20(2) of the Act, upon hearing the appeal, the District Court may:

(a)    Set aside the sentence;

(b)   Vary the sentence; or

(c)    Dismiss the appeal.

However, under section 71 of the Act, the District Court must not make an order or impose a sentence that could not have been made or imposed in the Local Court. Further if the District Court is considering increasing the sentence that was imposed by the Local Court, the Court must warn the appellant.

If such a warning is given, it is possible to seek leave to withdraw the appeal. However, it is up to the Judge whether leave is granted and if it is not granted, the appeal will have to go ahead.

Failure to Appear

If the appellant (or his/her legal representative) fails to appear to argue the appeal or the application for leave to appeal, the Court may dismiss the matter.

If such a dismissal has been ordered, it is possible to apply to the Court to have the dismissal revoked under section 22 of the Act. The application for revocation of dismissal must be made within 12 months of the date on which the dismissal order was made.

Under section 22(3) of the Act, after hearing the application, the District Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied that:

(a)    The appellant has show sufficient cause for the failure to appear; and

(b)   It is in the interests of justice that the appeal or application be heard.

Other Options

Severity appeal to the District Court is one option that may be taken when the Local Court hands down a sentence. Some other options are:

• Annulment of conviction or sentence;
• Conviction appeal;
• Appeal to the Supreme Court; and
• Appeal to the Land and Environment Court.

Whether any of these options are available and/or suitable will depend on the circumstances of each particular case.

Getting Help

Aston Legal
Criminal Defence Lawyers
Level 2, 370 Pitt Street
SYDNEY NSW 2000
Tel: (02) 9261 3301
Fax: (02) 9261 3341
Mob: 0424 1999 04
Email: notguilty@astonlegal.com