An appeal is a request to a higher court to review and change a decision of the original court. Appeals are governed by the Criminal Procedure Act 2009 (Vic).
In Victoria, both the prosecution and the offender can appeal sentences. Convictions (findings of guilt) can only be appealed by the offender.
Appeals from the Magistrates' Court to the County 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 (known as a de novo appeal). However, future legislation will require the County Court to determine the appeal based on the transcript of evidence from the original hearing in the Magistrates’ Court. Sentence appeals will then only be considered if the County Court finds a compelling reason to impose a different sentence. These changes are expected to commence in 2028.
Appeals from the higher courts to the Court of Appeal
A person sentenced in the higher courts (the County Court or Supreme Court) can apply to the Court of Appeal for leave (permission) to appeal a sentence. The Court of Appeal can refuse the application for leave to appeal if there is no reasonable prospect that the Court of Appeal will impose a less severe sentence.
The DPP can appeal against a sentence imposed in the higher courts if the Director considers that an error was made in the original sentence and a different sentence should be imposed. The DPP must also be satisfied that bringing the appeal is in the public interest.
Sentence appeals can be classified into three types:
- the prosecution argues that the sentence was manifestly inadequate (too low)
- the defence argues that the sentence was manifestly excessive (too high)
- the prosecution or defence argues that the original court made an error in sentencing.
In determining whether a sentencing error was made, the Court of Appeal considers matters such 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 was made because the sentence imposed by the original judge is plainly unreasonable or unjust.
If the Court of Appeal decides that an error was made and that the offender should receive a different sentence, 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.
Our research on sentence appeals found that very few sentences imposed in the higher courts are successfully appealed (Sentencing Advisory Council (2018) Sentence Appeals in Victoria: Second Statistical Research Report).
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