What is a Severity Appeal in New South Wales?

An elite cyclist has had his convictions overturned in the District Court of New South Wales after initially pleading guilty in the Local Court to assaulting two teenage girls following a ‘knock and run’ prank.

27-year old Dutch cyclist Mathieu van der Poel was staying at the Novotel Hotel on Brighton Beach on the evening of 24 September 2022 ahead of the next morning’s Wollongong world championship road race when the girls, aged 13 and 14, repeatedly knocked on his door before running away.

On the final occasion, Mr van der Poel opened his door and chased the girls into their room where he pushed one of them against a wall and squeezed the other’s arm.

Police were called and arrived at the hotel shortly before 11pm on the night. 

They arrested the cyclist and conveyed him to Kogarah Police Station where he was formally charged with two counts of common assault; which is an offence under section 61 of the Crimes Act 1900 carrying a maximum penalty of two years in prison and/or a fine of $5,500.

They confiscated the cyclist’s passport.

The cyclist pulled out of the next day’s event after about 45 minutes, having had very little sleep the previous evening and being distressed by the night’s events.

He had been one of the favourites to take out the title.

Pleas of guilty, sentence and appeal

He pleaded guilty to both charges in the Local Court and received a criminal conviction and $1500 fine for each offence.

He then filed an appeal against the severity of his sentences, known as a ‘severity appeal’, in Sydney’s Downing Centre District Court.

Before the District Court

The matter ultimately came before his Honour Judge Ian Bourke SC in that court on Tuesday, 13 December 2022, who heard submissions about the stress and anxiety experienced by Mr van der Poel due to the relentless conduct of the unsupervised teens, in circumstances where the appellant had an important commitment the next day.

Submissions were also made regarding the ‘exceptional embarrassment and humiliation’ suffered by Mr van der Poel as a result of being charged with criminal offences, having passport his confiscated as part of conditional bail and being therefore unable to travel, and the potential impact of having criminal convictions recorded against his name in terms of both travel and reputation.

The court further heard the teens’ actions were done ‘deliberately to bait… [Mr van der Poel] and wind him up’ and the appellant ‘fall into the trap’.

The Judge described the actions of the teens as ‘annoying and invasive’ and ‘silly conduct by unsupervised children’. 

He accepted that it amounted to ‘extreme provocation’ and noted that Mr van der Poel had suffered ‘very significant extra curial punishment’ ; in other words, punishment over and above that which is delivered by the courts.

Appeal allowed

His Honour ultimately agreed that the penalties imposed in the Local Court were too severe and allowed the appeal, exercising his discretion under section 10(1) of the Crimes (Sentencing Procedure) Act 1999 to dismiss each of the charges.

Mr van der Poel therefore remains conviction-free and can get on with his career and life without the burden of assault convictions being recorded against his name.

Severity appeals in New South Wales

A person who believes the initial penalty imposed by a court for a criminal offence is too harsh can appeal against the severity of their sentence.

The most common such appeals are from the Local to the District Court, or from the District to the New South Wales Court of Criminal Appeal.

Severity appeals from the Local to the District Court in New South Wales

Severity appeals from the Local to the District Court are known as hearings ‘de novo’ – or new hearings.

This means the appellant does not have to demonstrate that the Local Court made an error of law, that a miscarriage of justice occurred or that there was any other form of legal, factual or procedural mistake; the District Court will hear the case afresh and make its own decision about whether the initial penalty was too harsh.

Timeframe to file appeal

The period for filing the appeal is 28 days from the date of the Local Court sentencing hearing.

However, this can be extended to up to three months from the date of the Local Court sentencing hearing if the ‘leave’ (permission) of the District Court is obtained.

The application for ‘leave’ is normally heard on the same day and immediately preceding the scheduled appeal itself.

An application for leave will be granted if the extension of time is ‘in the interests of justice’.

District Court appeal hearing

At the appeal hearing, the prosecution (normally a solicitor from the DPP) will hand an ‘appeal bundle’ up to the judge – which will include the appellant’s criminal record, court attendance notice, the ‘facts’ of the case, any materials handed up in the Local Court (such as character references, letter of apology, any medical materials etc).

