What is an appeal?
An appeal is an application to a higher court when you believe that the decision in the lower court was incorrect. In most cases, it is an appeal from the Local Court to the District Court. There are three main types of appeals: severity, conviction and annulment.
What is a Severity Appeal?
If you have been found guilty in the Local Court but believe the penalty was too harsh, an appeal to the District Court can be made. Once the appeal has been lodged, the original sentence and/or penalty is ‘stayed’. This means that the penalty is put on hold until the outcome of the appeal.
If you have been sentenced to a term of imprisonment and make a severity appeal application, you can apply for bail and if granted, you will be released on bail until the outcome of the appeal.
At the appeal, the District Court will look at the sentence imposed and hear submissions from the defence and the prosecution. The Court will then decide to set aside the sentence, vary the original sentence or dismiss the appeal. If the appeal is dismissed, the original sentence from the Local Court stands.
What is a Conviction Appeal?
If the Local Court convicts you of an offence and you believe that the conviction is an error, you can appeal it to the District Court. This is also known as an ‘all grounds appeal’. During this appeal, the Court will look at the transcript of the Local Court hearing and any evidence that was tendered during the hearing. The Court will also listen to submissions from the defence and the prosecution before making a decision. The judge will then uphold or dismiss the appeal.
What is an Annulment?
If a decision was made in the Local Court in your absence, an application could annul the decision under section 4 of the Crimes (Appeal and Review) Act 2001. When deciding the annulment application, the Court will consider the following:
- Whether you were aware of the original proceedings
- Whether you were sentenced in your absence
- Whether you could not take part in the original proceedings due to illness, accident, misadventure or some other significant cause
- Whether it is appropriate to grant the application in the interests of justice
If the annulment application is successful, then the decision of the original court proceeding does not stand. You will then need to be prepared to enter a plea of guilty or not guilty for the matter to proceed. However, if the application is not successful, then the decision of the original court proceeding stands. You can, however, lodge a severity appeal against the original court decision.
How long do I have to lodge an appeal?
You have 28 days to lodge a severity and conviction appeal. If more than 28 days have passed but less than 3 months, will need the Court to grant leave. You cannot lodge a severity or conviction appeal if more than 3 months have passed. For an Annulment, you have 2 years to lodge an application.
How do I lodge an appeal?
An appeal can be lodged at any Local Court. This can be done yourself or by a solicitor. If you choose to appeal yourself, there is a form to fill out called a Notice of Appeal form. The form can be found on the Local Court website or in person at the registry. The Local Court staff will be able to assist you in completing the form.
When lodging the appeal, you may need to pay a fee. This is around $120 and if you are a low-income earner, the Registrar may waive or postpone the fee.
If you are in custody, you can lodge an appeal at the gaol.
When can I appeal?
You can appeal many decisions the Local Court makes, including:
- When you are found guilty of an offence and you say you are innocent
- When you have been given a penalty and you think it is too harsh
- The Court has disqualified your license for a period of time, and you think it is too long
- The Court has refused your application for annulment
- An AVO has been made against you and you do not think it is necessary
- Your application for an AVO was refused
Can I continue to drive if I appeal my licence disqualification?
If the Court disqualified your license and you appeal that decision, the disqualification period will be stayed until the appeal is completed. This means you will still be able to drive until then; it is, however, still best to check with the Court Registry before you get back behind the wheel.
If the police disqualified your license when you were charged, then the disqualification will continue until a decision on the appeal has been made. This means you will be unable to drive.
Can I get a worse outcome if I appeal?
It can happen; however, the Court must warn you if they are considering a harsher penalty. This is called a “Parker Warning.” It means that the Judge in the District Court thinks that you were given a reasonable sentence. When given the warning, you have the choice to continue or not. If you choose to continue, you may be given a harsher sentence. If you choose to withdraw, the original order of the Local Court will stand. It is important to note that even if you are given a Parker Warning, it does not mean the District Court will give you a harsher penalty.
If you are given a Parker Warning, your solicitor will be able to give you advice on the likely outcome of the appeal and whether you should continue or consider withdrawing the appeal.
I have been refused bail; can I appeal?
Yes, you can. If you have been refused bail in the Local Court, you can appeal to the Supreme Court of New South Wales. The Supreme Court process is more formal and requires more information to be submitted with the application. These include:
- Where you will be living and who with. Including an affidavit or letter from the person, you intend to live with stating that you can live there.
