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.
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