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I would like to take this opportunity to thank Armstrong Legal and specifically Mr Thomas Allen for representing me in my recent case. At the outset, I would like to thank Mr Allen for the very professional delivery of his legal service. From the first time that I met Mr Allen, I was very impressed with his demeanour and delivery as he made me feel at ease knowing the severity of my case. Mr Allen not only gave me the possible positive outcomes of the case but also the realisation of the worst-case scenario as far as sentencing goes. … I will certainly be recommending Armstrong Legal to any of my friends or family needing representation in criminal matters. Thank you so very much.
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Thank you Armstrong Legal, the lawyers that have helped over the past 3 years but more importantly, thank you to Thomas Allen for the major part you and Mr Buckland played. Cannot thank you enough. Cheers.
Hi all. I would like to thank Ms Lisa Riley for all her help with my legal issues this past month. It was the most harrowing experience of my life and thanks to her expertise, professionalism and knowledge of the law, I came out almost unscathed. I have no hesitation in recommending Lisa Riley and Armstrong Legal if you need help. The service is amazing and the cost was very minimal for the great outcome. Thank you Lisa for helping me in the most difficult time.
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Throughout Angela has been the consummate professional. She maintained a calm, yet strong demeanour remained informative and completely open in her communication and took complete ownership of the situation. We felt confident we finally had an advocate to steer us out of the nightmare we were in, and she did so with great respect and sincerity. I cannot speak more highly of Angela. She has literally rescued our family from what looked very much like a hopeless future.
Words can’t describe how grateful I am to Trudie Cameron being my solicitor and to Andrew Tiedt presenting my case in the court. They both have been very supportive and amazingly professional and effective. I’ve got an absolutely fantastic outcome I couldn’t even dream about.
Soon after meeting Andrew I knew he was the solicitor I wanted to handle my matter. He immediately sprang into action which brought me stability and hope during a tumultuous time in my life. Andrew was never afraid to give me straight answers to my tough questions which is a true mark of integrity. He is clearly at ease in the court environment and I believe his calm and measured demeanour went a long way to helping me secure the best result from my day in court. I would certainly recommend you approach Andrew if you need assistance.
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A person who has been sentenced in the Local Court has an automatic right of appeal to the District Court, provided the appeal is filed within 28 days of the date the orders were made in the Local Court.
If an appeal is filed after 28 days of this date, but within three months of it, a person may still appeal but is required to seek and be granted the leave (permission) of the District Court.
A person cannot appeal a decision by a Local Court Magistrate if more than three months has elapsed since the finalisation of the matter in the Local Court.
Severity Appeal Procedure
Section 17 of the Crimes (Appeal & Review) Act 2001 states that an appeal against sentence is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.
What this means in practice is that the judge will receive a copy of all the material that the sentencing Magistrate had in the Local Court, plus any fresh evidence. Usually, the judge will receive a copy of the facts tendered in the Local Court, a criminal history and any material tendered on behalf of the person being sentenced, such as character references, a letter of remorse, psychological report or medical documentation. If the defendant was sentenced after being found guilty at hearing, the judge will have a transcript of the judgement delivered by the Magistrate and will determine the appeal based on the findings of fact by that Magistrate (unless a conviction appeal is also heard).
Effect Of Lodging A Notice Of Appeal
When a Notice of Appeal is lodged, any sentence, penalty, restitution, compensation, forfeiture, destruction or disqualification, is stayed.
A stay of execution of any penalty continues in force until the appeal is finally determined.
The following exceptions apply:
- 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.
What Is Likely To Happen In Court?
When your severity appeal is listed for hearing, a solicitor will appear on behalf of the DPP. They will have a bundle of documents that will have been, or will be, provided 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 Magistrate who decided the matter;
- The offence and the maximum penalty that can be imposed;
- The date the sentence was imposed and the Local Court where the sentence was imposed;
- The penalty imposed;
- Any documents tendered in the Local Court by either the prosecution or the defence;
- The defendant’s current criminal or traffic record; and
- The length of time the defendant has spent in jail (if applicable).
The solicitor appearing on behalf of the DPP must provide the legal representative for the person appealing with a copy of this bundle. This should be reviewed carefully to ensure nothing is missing, inaccurate or unfairly prejudicial.
The DPP will tender the documents, if they haven’t already, and the judge will read the material. The judge can also receive additional material tendered by the defence. Both legal representatives can also tender written submissions.
In addition, the defence can call oral evidence from the defendant. This should occur only after legal advice about the merits, or potential risks, of doing so and an explanation as to what to expect. If the person appealing chooses to give evidence, they may be cross-examined by the solicitor appearing on behalf of the DPP.
After all evidence has been given and material reviewed, the legal representatives will be permitted to make oral submissions. The court will then make a decision or adjourn to give a decision at a later date.
Orders A District Court Judge Can Make
The District Court can either:
- Allow the appeal, and:
- quash a conviction entered; and/or
- resentence the person; or
- Dismiss the appeal.
As a severity appeal involves a re-determination of a sentence, a Judge can technically impose a harsher sentence. However, before doing so, they must give the person appealing a “Parker Warning”.
A Parker warning is a warning that must be given 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 the person appearing can withdraw their appeal on the spot. Where this occurs, the District Court Judge cannot increase the penalty that was imposed by the Local Court and the penalty imposed in the Local Court remains. However, if the person appealing continues with the appeal after a Parker warning has been given, then the District Court Judge can, and often will, impose a greater penalty than that which was imposed in the Local Court.
If you require information on severity appeals or any other legal matter please contact Armstrong Legal.
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