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Severity Appeal

An appeal against a sentence imposed by a Local Court Magistrate is known as a severity appeal. Where this appeal is made in conjunction with a conviction appeal it is known as an all grounds appeal.

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:

  1. 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.
  2. If there is a custodial sentence and the defendant is refused bail, they will continue serving the sentence until the appeal is heard.
  3. 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:

  1. The Magistrate who decided the matter;
  2. The offence and the maximum penalty that can be imposed;
  3. The date the sentence was imposed and the Local Court where the sentence was imposed;
  4. The penalty imposed;
  5. Any documents tendered in the Local Court by either the prosecution or the defence;
  6. The defendant’s current criminal or traffic record; and
  7. 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:

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

Parker Warning

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.

Trudie Cameron

This article was written by Trudie Cameron

Trudie Cameron is the Practice Director of Criminal Law and is responsible for supervising and managing the New South Wales Criminal Law team in addition to her own caseload. She practices in both NSW and the ACT. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and...

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