An appeal against a sentence imposed by a Local Court Magistrate is heard in the District Court by a Judge. The DPP appear for the police. Normally a solicitor or barrister would appear on your behalf.
How to appeal a sentence
A severity (sentence) appeal can be lodged at either:
- The Registrar of any Local Court; or
- The person in charge of the place where you are in custody.
Time limit for lodging an appeal
A severity appeal must be lodged within 28 days after the sentence is imposed by the Magistrate. If the appeal is not lodged within 28 days, but before 3 months has elapsed, you need the leave of the District Court for your appeal to proceed with your severity appeal.
The District Court has no power to hear an appeal that is filed more than 3 months after the Local Court sentence was imposed.
Effect of lodging a Notice of Appeal
When a Notice of Appeal is lodged, any sentence, penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction, is stayed.
A stay of execution continues in force until the appeal is finally determined.
The following exceptions apply:
- 1. If the appeal is not lodged within 28 days after the Local Court Sentence, then until the District Court grants leave.
- 2. If you are refused bail, the jail (gaol) sentence continues to be in force.
- 3. It does not stay a suspension period if a suspension notice was issued by police prior to the original court proceedings. However, the District Court may stay the suspension of it considers a stay to be appropriate in the circumstances.
What is Likely to Happen in Court?
The DPP will have a bundle of documents that it will hand to the court. The bundle will include a cover sheet that summarises the important details that the Judge will need to know. These details include:
- The name of the Magistrate; the date of your court appearance and the Local Court where the sentence was imposed;
- The penalty imposed by the Local Court Magistrate;
- The name of the offence and the maximum penalty that can be imposed;
- The length of time you may have spent in jail (gaol).
The bundle will include the court attendance notices, the police facts sheet, your criminal and traffic (if appropriate) records, and any other documents that the magistrate had when they imposed the sentence including references of the offender.
The DPP will give your lawyer a copy of the bundle. Your lawyer will look through the bundle to ensure that nothing unfairly prejudicial is in the bundle.
The DPP will tender the documents and the judge will read the material.
Your lawyer will call any oral evidence. You will normally be called to give evidence. Your lawyer should advise you of what they expect of you and explain the types of questions they will ask of you.
If you do give evidence, you may be cross examined by the DPP. Answer the questions honestly and try and remain composed during the cross examination. Remember, the judge will be watching the way you perform to decide whether they should accept your evidence.
After all evidence has been given, your lawyer will make submissions. The DPP may also make submissions. The court will then make a decision.
Orders a District Court Judge can make?
The District Court can either:
- Set aside the sentence and vary the sentence; or
- Dismiss the appeal.
A Parker warning is a warning that must be given to you by a District Court Judge if they intend to increase the penalty that was imposed in the Local Court.
If a Parker warning is given and you withdraw your appeal, the District Court judge CANNOT increase the penalty that was imposed by the Local Court. However, if you continue on with your appeal after a Parker warning has been given, then the District Court judge can impose a greater penalty than that imposed in the Local Court.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.