Appeals: Challenging a Conviction or Sentence

A person convicted or sentenced in the Local Court can generally appeal to the District Court against their conviction, their sentence, or both, under the Crimes (Appeal and Review) Act 2001 (NSW). This must generally be lodged within 28 days of the Local Court decision, though the District Court can grant leave to appeal outside this period, within a further extended timeframe, where a good explanation is given for the delay.

A conviction appeal is generally heard as a fresh hearing, meaning the District Court considers the evidence afresh rather than simply reviewing the Local Court’s decision for error, while a severity appeal against sentence alone asks the District Court to determine whether a lesser sentence should have been imposed. Importantly, the District Court can increase a sentence on a severity appeal, not just reduce it, which is a risk that needs to be weighed carefully before an appeal is filed.

Where a matter has been dealt with on indictment in the District Court, an appeal against conviction generally lies to the Court of Criminal Appeal, while an appeal against sentence alone requires leave of that Court. These appeals are not a rehearing of the evidence but a review of the trial or sentencing proceeding for legal error, and are dealt with by a bench of judges rather than a single judge sitting alone.

Because these appeals focus on identifying a specific legal or factual error in the original decision, rather than simply re-arguing the case, they generally require considerably more detailed legal analysis to prepare than a Local Court appeal, and the prospects of success depend heavily on the particular ground being relied upon.

An appeal is not simply an opportunity to have another go at persuading a court of your case — it requires identifying a specific basis on which the original decision was wrong. Common grounds include that a sentence was manifestly excessive or manifestly inadequate having regard to comparable cases, that the Magistrate or judge made an error of law, that the verdict was unreasonable having regard to the evidence, or that genuinely fresh evidence has since come to light that was not available at the original hearing.

Simply disagreeing with the outcome, or wishing a different sentence had been imposed, is not enough. A realistic assessment of the actual prospects of an appeal — including the specific ground being relied on and how strong the supporting argument is — should be obtained before deciding whether to proceed, given the cost, time and risk involved.

The time limits for lodging an appeal are strict, and acting quickly is important even if you are still deciding whether to proceed, since obtaining the sentencing transcript, court file and any supporting material takes time. Depending on the sentence imposed, it may also be necessary to apply for bail pending the appeal, or for a stay of the sentence, so that a custodial sentence does not need to be served while the appeal is being determined.

Because appeal grounds and prospects vary enormously depending on the specific decision being challenged, getting advice as soon as possible after sentencing — ideally within days rather than weeks — gives you the best opportunity to properly assess your options and meet the relevant time limit.