Criminal Appeals

A severity appeal, also known as a sentence appeal, is an appeal against the severity (i.e. harshness) of a sentence that has been imposed. 

To file a severity appeal, the following must be satisfied:

• You have completed the ‘Notice of Appeal to the District Court’ form and lodged it at either the Local Court Registry or with the of officer in-charge of the Correctional Centre in which you are serving your sentence AND
• The lodgement of this appeal is done within 28-days after the sentence was imposed by the Local Court.

• Once you have lodged an appeal against the severity of your sentence, the District Court Registry will notify you and the relevant parties of the date and the location where the appeal will be heard.
• You or your solicitor will then attend the District Court Registry to obtain a copy of the documents that will be provided to the Judge (this may include a copy of the Local Court transcript).
• If you wish to tender documents, you should provide the DPP solicitor with a copy of those documents before the Court. You may wish to provide the Judge with personal documents such as medical/rehabilitation reports and character references.
• You may also wish to call a witness. If this is the case, you will be required to file a Notice of Motion and an Affidavit outlining why your witness was not available to provide their testimony during the Local Court proceedings.
• This is a complex process and it is recommended that you seek legal assistance.

When your appeal is before the Court, you can expect the matter to proceed as follows:

• The prosecutor will tender the police fact sheet, your criminal and traffic record as well as the Local Court records. He or she will then inform the Court of the sentence you received and the maximum penalty for the offence which you have been convicted of.
• You will then be provided with an opportunity to make your case. During this time, you may wish to tender documents (such as character references, medical reports, etc.). You will then explain through your submissions why believe the penalty imposed by the Local Court was severe. You may wish to give evidence or call a witness to evidence. If you or a witness testifies before the Court, the Prosecutor may cross-examine witnesses called by the defence (this includes yourself).
• The Judge will then decide the outcome of the appeal.

Q: Can I lodge an appeal application after the 28-day period?

A: An appeal may be lodged after the 28-day period however, you will need to seek leave of the Court. An application will be rejected if it is lodged 3 months after the sentence was imposed by the Local Court.

Q: What will happen to my sentence once I lodge an appeal?

A: Once a severity appeal has been successfully lodged, the sentence imposed by the Local Court will be stayed (i.e. the sentence will be temporarily put on hold until the matter is finalised). However, the following exception applies:

• If the Court refuses to grant you bail once you have filed your Notice of Appeal, your sentence to a term of full-time imprisonment will continue (i.e. it will not be stayed).

Q: Can I get a worse outcome?

A: Yes, it is possible that you may be given a more severe outcome. However, the Judge will need to issue a Parker warning. A Parker warning is a warning that the Judge is considering to increase the penalty. Once the warning has been issued, you may withdraw the appeal. If you withdraw the appeal, the Judge cannot increase the penalty and the Local Court order(s) will remain in force.

Q: What decision can the Judge make?

A: The Judge may either dismiss the appeal (i.e. the Local Court order(s) will be upheld and continue to have effect) or Judge may set aside and vary the sentence.

1. For most cases, there is no automatic right of appeal to the Supreme Court. You will need to seek the Court’s permission before they will hear your appeal.
2. You do not need to seek the permission of the Court if you are appealing on the basis that the District Court Judge misinterpreted the law.
3. An appeal to the Supreme Court must be lodged within 28 days of the decision of the District Court.

The process of appealing to the Court of Appeal is quite complex and you will require legal assistance.

If your appeal does not involve a question of law, you will need to seek the Court’s permission before they will hear your appeal.

You will need to file a Summons Seeking Leave to Appeal and at least four copies of a White Folder.

The White Folder must contain a copy of the Summons seeking leave to appeal, a draft Notice of Appeal, a Summary of Argument and a copy of the reasons given by the Court or Tribunal for the decision being challenged and any other necessary documents.

If you appeal involves a question of law, you will need to file a Notice of Appeal.

You must serve the other party with a copy of the sealed copy of the appeal you received from the registry.

You must also serve the Court or Tribunal that you are appealing from with a copy of the sealed copy of the appeal.

You must file written submissions within six weeks of the Notice of Appeal being filed. Written submissions are an outline of the arguments you wish to present at the Court.

