If you have recently been involved in a criminal case and you disagree with the outcome, and believe that the sentence you were given was too harsh, there is a way that you can lodge an appeal.
The sentencing appeals process in NSW allows defendants who disagree with the outcome of their case to seek a review of their case, and potentially have their sentence reduced.
There are different appeals processes, depending on which court the sentence was handed down in, and the type of appeal you would like to make.
Appealing a criminal case at the district court
Most appeals for criminal case sentencing take place in the district court, even if the matter was originally heard in the local court.
If you wish to appeal a sentence that was given to you in a criminal case, you have 28 days from the finalisation of the matter to lodge a notice of appeal form in writing.
Or, if you have a good reason, you have up to 3 months to lodge your appeal.
Your criminal lawyer can lodge the appeal on your behalf and, if you are outside the 28 days, argue that you should be allowed to lodge your appeal regardless.
Once you have lodged your appeal, you will be given a court date where a district court judge will hear the case all over again – which is called a ‘hearing de novo’ or new hearing..
They will also listen to any further evidence you have, including character witnesses or other statements that you believe will reinforce your appeal.
When you appeal a criminal case at the district court, you can’t be given a more severe sentence.
If this is likely to be the outcome of your appeal, the judge will give you a warning and you can withdraw your appeal.
If the judge agrees with the original sentence it will remain the same, or if they agree with your appeal, they will reduce the sentence to one that is less severe.
In NSW, you generally only get one chance at an appeal unless there is compelling new evidence to prove your innocence, in which case you may be able to apply to the supreme court to have the matter dealt with.
Appealing an order made in your absence
If you were sentenced in a criminal case, or were served with an order such as an AVO while you were not present, you can make an appeal to the local court. This is generally known as a Section 4 review.
Under a Section 4 review you can seek an annulment of a decision that was made in your absence.
The time limit for this is two years after the matter was decided.
If it has been more than two years, in some cases you may still be able to appeal under a Section 5 review.
This is only possible in situations where the Attorney General believes that there is significant doubt as to your guilt, or you have a valid reason for not attending and can provide medical or other evidence to explain your absence from court when the matter was decided.
If you disagree with the outcome of a criminal matter, and you want to appeal, it is important to seek legal advice from a top appeal lawyer.
Your lawyer can help advise you on your likelihood of success, and help you prepare any evidence to support your case.
Your lawyer can also advise you if the judge is likely to give you a more severe sentence on appeal, and withdraw the appeal for you if you are given a warning.