6 / 6 / 2022

Severity Appeals from the ACT Magistrates Court 

If you have been convicted and sentenced for a criminal offence in the summary jurisdiction of the ACT Magistrates Court, there is a statutory right to appeal your conviction and/or your sentence to a single judge of the ACT Supreme Court.

An appeal against sentence is made pursuant to s 208 of the Magistrates Court Act. An appeal from the Magistrates Court will be based on the same evidence which was available to the Magistrate at the first hearing, and it may also include any further evidence that the Supreme Court allows. It is not a new hearing, and requires the appellant to establish a legal, factual, or discretionary error in the Magistrates Court which led to the Magistrate’s orders being challenged on appeal.

If the Supreme Court agrees that there was an error in the Magistrate’s decision, and decides that it is necessary to proceed to re-sentence, it has the power to reduce the sentence, or impose the same sentence that was imposed by the Magistrates Court. It also has the power to increase the severity of the sentence that was originally imposed, however, if the Supreme Court considers that there is a practical (as opposed to a theoretical) possibility that the sentence could be increased, a warning should be given to a person appealing before the appeal proceeds.

Grounds of Appeal

In an appeal against a sentence, the errors that are alleged to have occurred need to be identified in the ‘grounds’ of the appeal. Some examples of errors that may occur in the sentencing process may be that:

    1. The Magistrate did not have regard to a relevant consideration, or had regard to an irrelevant consideration. An example of a relevant circumstance may be a person’s physical or mental condition, or a particular hardship that they may suffer due to the imposition of the penalty.
    2. The Magistrate relied on evidence that should have been ruled inadmissible.
    3. The Magistrate did not accept that there was a mitigating circumstance (something that should have lessened the penalty), when they should have done so.
    4. The Magistrate made a finding that a fact or circumstance was aggravating (something that increased the penalty), when they should not have done so.
    5. There was a failure to accord the person being sentenced procedural fairness.
    6. That the sentence was manifestly excessive in all of the circumstances (that is, taking all things into account the sentence was evidently incorrect and outside of the available range).

Specific Error 

The Court can intervene and impose a different sentence if it comes to the conclusion that the Magistrate has erred by making a mistake about the application of the law in your matter, or misunderstood the facts in your matter, or failed to take an important consideration into account when determining what the sentence will be.

The Magistrate may have also made a mistake by making a decision on the basis of a wrong principle or in another manner that was clearly legally incorrect. These errors are known as ‘specific’ errors.

Procedural Fairness

A Magistrate, and all other judicial officers, must afford procedural fairness to those who come before the court for sentence. Where an appellate court has determined that there has been a failure to do so by the sentencing court, the appeal should be allowed and re-sentencing should take place even where it is likely the denial of procedural fairness did not affect the result.

A Manifestly Excessive Sentence

It may also be possible to appeal the severity of a sentence where the sentence appears to be ‘manifestly excessive in all of the circumstances.’ However, it is well-established that an appeal court cannot allow an appeal against sentence simply because it disagrees with the sentence that was originally imposed. When an appeal court is looking at whether a sentence is “manifestly excessive”, the test is whether, in the appeal court’s assessment, the sentence is “unreasonable or plainly unjust”. However “manifest excess” cannot be established only because the appeal court judge, or judges would have imposed a more lenient sentence.

A situation where a manifestly excessive sentence might occur is where a sentence is being imposed for a number of different offences at the same time, and there has been a lack of consideration of the collective effect of all of the sentences together. This might lead to an overall sentence which an appeal court will conclude is unreasonable, because it is manifestly too long to reflect the total criminality of the conduct or facts associated with the offences.

A sentence appeal brought on the basis that a sentence is manifestly excessive can be challenging. This is because a Magistrate or a Judge has a wide discretion as to how long a custodial sentence will be, and the way that the sentence is to be served (for example, a sentence may be served in full-time custody, as a suspended sentence or intensive correction order in the community, or through a diversionary sentencing option like the Drug and Alcohol Sentencing List).

When deciding whether a sentence is “manifestly excessive”, the appeal judge will look at the maximum penalty that applies to the “worst possible case”. The maximum penalty becomes a “yardstick” for assessing the appropriate penalty.

The ‘objective seriousness’ of the particular offence or offences, the subjective circumstances particular to the person being sentenced, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act such as deterrence and protection of the community on the one hand, and rehabilitation on the other) and usual sentencing patterns for the type (or types) of offence type also important considerations when an appeal court is deciding whether a sentence that has been imposed lies within, or outside of the available range.

Appealing against a sentence is a complex process and involves a number of administrative steps and deadlines.  If you have been convicted and sentenced by the Magistrates Court, there are a number of ways in which you can potentially exercise your right to appeal that sentence to the Supreme Court.

It is important to avoid any delays in seeking legal advice from an expert criminal defence lawyer from Hugo Law Group on whether there are prospects that an appeal will be successful, as the notice of appeal should be filed and the appeal therefore commenced within 28 days following the sentence, conviction, or other penalty being imposed by the Magistrates Court.

Max Haesler, Lawyer

1 Barron v Laverty [2019] ACTSC 198.
2 Lukatela v Birch [2008] ACTSC 99 at [19].
3 See, eg, SBT v Colvin [2021] ACTCA 40
4 House v The King (1936) 55 CLR 499 (House v The King); Peverill v Crampton [2010] ACTSC 79 at [24].
5 Pantorno v The Queen [1989] HCA 18, 166 CLR 466.
6 O’Neil-Shaw [2010] NSWCCA 42 at [31].
7 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6].
8 R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaar v The Queen [2012] ACTCA 26 at [61].
9 Dawson v The Queen [2019] ACTCA 9 at [42]-[43].
10 Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].