An appeal is a request made to a higher court to review and change the decision of the original court. Appeals are governed by the Criminal Procedure Act 2009 (Vic).
In Victoria, sentences imposed by courts can be appealed by both the prosecution and the offender. Convictions can only be appealed by the offender.
Appeals from the Magistrates' Court
A person sentenced in the Magistrates' Court may appeal against their 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 currently conducted as a full rehearing of the matter. However, new legislation will soon require the County Court to determine the appeal based on the transcript of evidence and the submissions made during the original hearing in the Magistrates’ Court. Sentence appeals will then only be considered if the County Court determines that there is a compelling reason to impose a different sentence.
Appeals from the County and Supreme Courts (the Higher Courts)
A person sentenced in the County Court or Supreme Court can apply to the Court of Appeal for leave (permission) to appeal a sentence. The application may be refused if there is no reasonable prospect of the Court of Appeal imposing a less severe sentence than the original sentence.
The Director of Public Prosecutions does not generally need leave to appeal a sentence. The Director can appeal against a sentence imposed in the higher courts if they consider that:
- an error was made in the original sentence and
- 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 hears prosecution and offender sentence appeals. Normally, two or three Judges of Appeal will hear the appeal. In some cases, five Judges of Appeal may hear the appeal. The Court of Appeal will review the sentence and determine whether the court that 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.
Court of Appeal decisions are published on the Australasian Legal Information Institute (AustLII) website.
We have examined sentence appeals in Victoria and released the findings on our website.
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