Appeals from the Local Court against sentences, such as the length of imprisonment and severity, and appeals against conviction are heard in the District Court of NSW.
The Legal aid NSW has drafted a summary of what you should be looking out for when lodging an appeal.
How Long do I Have To Appeal The Decision Of The Magistrate?
An Appeal against the decision of a Magistrate in Local Court criminal proceedings must be commenced within 28 days of that decision. The appeal is then statute barred which means that after 3 months you will need to show there are special circumstances to allow an appeal to be made. Leave to appeal after three months will only be granted if it would prevent a ‘substantial injustice’ from occurring.
How do I Commence an Appeal?
An appeal is commenced by the appellant (convicted or sentenced person) by filing and serving a notice of appeal. Our lawyers at National Criminal Lawyers™ can assist you in this process.
Severity Appeal
If, after being found guilty or plead guilty you believe the sentence that was imposed was too severe/excessive, you may make an application for a severity appeal to be listed before the District Court of NSW. The District Court Judge will reassess the sentence imposed by a Magistrate.
Allowable Evidence in a Severity Appeal
In a severity appeal the Judge may also hear evidence from you in person, as well as submissions made by both the representatives from the DPP and on your behalf.
If a defendant is appealing against a custodial sentence (including home detention or an intensive correction order, the question of bail will need to be considered. If you received a sentence of imprisonment, including home detention, you may apply to be released on bail until you appear at the District Court. You can make an application for bail at the Local Court on the same date as you are sentenced and lodge your appeal or you can make it later at the gaol.
In a severity appeal you must show either an exceptional circumstance or other reason the penalty was too severe.
A Magistrate who convicts you in the Local Court may be the subject of an appeal to the District Court. An appeal may be commenced both in relation to the final judgment of the Magistrate and any order made by the Magistrate during the proceedings. You do not have the right to appeal a conviction if you were absent when the case was heard, or if you pleaded guilty
The District Court Judge who hears your appeal will not start the case from scratch –they will be going off the transcript of the original case, heard before the Local Court Magistrate.
In a conviction appeal this means you will need leave of the court to bring in any new evidence. Also in a conviction appeal it is necessary for you to show some error by the Magistrate. Once an error is established, the Judge can make any order that the Magistrate could have made including upholding the appeal or dismissing the appeal.
Conviction and Severity appeals are not inexpensive. There is a filing/hearing fee for an individual to commence the appeal plus legal costs. To discuss your options in a free consultation with Liverpool Criminal Lawyers. The prescribed fee is currently $102 for an appeal against one conviction or sentence, and $158 for more than one offence arising from the same court appearance. The Criminal Procedure Regulation 2010 provides that the fee may be waived, remitted or postponed. The fee is usually remitted as a matter of course for children or people in custody. It will usually be remitted in cases of financial hardship if the appellant provides details of his or her financial situation. Local Court registry staff have apparently been directed to ensure that no-one is denied access to appeal rights because of inability to pay the fee.
The principal Act that govern criminal appeals in NSW is the Crimes (Appeal and Review) Act 2001 (NSW) (CARA).
At National Criminal Lawyers™ we also represent clients in Licence and other Appeals including Disqualified Driver Applications, Habitual traffic offenders appeals and Licence appeals – P Plate suspensions and Speeding suspensions. For more information, please click here
If you have a matter wherein you have been convicted in the Local Court and would like to appeal contact our Team at National Criminal Lawyers™ we are well versed and specialists in obtaining favourable outcomes.
Why National Criminal Lawyers?
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If you have been charged with any Criminal offence our Team at National Criminal Lawyers are well-versed and specialists in addressing on penalty and otherwise achieving favourable outcomes.
Please contact us for more information about your options.