Introduction
Sentences imposed by Local Courts are open to a number of review and appeal avenues. This article intends to provide a brief overview of the process involved in severity appeals from the Local Court to the District Court.
Criminal appeals are generally governed by the Crimes (Appeal and Review) Act 2001 (NSW) (the Act). Under section 11(1) of the Act, any person who has been sentenced by a Local Court may appeal to the District Court against the severity of the sentence.
Appeals to the District Court
Appeals to the District Court are heard by a single judge. A solicitor from the Office of the Director of Public Prosecutions (DPP) usually appears for the Crown. A solicitor or barrister may appear for the appellant.
The District Court will rehear the evidence given in the original Local Court proceedings in order to determine the appeal. Fresh evidence that was not before the Local Court can be given in the appeal proceedings. This fresh evidence can include references or reports that support the appeal case.
Commencing the Appeal
Under section 11(2)(a) of the Act, an appeal must be made within 28 days after the sentence is imposed. If an appeal is lodged within 28 days of sentence, the appropriate form is the Notice of Appeal.
If the 28-day period has passed, leave of the District Court must be sought by way of an Application for Leave to Appeal. Under s 13(2) this must be done within three months of the date the sentence was imposed.
Under section 14(1) of the Act, an appeal is made by lodging a written Notice of Appeal or an Application for Leave to Appeal with either:
(a) The Registrar of any Local Court; or
(b) The person in charge of the place where the appellant is in custody.
The Notice of Appeal or Application for Leave to Appeal can be obtained from any Local Court Registry. It is also available on the Local Courts website.
The Effect of Lodging a Notice of Appeal
Once a Notice of Appeal is lodged, any sentence, penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of licence or privilege arising under an Act as a consequence of a conviction is stayed. This means that the sentence or order does not take effect until the appeal is determined.
There are exceptions to this general rule as noted in section 63 of the Act. These include:
- If a person requires leave to appeal, the stay only takes effect when leave is actually granted.
- If the appellant is in custody, and has not been granted bail, the sentence of imprisonment continues to have effect.
Powers of the District Court when Dealing with Appeals
Under section 20(2) of the Act, upon hearing the appeal, the District Court may:
(a) Set aside the sentence;
(b) Vary the sentence; or
(c) Dismiss the appeal.
However, under section 71 of the Act, the District Court must not make an order or impose a sentence that could not have been made or imposed in the Local Court. Further if the District Court is considering increasing the sentence that was imposed by the Local Court, the Court must warn the appellant.
If such a warning is given, it is possible to seek leave to withdraw the appeal. However, it is up to the Judge whether leave is granted and if it is not granted, the appeal will have to go ahead.
Failure to Appear
If the appellant (or his/her legal representative) fails to appear to argue the appeal or the application for leave to appeal, the Court may dismiss the matter.
If such a dismissal has been ordered, it is possible to apply to the Court to have the dismissal revoked under section 22 of the Act. The application for revocation of dismissal must be made within 12 months of the date on which the dismissal order was made.
Under section 22(3) of the Act, after hearing the application, the District Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied that:
(a) The appellant has show sufficient cause for the failure to appear; and
(b) It is in the interests of justice that the appeal or application be heard.
Other Options
Severity appeal to the District Court is one option that may be taken when the Local Court hands down a sentence. Some other options are:
- Annulment of conviction or sentence;
- Conviction appeal;
- Appeal to the Supreme Court; and
- Appeal to the Land and Environment Court.
Whether any of these options are available and/or suitable will depend on the circumstances of each particular case.
Getting Help
This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.
This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.
Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.
Requirements under Section 10
Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed, and
(d) any other matter that the court thinks proper to consider.
These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:
- An order directing that the relevant charge be dismissed under section 10(1)(a). The charges will be outright dismissed, the court will impose no further conditions, and there will be nothing recorded on the criminal record
- An order discharging the person, subject to the condition that the person enters into a good behaviour bond not exceeding a maximum time period of two years under section 10(1)(b). The good behaviour bond will at minimum require the offender not to commit any further offences within the bond’s applicable time period, advise the court of any address changes, and require that the offender appear before the court when requested to do so.
- An order discharging the person subject to the condition that they enter into an agreement to participate in an intervention program, and to comply with any intervention plan arising out of that program. This means that under section 10(1)(c), the defendant will be obligated to successfully participate in a rehabilitation course of some kind, and any related action plan that is specified in the intervention program.
Section 10 and traffic offences
A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.
However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.
In R v Nguyen [2002] NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.
In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”
The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.
While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.
If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.
Getting Help
Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000
Tel: 02 9635 3777
Fax: 02 9223 0276
Email: info@www.astonlegal.dev
Web: www.www.astonlegal.dev