- The proceedings number for your charges
Bail conditions you are seeking - Affidavits or letters from anyone that will be responsible for you
- Character references
- Medical reports
- Reasons why you should get bail
Once you have submitted the bail application and it is accepted, you will go before a registrar to get a date for your bail hearing. If you are successful, you will be released on bail. However, if you are unsuccessful, you will have to remain in custody.
We are here to help
Don’t settle for a Court result you are unhappy with. A bad result can have a serious impact on your future. If you are unsure about the prospects of appealing to a Higher Court, we can review your case to assess the likely outcome.
Our solicitors specialise in Criminal Appeals and represent clients in Courts throughout Sydney, the Central Coast, Newcastle and Hunter Regions. We have the experience and expertise to guide you through the court process from beginning to end to get you the best possible outcome.
If you need urgent advice from an experienced lawyer, call one of our criminal law specialists immediately on 1300 529 444 or fill in our contact form to arrange a free initial consultation with a solicitor today. Contact us now! 24-hour legal advice 7 days a week.
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Had the most amazing experience with Fourtree Lawyers kevin vierboom who represented my partner was helpful and understanding and we got a great result better then expected ? jane hogan, I was so blessed to have her by my side. They are an amazing team and i would recommend them to everyone also great value for money. Especially considering i only called the morning of the court case and they were all over it at my bek and call thankyou so much guys im so appreciative for all your help today
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Court Results
Severity Appeal | 10(1)(a) Dismissal | Newcastle District Court
Our client is a 34-year-old female that resides in the Hunter Region. She has professional qualifications and a criminal conviction would have ended her career.
Our client was previously convicted in Newcastle Local Court for Posses Prohibited Drug. At the time of the offence, our client had been going through a difficult time with her ex-partner. His car had been towed to her house after an accident and after she cleaned the car out, she found a small bag of “crystals” in the car. Being fearful that one of her ex-partner's friends would come to break into the car, she removed the bag and hid it in her house. The Police found the drugs in her house and she was charged.
This offence carries in the Local Court a maximum penalty of 2 years imprisonment and/or a fine of $2,200. In the Local Court, represented by a barrister, our client received a Conditional Release Order with a conviction and a fine of $450. This conviction caused her to lose her job.
Our Principal Solicitor, Mr Kevin Vierboom, was approached to lodge a severity appeal. He attended Newcastle District Court and submitted that the penalty was too harsh due to the unusual circumstances surrounding the offence and the impact a criminal conviction would have on our client's career.
His Honour agreed with Mr Vierboom’s submissions. The appeal was upheld and the charges were dismissed.
Our Client and her family were extremely grateful to achieve such an outstanding outcome.
Appeal Allowed | Affray and destroy or damage property | Gosford District Court
Our client, a 47-year-old Central Coast man, was charged with affray and destroy or damage property. The maximum penalties for these offences are ten years imprisonment and 5 years imprisonment, respectively. Our client served his Country overseas with the Australian Army. He was discharged from the army with PTSD. Solicitor Kevin Vierboom initially made a section 32 Application under the Mental Health (Forensic Provisions) Act 1990. The Magistrate believed that a section 32 was not appropriate for the offences before the court, convicted our client and ordered a Good Behaviour Bond for a term of 2 years under section 9 of the Crimes (Sentencing Procedure) Act 1999.
Our client instructed us to appeal the sentence handed down in the Local Court based on severity. On appeal to the Gosford District Court, Mr Vierboom made further submissions. Following consideration of these submissions, the Judge upheld the appeal and ordered a section 10(1)(b) Good Behaviour Bond for 2 years without proceeding to conviction on the condition that our client is of good behaviour for the term of the bond and continues professional counselling and medical treatment.
Our client was relieved to regain his unblemished record.
RMS Licence appeal | Appeal Allowed | Gosford Local Court
Our client is an 18-year-old female who lives with her father in a remote area of the Central Coast. She is studying for a university degree and works part-time.
The highway patrol stopped our client for speeding 30-45km/h over the legal speed limit while driving on the far-right lane. Our client’s licence was immediately suspended and as a result, our client was homebound for most of her post-HSC summer holidays. After serving her 3-month suspension, the Roads and Maritime Services notified our client of another 3-month demerit point suspension. Our client appealed the later suspension and sought to have it eliminated.
