If a person is found guilty or has pleaded guilty in the Local Court, but believes that the penalty imposed is excessive, an appeal can be made to the District Court.

A severity appeal serves as an avenue which allows individuals to present their case before a higher court, usually the District Court of New South Wales, seeking a review and potential revision of the imposed sentence in the Local Court, with an aim to reduce or modify the severity of the original sentence.

The most common appeals are from the Local Court to the District Court, or from the District Court to the NSW Court of Criminal Appeal.

 

Any person who has been sentenced by the Local Court may appeal to the District Court against the sentence pursuant to s11(1) Crimes (Appeal and Review) Act 2001 (NSW). The appeal is by way of a rehearing of the original evidence in the Local Court proceedings, however, fresh evidence may be given in the appeal proceedings pursuant to s17 Crimes (Appeal and Review) Act 2001.

The appellant does not have to demonstrate that the Local Court committed a legal error, resulted in a miscarriage of justice, or engaged in any other form of legal, factual, or procedural oversight.

The nature of an appeal “by way of rehearing” was discussed in Fox v Percy (2003) 214 CLR 118. Referring to the “requirements, and limitations, of such an appeal” the plurality said at [23]:

“On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share.”

 

Reasons for filing a severity appeal

You can appeal against many decisions made by the Local Court for reasons including:

  • Excessive sentence.
  • Inconsistency with similar cases.
  • Failure to consider mitigating factors.
  • Errors in sentencing procedure.
  • Disproportionate impact.

 

Process of filing a severity appeal

If you choose to appeal the severity of a Local Court sentence, the appeal must be lodged at the Local Court which handed down the sentence.

The notice of appeal must state the general grounds of appeal.

The period for filing the appeal is 28 days from the date of the Local Court sentencing hearing.

This can be extended to up to three months from the date of the Local Court sentencing hearing if permitted by way of “leave” obtained from the District Court. An appellant in custody may lodge the appeal from the prison or detention centre pursuant to s14(1) Crimes (Appeal and Review) Act 2001, (although it is usually preferable for a solicitor to lodge the appeal on the client’s behalf, as some correctional centres are not very reliable at ensuring appeals are lodged)

The prescribed form can be downloaded from the Local Court website.

When a Notice of Appeal is lodged, any sentence, penalty, restitution, compensation, forfeiture, destruction, or disqualification is stayed. This means that the penalty is put on hold pending the outcome of the appeal, with some exceptions:

  • If the appeal is not lodged within 28 days after the Local Court sentence, then no stay is granted until the District Court grants leave.
  • If there is a custodial sentence and the defendant is refused bail, they will continue serving the sentence until the appeal is heard.
  • If police issued a licence suspension or disqualification prior to the original court proceedings, these orders will not be stayed. However, the District Court may stay the suspension if it considers a stay to be appropriate in the circumstances.

 

Do I need a lawyer for a severity appeal?

Having legal representation during severity appeals plays a crucial role in ensuring fair and just outcomes. Lawyers bring expertise in legal procedures, statutes, and case law, which are essential for navigating the complexities of the appeals process. They provide valuable guidance to appellants, advising them on the strengths and weaknesses of their case, potential grounds of appeal, and the most effective strategies for presenting their appeal before the court.  Additionally, legal representation helps to balance the proceedings, ensuring that appellants have a voice and are able to effectively challenge the original sentence.

 

Orders that can be made

During the appeal process, the District Court will assess the sentence handed down by the Local Court. It will listen to arguments presented by the appellant and may also examine additional evidence pertaining to the initial sentence. After thorough consideration of all pertinent information, the District Court reserves the right to overturn the original sentence, modify it, or reject the appeal on severity grounds. If the appeal on severity is rejected, the original sentence pronounced by the Local Court remains in effect.

Section 20(2) of the Crimes (Appeal and Review) Act 2001 empowers the District Court to either:

  1. Allow the appeal, and quash a conviction entered and/or resentence the person; or
  2. Dismiss the appeal.

Many appellants who lodge severity appeals are concerned that if they are unsuccessful, they might be subjected to a harsher penalty than their original sentence. If the District Court is considering imposing a harsher penalty in a defence appeal, it must give the defendant what is known as a “Parker warning”. Where the judge is contemplating an increased sentence, the principles in Parker v DPP (1992) 28 NSWLR 282 require the judge to indicate this fact so that the appellant can consider whether or not to apply for leave to withdraw the appeal.

 

How can we help?

Nyman Gibson Miralis provides expert advice and representation in severity appeals at every level of the court system.

Contact us if you require assistance.