Severity Appeals: I Need to Appeal Because the Penalty Was Too Harsh

The general deadline for lodging a severity appeal is 28 days after the sentencing date.

However, that deadline may be extended to 3 months if there were good reasons for the delay eg you were ill and hospitalised or were otherwise unable to lodge the appeal within the general timeframe.

The appeal hearing will normally occur within a month of the appeal being filed.

At the hearing, the District Court Judge will read a ‘sentencing bundle’ tendered by the prosecution.

That bundle will have a cover sheet stating the charge/s, the penalty imposed by the Local Court, the applicable maximum penalties etc.

The bundle will also contain the Court Attendance Notice, various court papers and any reports and/or character references tendered in the Local Court.

After that bundle is read, your criminal lawyer can:

1. Call you to the witness stand and ask you questions, eg why you need to remain conviction-free or have your licence back; and/or
2. Make verbal submissions on your behalf; and/or
3. Tender any additional materials on your behalf eg additional character references, reports etc.

You don’t have to take the witness stand if you feel uncomfortable or nervous; your criminal lawyer can do the talking for you.

Also, some Judges like to hear from people on the witness stand whereas others prefer to hear from your criminal lawyer only.

It pays to know the Judge and what he or she likes.

The Judge will then decide whether to give you a lesser penalty or to confirm the Local Court penalty.

The good thing is that the Judge cannot give you a worse penalty unless he or she warns you that this is about to occur and you nevertheless continue with the appeal.

This is called a ‘Parker warning’.

Experienced criminal lawyers will always know when the Judge is giving a ‘Parker warning’ and will immediately obtain your instructions to withdraw the appeal.

So in practice, you can only get the same sentence or a better sentence.

If you feel that the sentence imposed by the District Court was too severe, you should obtain advice from experienced criminal lawyers about your prospects of successfully appealing against the sentence.

District Court sentences can be appealed the the New South Wales Court of Criminal Appeal (or the NSWCCA) which is a division of the Supreme Court.

These appeals can be successful if the NSWCCA is persuaded that the sentence is manifestly excessive, in other words way too harsh.

A Notice of Intention to Appeal must be filed within 28 days of the District Court sentencing, which starts from the day on which a person is sentenced.

The court can exercise its discretion to grant ‘leave’ (permission) to extend the time for filing a Notice of Intention to Appeal, or decide there is no need for the notice to be filed, if the extension or time or dispensation is in the interests of justice.

A Notice of Appeal will have to be filed within 12 months thereafter and the NSWCCA will give a timetable for the filing of Grounds of Appeal by the Appellant (you) and Written Submissions by the Appellant and Respondent (the other side).

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

1. Confirm the District Court sentence, or
2. Impose a lesser sentence, or
3. Impose a greater sentence.

It is vital to seek advice from criminal lawyers who are experienced in NSWCCA appeals before deciding whether or not to appeal your matter.

Sydney Criminal Lawyers® is vastly experienced and highly successful in representing clients in NSWCCA Severity Appeals.

We can accurately advise you of your prospects and provide you with outstanding representation throughout the appeal process.