Solicitor Erin Nulty attended Gosford Local Court and made appeal submissions before Local Court Magistrate Ms McIntyre. Ms Nulty emphasised that our client’s home had little access to public transport and that it would be highly impractical for our client to meet life commitments without a licence. The magistrate completely waived our client’s second demerit-point suspension.
This was a fantastic result for our client as our client could immediately return to driving.
Severity Appeal | Exceed Speed > 30km/h | Sentence Varied | Gosford District Court
Our client is a 40-year-old male who lives with his wife and two young daughters.
Our client works as a senior director for an international IT company and as a result of work-based travel frequently requires an international driver’s licence.
Our client was charged with a Class A motor vehicle exceed speed > 30km/h on the Central Coast Peninsula as he overtook another vehicle. The offence carries a maximum penalty of a $2,200.00 fine, a 3-month licence disqualification and an automatic loss of 5 demerit points. In the original sentencing, our client was found guilty and ordered to pay a fine of $500.00 and a licence disqualification of 3 months.
Our solicitor attended Gosford District Court and made submissions in mitigation of the severity of the penalty. Our client appealed based on the severity of his sentence. The court upheld the appeal and quashed his conviction. Our client’s sentence was varied, and he was sentenced to a Conditional Release Order without proceeding to conviction for a period of two years.
Our client was thrilled at the return of his licence and the ability to continue utilizing his driving skills for work.
Low Range PCA, Class A M/V Exceed Speed > 30km/h | s4 Annulment - Conditional Release Order without Conviction | Gosford Local Court
Our client is a 66 year old male who is a director of a large organisation and sits on the board for several other organisations.
Our client was stopped for exceeding the signposted speed limit by more than 30km/h. Our client was also subjected to a random breath test and returned a low range reading upon being stopped.
Our client came to us extremely concerned by the possibility of having a conviction recorded against him. Given that his business dealings and obligations as a board member require overseas travel, he knew that much was at stake.
The maximum penalty for the offence of Drive with Low Range PCA is a fine of $2,200. There is an automatic disqualification period of 6 months. The court has some discretion to reduce the disqualification period to 3 months.
Our Solicitor attended Gosford Local Court and made submissions in mitigation of the penalty. Our client’s circumstances were put to the presiding Magistrate and a plea for leniency was made. Our client was sentenced to a Conditional Release Order for 2 years without proceeding to conviction.
The immense relief our client felt was obvious immediately. He was overwhelmed by the outcome and was sincerely grateful. This enabled him to continue to carry out his business travels and remain an active board member.
Severity Appeal | Sequence 2 – Sentence Set Aside | Newcastle District Court
Our client is a 47 year old single man who holds qualifications in teaching.
Our client was the sole occupant in a single-vehicle accident on 3 June 2018. As a result, he was treated by paramedics and transported to a hospital, where he returned a high range BAC.
As the impact of the term of imprisonment imposed by Toronto Local Court would adversely affect our client’s prospects of future employment, we lodged a severity appeal on his behalf against the decision.
Our client was initially ordered to serve a term of imprisonment of 13 months with a non-parole period of 7 months. Additionally, he was subject to a 9 month license disqualification period and an interlock device period of 24 months.
Solicitor Erin Nulty and Barrister Rebekah Court attended Newcastle District Court to appeal the Local Court decision. Submissions were tendered to the Court on behalf of our client to reduce the penalties imposed by the prior Local Court decision. Upon appeal, the Court ordered that the sentence of imprisonment imposed be set aside and ordered our client to enter an Intensive Corrections Order for a period of 13 months.
The client was immensely relieved with the appeal outcome as he was no longer subject to a term of imprisonment. The imposition of the Intensive Corrections Order enabled him to serve this sentence in the community.
Section 10(1)(b) – M/V Exceed Speed Limit over 30km/h – Downing Centre District Court
Our client, a 53-year-old male, charged with Class A m/v, exceed the speed limit >30km/h. The maximum penalties for these offences are a 3 month automatic licence disqualification, and a fine of $2,200.00. Our solicitor made submissions to the Magistrate at Hornsby Local Court. The Local Court Magistrate convicted our client and ordered a 3-month licence disqualification and a $500 fine.