The appeal process for civil proceedings is similar to criminal proceedings. The Judges presiding over your matter will read the material and request both parties to make oral submissions.

The Court may either deliver their judgement immediately or reserve their judgement to be delivered on another day.

The Court of Appeal can:

• set aside the judgment
• set aside the judgment and return it to the District Court for redetermination
• vary the judgment
• dismiss your appeal.

A severity appeal, also known as a sentence appeal, is an appeal against the severity (i.e. harshness) of a sentence that has been imposed. 

The process of appealing to the New South Wales Court of Criminal Appeal is quite complex and you will require legal assistance. Once sentenced, you will have a period of 28-days to lodge a Notice of Intention to Appeal. Once this is lodged, you will have a period of 6 months to file a Notice of Appeal. The Notice of Appeal must be accompanied by:

• A statement of grounds for appeal,
• Written submissions,
• A statement nominating the Solicitor and Counsel with carriage AND
• A Rule 23C Certificate (i.e. a certificate of availability of the trial Court transcript and exhibits).

During that six-month period, you can expect your solicitor to do the following:

• Contact the (District or Supreme) Court Registry to obtain trial exhibits and transcripts (including submissions, judgments, summing-up and remarks on sentencing).

Once these documents have been received, your solicitor will then brief Counsel. Counsel will then advise on the merits of your appeal. If the advice is to proceed with the appeal, Counsel will outline the grounds of appeal and prepare the written submissions.

Once your Notice of Intention to Appeal has been lodged, you are provided with a 6-month period to prepare for your matter before lodging a Notice of Appeal. During that six-month period, you can expect your solicitor to do the following:

• Contact the (District or Supreme) Court Registry to obtain trial exhibits and transcripts (including submissions, judgments, summing-up and remarks on sentencing).
• Once those documents have been received, your solicitor will then brief Counsel. Counsel will then advise on the merits of your appeal. If the advice is to proceed with the appeal, Counsel will outline the grounds of appeal and prepare the written submissions.

The request to obtain trial documents is lengthy, if extended delays are expected, your solicitor will lodge an application for an extension (‘Form VF’).

When the matter is before the Court, the Judges presiding over your matter will have read and familiarised themselves with the material. Their Honours will then request Counsel (both Prosecution and Defence) to make oral submissions and this may include addressing specific points made in the appeal papers.

The Court may either deliver their judgement immediately or reserve their judgement to be delivered on another day.

Q: Can I lodge the Notice of Intention to Appeal after the 28-day period?

A: If the 28-day period has lapsed, you will be required to file a Notice of Intention to Appeal along with a ‘Notice of Application for Extension of Time for Notice of Intention to Appeal’ (NAET). The NAET will require you to explain why a Notice of Intention to Appeal was not lodged earlier.

Q: What will happen to my sentence once I lodge an appeal?

A: Once an appeal has been successfully lodged, the sentence imposed by the trial Court will be stayed (i.e. the sentence will be temporarily put on hold until the matter is finalised). However, the following exception applies:

• If the Court refuses to grant you bail once you have filed your Notice of Appeal, your sentence to a term of full-time imprisonment will continue (i.e. it will not be stayed).

Q: Can I get a worse outcome?

A: Yes, it is possible that you may be given a more severe outcome. However, the Court will need to issue a Parker warning. A Parker warning is a warning that the Court is considering to increase the penalty. Once the warning has been issued, you may withdraw the appeal. If you withdraw the appeal, the Court cannot increase the penalty and the order(s) of the trial Court will remain in force.

Q: What decision can the Court make?

A: The Court may either:

• Find that there was no error and dismiss the appeal,
• Find that there was an error but dismiss the appeal if another sentence was not warranted OR
• Allow the appeal, and re-sentence you.

On what grounds can I appeal the severity of my sentence?

A: In order to appeal the severity of your sentence, you must have grounds for that appeal. These grounds include:

• An error of law, that is, during your trial, the Judge incorrectly applied the law, resulting in a manifestly excessive sentence.
• Miscarriage of justice, that is, you did not receive a fair trial due to an irregularity in your proceeding which resulted in a manifestly excessive sentence.