The defence can also hand up any additional documents for the judge to consider.

In more serious cases, the defence may call the client or any other defence witnesses to ‘give evidence’ – which means to put them on the witness stand and ask questions.

If this occurs, the prosecution will also have the opportunity to ask any questions.

Once all of this occurs, both the defence and the prosecution will have the opportunity to make ‘submissions’ – which means talk to the judge about the case with a view to persuading him or her to reach a certain outcome.

A defence lawyer may submit written submissions and/or follow these up with oral submissions, or make oral submissions only. This will often depend on the nature and complexity of the case, as well as the outcome sought.

After all of this occurs, the judge will decide whether to uphold the appeal and impose a lesser sentence (which may include a ‘non conviction order) or refuse the appeal and confirm the penalty imposed in the Local Court.

Parker warnings

It is important to be aware that the District Court judge is only permitted to impose a penalty that is harsher than that which was imposed in the Local Court if he or she first gives the defence what is known as a ‘Parker warning’.

There is no prescribed way of giving such a warning, but it will normally takes the form of something like,

• ‘I am considering a harsher penalty. Are you sure you wish to proceed with the appeal?’, or
• ‘I am of the view the Local Court penalty was too lenient. Are you sure you want to proceed?’.

If a Parker warning is given, it is normally prudent to withdraw the appeal at that stage; however, there are exceptions to this rule.

One of these exceptions is if the judge indicates that he or she wishes to increase the prison term imposed in the Local Court (eg from 8 months to 12 months) but deal with it by way of an alternative to a full time custodial sentence (eg impose an Intensive Correction Order rather than a full time prison sentence).

In practice, the existence of Parker warnings means that an experienced lawyer will be able to ensure that his or her client will never receive a harsher sentence than that which was imposed in the Local Court.

Appeals from the District Court to the New South Wales Court of Criminal Appeal 

A person who was initially sentenced in the District Court and believes the penalty imposed was too harsh can appeal the severity of that sentence to the New South Wales Court of Criminal Appeal (or the NSWCCA), which is a division of the state’s Supreme Court.

The appeal will succeed if the court is persuaded that the sentence imposed was ‘manifestly excessive’, in other words significantly harsh.

Judges sitting in the Court of Appeal do not need to give a Parker Direction before imposing a harsher sentence. As such, there are higher risks in appealing to the Court of Appeal.

Timeframe to file appeal

A Notice of Intention to Appeal will need to be filed within 28 days of the final District Court sentencing hearing; in other words, the date when the penalty was handed down.

A Notice of Appeal will then need to be filed within 6 months thereafter and Grounds of Appeal will also need to be filed, which are the reasons for believing the appeal was too harsh, as well as written submissions in support of those grounds.

The respondent (normally the Office of the Director of Public Prosecutions, or DPP) will be directed to file its response to those grounds and submissions.

NSWCCA appeal hearing

The matter will ultimately be set down for a hearing at which time verbal submissions can be made by both parties and the court will either:

1. Confirm the District Court sentence, 
2. Set aside the District Court sentence and impose a lesser penalty, or
3. Set aside the District Court sentence and impose a greater penalty.

No Parker warning required 

Unlike in the District Court, the NSWCCA will not need to give a Parker warning and can impose the penalty it sees fit in the circumstances.

Considering a severity appeal?

If you believe your initial penalty was too harsh, it is important to seek advice from specialist appeal lawyers who are experienced in thoroughly preparing and persuasively presenting these cases in the higher courts, and who have a proven track record in having appeals upheld and convictions overturned by convincing courts to impose ‘non-conviction orders’, or achieving significantly more lenient penalties than those originally set down.

The specialist criminal defence team at Sydney Criminal Lawyers has decades of specialist experience taking cases over at the appeal stage, and formulating and executing appeal strategies that consistently achieve exceptional results.

So if you are considering an appeal to a higher court, call us anytime on (02) 9261 8881 and arrange a conference with one of our experienced, specialist appeal lawyers.