Our client had been involved in a serious truck accident while driving a car on the M5 motorway just before the incident. He had been diagnosed with PTSD and suffered a panic attack on the M1 Motorway when surrounded by three heavy vehicles which caused him to accelerate for a matter of seconds. Our client’s employment as a truck driver would have been affected and he would have lost his income so he asked us to lodge a severity appeal in the District Court.
Solicitor Kevin Vierboom made extensive submissions in relation to the M5 accident, the timeframe of the incident, our client’s employment and previous good character. Following these submissions, the Judge dismissed the charges and ordered a Good Behaviour Bond for a term of 6 months under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.
Appeal Allowed –3 x Destroy or Damage Property – Gosford District Court
Our Client, a 29-year-old male who lives on the Central Coast, was charged with three counts of Destroy or Damage to Property.
The maximum penalty for this offence is 5 years imprisonment. Our client had an extensive criminal history, had served multiple good behaviour bonds, and had other court orders imposed upon him in the past. Our client had been represented in the Local Court by Legal Aid and sentenced to 3 months imprisonment for each offence.
Our client immediately lodged a severity appeal to the District Court and called us for assistance with his appeal.
Solicitor Kevin Vierboom submitted to the Judge that there was little to recommend our client given his extensive criminal history. However, the damage was isolated to property and our client had gained employment and had not been in trouble with the Police for the past 5 years.
Following consideration of the submissions, the judgement of the lower court was set aside. The 3 x 3 month terms of imprisonment were replaced by a suspended sentence of 8 months and a good behaviour bond.
Appeal Allowed – Exceed Speed limit by more than 20 km/h but not more than 30km/h whilst driving a motor vehicle – Wyong Local Court – 05/07/2018
Our client, a 23-year-old male who lives on the Central Coast, was charged with exceed speed limit by more than 20km/h but not more than 30km/h whilst driving a motor vehicle. As a result of this offence, our client lost 4 demerit points and his P1 Provisional Licence was suspended. On a Licence Appeal to the Wyong Local Court, our Solicitor made extensive submissions in relation to the objective seriousness of the offence and our client’s subjective circumstances. The Magistrate provided our client with two options:
1) To have his licence suspended and to have the demerit points wiped from his record; or
2) To have the demerit points remain on his record and to allow him to maintain his licence.
Our client chose to maintain his licence and the accrued demerit points. Our client was extremely relieved with this outcome, as this meant that he could continue to work and support his family.
Appeal allowed – RMS Licence Appeal – Gosford Local Court
Our client, a 22-year-old male who serves in the Australian Army, was charged with exceeding speed limits whilst driving a motor vehicle. At the time of the offence, our client was on his P2 Provisional Class C Driver licence.
Our client is an active soldier for the Australian Army. Losing his licence would have had a detrimental impact on his career as a soldier. Before any court proceedings, the Road & Maritime Services had issued a licence suspension notice for a period of 3 months. Fourtree Lawyers lodged a licence appeal on behalf of our client in the Local Court. Fourtree Lawyers represented our client on appeal to the Gosford Local Court.
Our solicitor made extensive submissions concerning the objective seriousness of the offence and our client’s subjective circumstances. Following consideration of these submissions, the Magistrate allowed the appeal and cancelled the licence suspension period.
Our client was relieved with the outcome of this case, as it meant that he could continue to drive for the purpose of his career as a soldier.
Severity Appeal | ICO | Newcastle District Court
Our client is a 41-year old male residing on the Central Coast. He runs his own business and is a board member for a volunteer Community Emergency Foodservice.
Earlier this year, our client was convicted for dishonestly obtaining a financial advantage by deception. He was sentenced to 18 months imprisonment with a non-parole period of 12 months. This offence carries a maximum penalty of 2 years imprisonment and/or 100 penalty units in the Local Court.
Our Solicitor Joseph Gilbert, along with Senior Counsel Mr Philip Massey, attended court on behalf of the client. Mr Massey submitted that due to our client's prior good character and the difficulty the volunteer service would face without leadership during the current Coronavirus, the term of imprisonment is best served by way of an Intensive Correction Order (ICO).
Her Honour Justice Triall saw fit to agree with Mr Massey and order that our client serves his imprisonment through an ICO for 18 months.
Our Client was extremely relieved at the outcome.
Client Reviews
I thought I was a certainty to be incarcerated. After choosing Fourtree lawyers they put my mind at ease. The barrister they recommended and the help from Erin saved my life so to speak. Very professional and considerate people to work with. I can't recommend them highly enough.
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