Pleading guilty doesn’t mean you don’t deserve justice.
Garde Wilson Lawyers fights to ensure you’re treated fairly in court. Find out how we can protect you from harsh and severe sentencing.
If your last criminal lawyer didn’t work hard enough, or you’ve been singled out by a Melbourne judge for severe or harsh sentencing, Garde Wilson Lawyers is here to take the fight on and win you back your freedom.
In Victoria, any person found guilty and sentenced has the right to apply for an appeal against the sentence ordered by a court.
Appeals are governed by the Criminal Procedure Act 2009 (Vic) which sets out the rules determining the conditions and process for making an appeal against a sentence.
Recent changes to the appeals process mean it’s harder than ever to successfully appeal a sentence. At Garde Wilson, all our lawyers are criminal law experts with decades of experience challenging harsh sentences and securing justice for our clients.
If you’ve been let down by your lawyer or believe you’ve been treated unfairly in court, call Garde Wilson Lawyers immediately on 03 9098 8648 for a free case assessment and consultation.
Sentence Appeals from the Magistrates Court to the County Court
Magistrates’ Courts are the turnstiles of the criminal justice system; rushed and impersonal, high pressure environments where judges must make decisions rapidly to get through their daily overload of cases.
It’s no wonder unfair sentences are handed down.
If you have been found guilty of a criminal offence in a Magistrates’ Court in Victoria and you believe the sentence imposed by the judge is excessive, harsh or unfair, you can request an appeal to the County Court of Victoria under Section 254 of the Criminal Procedure Act
If the Magistrates’ Court imposed a custodial sentence, to secure your freedom of movement and avoid prison while your appeal is being considered and heard, you must make an application for appeal bail.
Is there a time limit on making an Appeal to the County Court?
Under Section 255 of the Criminal Procedures Act, you have 28 days to lodge a ‘Notice of Appeal’ against a sentence at the Magistrates Court Criminal Registry. Once lodged, you then have 7 days to notify the police officer who initiated the original charges.
In addition to the ‘Notice of Appeal’, a ‘Summary of Appeal’ presenting to the court your reasons for challenging the Magistrates’ Court sentence must be lodged with 28 Days of the ‘Notice to Appeal’.
Submitting an appeal application is a very complicated process. Improperly completed appeal paperwork will result in the refusal of your appeal application, further running down your deadline and adding to your stress. Thus, it is vital you enlist a criminal law expert with significant criminal procedure knowledge and experience to do this application for you.
Can I make an appeal to the County Court after the time limit has expired?
Once the 28 day limit imposed by the Criminal Procedure Act has passed, an application for leave to appeal may be made to the County Court. This is a request to the County Court to give special consideration to hear the appeal because of delays in filing due to exceptional circumstances.
In deciding whether to accept the application for leave to appeal, the court will determine whether the reasons offered for requiring leave to appeal out of time are valid and sufficiently exceptional. The longer the time period between the lapsing of the 28 day limit and the application for leave to appeal, the more exceptional your circumstances must be.
What happens if my appeal to the County Court is rejected?
Applying for an appeal against sentence to the County Court does not mean it will be automatically accepted. Under new rules governing appeals to the County Court, applications for appeal will only be granted where there is a ‘compelling reason’ to change your sentence.
Sentencing appeals will only be considered where you are able to show the sentence imposed by the Magistrates’ Court was clearly harsh and excessive.
If your application for appeal does not meet these new thresholds, the sentence handed down by the Magistrates’ Court may be enforced. If it was a custodial sentence, and you had been granted appeal bail, a warrant to imprison you may be issued.
What happens at an appeal hearing?
In the past, appeal hearings involved both parties presenting their arguments and evidence in full from the beginning. However, due to changes to the Criminal Procedure Act which came into force on 3rd July 2021, this is no longer the case.
To reduce the burden on witnesses and victims who were required to give their evidence again during appeal proceedings, as well as the time and resources of the court, sentence appeals will be determined on evidence and materials before the Magistrates’ court.
Now, appeals will be decided using transcripts of the original hearing and new evidence will only be considered where the County Court allows it in the interests of justice.
Also, where prior to 3rd of July 2021, the Magistrate’s original decision was not considered by the County Court when determining an appeal, it is now taken into account and their reasoning will inform the appeal judge’s decision.
What happens if my appeal is unsuccessful?
The new limitations and changes introduced by the recent changes to the appeals process mean many of the penalties for failing to present a strong enough case for your sentence to be reconsidered are no longer a threat.
Previously, the County Court could impose hefty court costs on you if the court determined your appeal to be frivolous or an abuse of the appeal system.
Now, weak appeals without a decent chance of succeeding are filtered out prior to being heard by the Court and their applications are simply not accepted.
If, after your appeal is granted and heard, the County Court decides that the Magistrate’s decision was fair, the original decision will be upheld and enforced.
What happens if my appeal is successful?
Ultimately, the objective of an appeal is to obtain a fairer sentence for you. While these new restrictions will limit the number of appeals brought before the County Court, it does mean those granted have a better chance of success.
If you appeal is granted and is successful, the original harsh sentence imposed by the Magistrates’ court may be set aside, and a new, more lenient sentence will be handed down by the County Court.
Sentence Appeals from the County Court and Supreme Court
A person sentenced in the County or Supreme Courts has the right to apply to the Court of Appeal under Section 278 of the Criminal Procedure Act.
As with the new rules governing appeals from the Magistrates’ to County Court, the application to appeal a sentence made to the Court of Appeal will only be considered if there is a reasonable prospect of a more lenient sentence being imposed.
In accordance with the new rules governing appeals, in addition to the application (called a leave to appeal) within 28 days of the original sentence, fully written submissions – detailed presentations of legal arguments supporting your appeal – must be included.
Cases granted an appeal from the County or Supreme Courts to the Court of Appeal are heard before two, three or five judges, depending on the nature of the case and the severity of the charges. The court will re-examine the sentence handed down by the County or Supreme Court and decide whether a sentencing error has been made.
In determining whether the original court made a sentencing error, the Court of Appeal will consider:
- The maximum sentence available to the original sentencing judge
- How the original sentencing judge exercised the sentencing discretion
- Other sentences in similar cases
- The seriousness of the offence
- The personal circumstances of the offender
- Is the sentence reasonable and just?
If the Court of Appeal finds that an error has been made, it will allow the appeal and set aside the original sentence. It will then either impose a new sentence, or send the matter back to the original sentencing court to be resentenced.
Appeal applications from the County and Supreme Court are incredibly complex and demand the highest possible knowledge of criminal law procedure. Garde Wilson Lawyers possess detailed knowledge of the appeals process, and have a track record of successfully seeking appeals for sentences from the County and Supreme Courts for the most serious of criminal charges.
DON’T TAKE IT LYING DOWN!
If you’ve been sentenced harshly or treated unfairly in court, contact Garde Wilson Lawyers immediately to discuss how we can protect your freedom and ensure justice for you.
CONTACT US ON 03 9098 8648 FOR A FREE CONSULTATION WITH A CRIMINAL LAW EXPERT.