Appealing a sentence in Victoria

An appeal is a process by which you may appeal a decision handed down in Court in order to request a change to the outcome

You will usually need to show that there has been an error of law or judgment if appealing.

Appealing a Sentence – County court

An appeal can be made to a County overview-of-the-court-system, by any person convicted or sentenced by a Magistrates court. There is a 30-day period in which an appeal can be made; otherwise, a leave to appeal out of time will have to be submitted to the presiding Judge.

A defendant may also abandon an appeal within the 30-day allowance, or apply for leave to do so. When an appeal is lodged, the operation of the initial order is stopped, except for when the order prevents the use of a motor vehicle. When this occurs, a defendant may also apply for the right to drive a motor vehicle at the same time as lodging his or her appeal, pending the hearing of the appeal. Similarly, if an appeal is made where a prison sentence has been handed down, bail may be applied for along with the appeal application.

When an appeal has been made to the County Court, it is operated as a rehearing of the case.

Appeals against Conviction

A right of appeal against a conviction is generally available when a person has been found guilty in a Victorian Court. From a Magistrates Court, an appeal can proceed to a County Court or a Supreme Court. Appeals from the County Court or Supreme Court will advance to the Court of Appeal.

Appeal by DPP against Sentence

Under Section 257 of the Criminal Procedure Act 2009, if satisfied that a case warrants appeal for the public interest, the DPP may appeal to the County Court against a Magistrates’ Court sentence against a criminal matter. The DPP may not bring a further appeal against a sentence imposed by the County Court.

Appeal to Supreme Court on a Question of Law

Under Section 272 of the Criminal Procedure Act 2009, in the Magistrates Court, a party to a criminal proceeding (other than a committal proceeding) may appeal to the Supreme Court on a question of law, from a final order of the Magistrates’ Court in that proceeding. There is a 28-day period in which a notice of appeal may be lodged after the day on which the order complained of was made.

If an informant who is a member of the police force wishes to appeal, the appeal may be brought only by the DPP on behalf of the informant.

Appeal on a question of law precludes an appeal to the County Court

Under Section 274 of the Criminal Procedure Act 2009, a person convicted of an offence by a court may appeal to the Court of Appeal against the conviction on any ground, if the Court of Appeal gives the person leave to appeal.

Right of Appeal-Inadequate Sentence

Under Section 287 of the Criminal Procedure Act 2009, if satisfied that a case warrants appeal for the public interest, the DPP may appeal to the Court of Appeal against an original sentence if the DPP considers that there is an error in the sentence imposed and that a different sentence should be imposed.

Right of Appeal against Interlocutory Decision

For the prosecution of an indictable offence in the County Court or the Trial Division of the Supreme Court, a party to a proceeding may appeal to the Court of Appeal against an interlocutory decision made in the proceeding, if the Court of Appeal gives the party leave to appeal.

A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies is the subject of the proposed appeal.

Appeal to the High Court

The High Court of Australia deals with appeals moved up from other courts, or from the High Court itself. Hearing appeals against decisions of other courts is the usual work of the High Court, but there is no automatic right to have an appeal heard by the High Court. Anyone who wishes to appeal must convince the Court that there are special reasons to cause the appeal to be heard.

A full bench comprising all seven Justices normally determines cases that involve interpretation of the Constitution, or where the Court may be invited to depart from one of its previous decisions, or where the Court considers the principle of law involved to be one of the major public importance.

Decisions of the High Court are final in cases of appeal.