What can you do if you are not happy with the result?

27.1In the room, nothing

First

If the result is worse than you hoped, say "Thank you, Your Honour" and leave. Arguing at the bar table changes nothing and is recorded. The place to disagree with a sentence is the District Court, and the time to think about it is later that day.

27.2The appeal

Your right

Anyone sentenced in the Local Court can appeal to the District Court against the sentence, the conviction, or both. You do not need permission. You file a notice of appeal at the Local Court registry, pay the filing fee or apply to have it waived, and the matter is listed in the District Court, usually within two to three months.

The appeal must be filed within 28 days of the sentence. After that you need leave, and leave requires an explanation the court accepts. If you are considering an appeal at all, file within the 28 days and decide later whether to proceed; an appeal can be withdrawn.

Legal basis: Crimes (Appeal and Review) Act 2001 (NSW) ss 11, 12 (right of appeal), 13 (time), 17, 18 (nature of appeal). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.

27.3What a sentence appeal involves

The hearing

A sentence appeal to the District Court is a rehearing. The District Court Judge sentences you again, on the same facts, taking into account everything before the Local Court and anything new you tender. You can put in updated references, evidence of a program completed since, and anything that has changed. The Judge is not asking whether the Local Court made an error. They are asking what the right sentence is.

That cuts both ways. The District Court can impose a lesser sentence, the same sentence, or a greater one, and it must warn you before increasing it so that you can withdraw. Appeals against a fine, seeking a non-conviction outcome, are the most common on this charge and they succeed often enough to be worth considering where the Local Court sentence was imposed on an unprepared plea and the preparation has since been done. They are a poor bet where the Local Court had everything and simply disagreed with you.

27.4Annulment, if you were sentenced in your absence

Different remedy

If the conviction was recorded because you did not attend, the remedy is not an appeal but an annulment application in the Local Court, described in Lesson 2. It puts the matter back on the list. Two years to apply, and a reason the court accepts.

27.5Before you file

Decision

Ask three questions. What has changed since the Local Court sentence that the District Court would see differently? Is the gap between what you got and what you are seeking worth the fee, the months, and the risk of a heavier sentence? Have you had someone who does this for a living tell you the realistic prospects? If the answer to the third is no, that is the one to fix first.