Court of Appeal – Appeal Against Sentence

This is a two step process. Firstly there is the process known as section 582 hearing under the old act and may be called a section 278 or section 280 hearing under the new Criminal Procedure Act 2009. This is a initial filtering process for the Appeal.

Then if you get past that first hearing you go onto a full hearing of the matter.

In detail the appeal against sentence process is ;

1. You have 28 days in which to file a notice of application for leave to appeal against sentence. The application for leave to appeal against sentence is the starting point of the appeal against sentence.
An appeal against sentence takes a different path from an appeal against conviction.

The initial grounds of appeal are often called “holding grounds”. They they will be fairly wide because the grounds have not all been worked out at this stage. That is the usual position and people are not punished for filing expanded grounds at a later stage. Often they will just state “That the sentence was manifestly excessive”

2. If the appeal is not filed within time then an application for an extension of time to file an appeal against sentence may be granted [see section 313 Criminal Procedure Act 2009] by the Registrar of Criminal Appeals. A detailed affidavit needs to be filed explaining why the application for leave to appeal was not filed in time.

3. The Notice of application to appeal against sentence should be served on the Office of Public Prosecutions (usually) or if there is another Prosecuting Agency involved then on them.

The Act provides [s 275 (2) of Criminal Procedure Act 2009] that the Registrar must provide a copy to the OPP but it good practice to make sure you serve it on the Office of Public Prosecutions as well.

4. After the Sentence Appeal is lodged there is generally a long wait for the trial transcript and transcripts of rulings from the Court of Appeal Registry. This is generally due to the volume of transcripts that are being transcribed and is just part of the system. It is not something that is the fault of the Court of Appeal or the Court of Appeal Registry who are very helpful and try to get matters on as soon as they can. Unfortunately a lack of Judges and resources means that the appeal process is a very slow one.

Generally the Barrister who handled the sentence should have some notes or thoughts about what potentially went wrong in the sentencing process. This is often important to get as a starting point to see if there are good appeal points.

5. This is the point at which your appeal lawyers should be reading all the hand-up brief and other material that needs to be scrutinised. There should be discussions with the appellant as to what they think went wrong in the trial process. Barristers should be briefed and given the information that they need to have some idea of the issues.

It is normal to use different Barristers to the ones who did the plea. The reason for this is that is hard to be objective about something you have done yourself.

It is important to start this work before the transcripts arrive as the timelines start getting closer.

6. You then have to await the Court of Appeal Registry informing you of the s 582/ s 278 hearing date.

Depending on length of sentence and the state of the Court list for the Court of Appeal that initial hearing likely to be heard within 4-9 months.

7. An Applicant serving a short sentence of a sentence that is likely to expire before the appeal is likely to be heard – for instance a relatively short term of imprisonment with a non-parole period or a term of imprisonment that is partially suspended then consideration should be made to applying for bail pending appeal. The test is “exceptional circumstances” but in a situation where the applicant falls in the situation above (and providing there is a reasonable argument on appeal) then bail may be a possibility. The Criminal Procedure Act 2009 refers explicitly to granting bail pending appeal (s310).

8. During that waiting period for the first hearing the Court of Appeal Registry will serve plea transcript and sentencing remarks on the solicitors on record.

9. The Court of Appeal Registry will notify of the first hearing date (s 582 / s 278 appeal hearing date ) approximately 6 weeks prior to that appeal date.

10. They will also advice at that stage the date for filing of submissions with the Court of Appeal Registry.

11. Your appeal lawyers then file submissions (those submissions may have proposed additional grounds to what is contained in the notice of appeal).

12. The Crown will file submissions in response.

13. The initial hearing if the 582 / s 278 hearing before a single Justice of Appeal.

The test for leave under s 582 requires the applicant to identify at least one reasonably arguable ground of appeal.

The test for leave under s 278 is different and provides that leave may be refused if there is no reasonable prospect that the Court of Appeal will impose a less severe sentence than first imposed.

14. If leave is granted then you must file a full statement of grounds within 1 month of being granted leave with the Court of Appeal Registry.

15. You must serve your appeal papers on the Crown.

16. Within 1 month after that must file outline of submissions, list of authorities and list of unreported authorities with the Court of Appeal Registry.

17. Three copies of unreported authorities must also be filed with the Court of Appeal. Your appeal lawyers must also serve submissions and 1 copy of unreported authorities on the Crown.

18. The Crown / OPP must file the respondent’s submissions within 1 month of being served.

19. Applicant is able to file a further reply if necessary.

20. The appeal will be heard by 2 or 3 Justices of Appeal.

a. Even if not granted leave an applicant can elect to proceed to have the matter heard by the Court of Appeal (see Criminal Procedure Act 2009 s 315 (2)).

b. The Court of Appeal Registry will advise of the right of election following the leave hearing.

c. Note that Court of Appeal has power to increase sentences on appeal. But the practice has been for the Court of Appeal to warn applicants of the risk if they proceed. If that occurs it is necessary to file a Notice of Abandonment with the Court of Appeal Registry.

d. If the Court of Appeal is satisfied an error has occurred or the sentence is manifestly excessive the applicant will be re-sentenced. Further plea material can be relied upon for that purpose.

e. If the applicant is unsuccessful in the sentence he or she may seek special leave to appeal to the High Court of Australia. The High Court takes on very few sentencing cases on appeal. There must be a clear miscarriage of justice and/or the applicant’s must have implications for the administration of justice.

We are extremely experienced Appeals Lawyers. We have a great deal of experience in handling complex Court of Appeal appeals. If you need advice or representation in an appeal in the Court of Appeal phone us today.