This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Sentence Appeals
An appeal against sentence, also called a severity appeal, is not an appeal against the finding that you are guilty of an offence. A sentence appeal is an appeal against the penalty imposed for your offence.
Appeals To The District Court
Whether you pled not guilty or guilty and were convicted and sentenced in the Magistrates Court, you can appeal against the penalty imposed on you in the District Court.
An appeal against sentence must be made in the District Court within 1 month of the decision. An appeal is made by filing a notice of appeal with the District Court registry or, if the appellant is in prison, with the general manager of that facility.
When considering an appeal against a magistrate’s sentence, the District Court will determine the case afresh and sometimes it will hear new evidence (something a higher court, like the Court of Appeal, is generally not able to do).
Upon hearing an appeal against a magistrate’s sentence, if you are successful the District Court has the power to reverse the magistrate’s decision and impose a different sentence itself. In some unusual cases the District Court can order that the matter be remitted, or sent back, to the original magistrate for them to reconsider the penalty.
Appeals To The Court Of Appeal
If you are sentenced in the District or Supreme Courts, you can appeal against the penalty imposed on you in the Court of Appeal, the highest criminal court in Queensland, only if that court gives you permission to do so.
An application for leave to appeal against a sentence in the Court of Appeal, must be made within 1 month of the sentence being passed. An application for leave is commenced by a notice of application for leave to appeal being filed with the Court Registry or, if the appellant is in prison, with the general manager of that facility.
If you are granted permission to appeal against your sentence, and if you are successful, the Court of Appeal has the power to overturn the original decision and substitute a different sentence of its own.
Should I Appeal My Sentence?
Sentence appeals, whether against a magistrate’s sentence or a penalty imposed in the District or Supreme Courts, all require you to satisfy the appellate court that your sentence was too harsh, something called “manifestly excessive”. There are many ways to do this, for example by pointing out the ways in which mitigating factors were not properly taken into account, or drawing attention to other cases, comparable to yours, in which lesser penalties were imposed.
An appeal against sentence will normally involve a good deal of persuasive argument on your behalf and it is highly advisable that you do not undertake an appeal, or seek leave to appeal, without guidance and representation from an experienced criminal lawyer.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.