Appeals Against Sentence

An appeal is a request made to a higher court to review and change the decision of the original court.

In Victoria, the prosecution may appeal against the sentence, while the defence may appeal against the conviction, the sentence or against both the conviction and the sentence.

The Criminal Procedure Act 2009 governs the process of appeals against sentences in the Magistrates', County, and Supreme Courts.

Appeals from the Magistrates' Court

A person sentenced in the Magistrates' Court may appeal against his or her sentence to the County Court. The Director of Public Prosecutions (DPP) may also appeal against a Magistrates’ Court sentence to the County Court if satisfied that it is in the public interest. These appeals are conducted as a full rehearing of the matter.

In some circumstances, a person sentenced in the Magistrates' Court can appeal to a single judge of the Supreme Court on a question of law.

Appeals from the County and Supreme Courts

A person sentenced in the County Court or in the Trial Division of the Supreme Court can apply to the Court of Appeal for leave (permission) to appeal a sentence. This application for leave to appeal is normally heard by a single Judge of Appeal. The application may be refused if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the original sentence.

The DPP does not generally need leave to appeal against a sentence imposed by the County or Supreme Court. The DPP can appeal against a sentence imposed in the County or Supreme Court if the Director considers that an error was made in the original sentence and that a different sentence should be imposed. The Director must also be satisfied that bringing the appeal is in the public interest.

The Court of Appeal, normally comprising two or three Judges of Appeal, conducts hearings of prosecution and offender sentence appeals. In some cases, five judges may hear the appeal.

The Court of Appeal will review the sentence and determine whether the judge who originally sentenced the offender has made an error.

In determining whether a sentencing error has been made, the Court of Appeal considers such matters as:

  • 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.

The Court of Appeal may identify a specific error in the original sentence, for example, the sentencing judge’s failure to have regard to a sentencing factor required by the law. Alternatively, the Court of Appeal may assume an error has been made on the basis that the result imposed by the original sentencing judge is plainly unreasonable or unjust.  

If the Court of Appeal decides that an error has been made and that the offender should receive a different sentence, it will allow the appeal. It can then set aside the original sentence and either impose a new sentence or send the matter back to the original sentencing court for the offender to be resentenced.

If a person appeals against a sentence of imprisonment, that person can make an application to be released on bail. However, bail pending appeal is only granted in exceptional circumstances.

Time Limits for Lodging Appeals

An appeal from the Magistrates' Court to the County Court must be lodged within 28 days from the date of the original sentence. The same time limit applies to appeals from the County Court or the Trial Division of the Supreme Court to the Court of Appeal.

Procedural Requirements for Lodging Sentence Appeals

In 2011, the Court of Appeal reformed procedures for criminal appeals to streamline the process for hearing appeals and to reduce the backlog of pending appeals.

These procedural reforms included:

  • strict requirements about the material to be filed when an appeal is lodged
  • the introduction of active case management by specialist personnel prior to the Court of Appeal hearing the appeals.

These requirements apply to all applications for leave to appeal against sentence or conviction lodged on or after 28 February 2011.

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