A person who has their matter finalised in the Local Court
and would like to have their matter reviewed has the right of appeal to the
District Court provided that the appeal is filed within the 28 days of the
Court Order being made.
It should be noted that if a person would like to appeal
their case to the District Court and the person has not done so within the
28-day window (from the date of the Court Order being made in the Local Court)
but the person is still within the 3 month window from the date of the Court
order being made, then the person may still appeal to the District Court but
that person will be required to seek ‘leave’ and be ‘granted leave’
from the District Court. It should be noted however that if more than 3 months
has elapsed since the Court Order in the Local Court being made and a person
has not lodged an appeal then the person will not be able to appeal the
decision which was made by the Local Court to the District Court.
‘Leave’ is a legal word which lawyers use in court,
and it simply means ‘Permission’
What is a Severity Appeal?
A ‘Severity Appeal’ is an appeal against the
sentence, imposed by a Magistrate of the local Court. Section 17 of the
(Crimes Appeal & Review Act 2001 states that an appeal against
sentence is to be by way of a re-hearing of the evidence given in the Original
Local Court proceedings, although fresh evidence may be given in the appeal
proceedings.
In simple terms, when appealing a matter from the Local
Court to the District Court, the presiding Judge in the District Court will be
provided with a copy of all material which the Local Court Magistrate received
in the Local Court ‘Sentence’ proceedings which include Character References,
Medical/Psychological documentation, Letter of Apology, The Agreed Facts and if
necessary, any fresh evidence which the ‘Appellant’ (person who is appealing)
may provide the court with.
What is a ‘Parker Warning’?
The ‘Parker Warning’ is a warning which the District
Court Judge gives the Appellant (during the Severity Appeal) in circumstances
where the Judge intends on increasing the Sentence which was imposed in the
Local Court.
As previously mentioned, a ‘Severity Appeal’ is an appeal
against the sentence, imposed by a Magistrate of the Local Court. This means
that the District Court judge will have to re-determine a sentence which the
judge believes is appropriate given all the material which The District Court
has been provided with on appeal. It should be noted that a Judge can impose a
harsher sentence at the Severity Appeal however prior to imposing a Harsher
sentence the Court must give the appellant what is known as a ‘Parker Warning’
Once the ‘Parker Warning’ has been given by the Judge
the appellant can withdraw their appeal immediately. If the person withdraws
their appeal on the spot once the parker warning has been given by the District
Court Judge, then the District Court cannot increase the sentence/penalty
imposed by the Local Court. It should be noted that if the appellant proceeds
with their appeal after the parker warning has been issued then the District
Court can (and most likely will) impose a penalty which is greater than the penalty
imposed in the Local Court. Therefore, it is critical that you receive legal
advice prior to going to Court.
What happens on the day of your ‘Severity Appeal’?
On the first listing date in the District Court, a solicitor
from the ODPP will appear on behalf of the Crown. The ODPP solicitor will have
a bundle of all the documents which the Local Court was provided with including
an updated criminal history, an updated traffic history (if necessary) and the
bundle will provide the District Court Judge with a comprehensive summary of
critical details pertaining to your case including but not limited to: the
maximum penalty for the offence(s), penalty imposed in the Local Court for each
offence, (just to name a few). It should be noted that this bundle will also be
provided to your solicitor who is appearing for you for the Appeal.
What Orders can the District Court make?
When the District Court Judge has heard the severity appeal
and considered all the material, the District Court can make any of the following
orders:
1.
Allow the Appeal
·
By
allowing the Appeal, the District Court can re-sentence the person who has
lodged a Severity Appeal; or
·
Quash
the conviction (if the person lodged a Conviction Appeal)
2.
Dismiss the Appeal
It is very important that you speak
with a lawyer so that you can get the appropriate legal advice which you
require prior to going to court.
Our team of experienced solicitors are there for you and can
help you answer all your questions, so be sure to contact Nicopoulos Sabbagh Lawyers.
*This article correctly reflects
the Laws of NSW as at 18th October 2022.
*Please
note that this page or any other pages on our website (including any other
social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered
as a substitute for legal advice or even other professional advice. It should
also be noted that accessing of this information from this website does not create a client-lawyer
relationship.