Appealing a sentence

Contributed by Lorana Bartels and Anthony Hopkins. Current to November 2021.

After a sentence is imposed in either the Magistrates Court or the Supreme Court, an offender has a right to appeal. Time limits apply and any person seeking to appeal should urgently seek legal advice. In relation to appeals from the Magistrates Court to the Supreme Court, the Supreme Court of the ACT provides information here.

Appealing a sentence imposed by a Magistrate

If a sentence has been imposed by a Magistrate, then any appeal must be to the Supreme Court. That appeal is commenced by filing a notice of appeal in the office of the Registrar of the Supreme Court. The notice of appeal must be filed within 28 days of the date on which the sentence was imposed (see ss 207, 208(1)(d) and 209 Magistrates Court Act 1930 (ACT)). In certain circumstances, the Supreme Court may allow further time in which to institute an appeal. A copy of the notice of appeal must be filed with the Magistrates Court and served on the Director of Public Prosecutions. Further rules relating to appeals to the Supreme Court can be found in Part 5.3 Court Procedures Rules 2006 (ACT).

After an appeal has been instituted, the conviction, order, sentence or penalty that is the subject of the appeal is stayed (put on hold) until the appeal is decided, abandoned or discontinued (s 216 Magistrates Court Act 1930 (ACT)). If the person appealing is in custody, then they may apply for bail (s 216(1)(b) and (2)).

On an appeal against a sentence imposed by a Magistrate, the Supreme Court may confirm the sentence, vary it, set it aside and resentence the offender, or remit (return) the case to the Magistrates Court for further hearing (s 218 Magistrates Court Act 1930 (ACT)).

Generally, the Supreme Court will only interfere with a sentence if it is satisfied that there was an error in the exercise of the sentencing discretion (see below). However, the Supreme Court also has the power to receive fresh evidence in certain circumstances, which means it has the power to determine the appeal even if there was no error by the Magistrate (s 214 Magistrates Court Act 1930 (ACT)).

Appealing a sentence imposed by a Judge of the Supreme Court

If a sentence has been imposed by a Judge of the Supreme Court, then any appeal must be to the Court of Appeal (s 37E(2)(a) Supreme Court Act 1933 (ACT)). That appeal is commenced by filing a notice of appeal in the office of the Registrar of the Supreme Court. The notice of appeal must be filed within 28 days of the date upon which the sentence was imposed (see Reg 5405(1)(b) Court Procedures Rules 2006 (ACT)). In certain circumstances, the Court of Appeal may allow further time in which to institute an appeal, but this requires the filing of an application for leave to appeal out of time. Rules relating to appeals to the Supreme Court can be found in Part 5.4 of the Court Procedures Rules 2006 (ACT).

On an appeal against a sentence imposed by a Judge, the Court of Appeal may confirm the sentence, vary it, set it aside and resentence the offender or remit (return) the case to a single judge of the Supreme Court for further hearing (s 37O Supreme Court Act 1933 (ACT)).

Generally, the Court of Appeal will only interfere with a sentence if it is satisfied that there was an error in the exercise of the sentencing discretion (see below). However, the Supreme Court also has the power to receive fresh evidence in certain circumstances; this means it has the power to determine the appeal even if there was no error by the Sentencing Judge (s 37N Supreme Court Act 1933 (ACT); Reg 5606 Court Procedures Rules 2006 (ACT).

Error in the Exercise of the Sentencing Discretion

In the absence of fresh evidence admitted by the court considering the appeal, the appeal court can only intervene and exercise its powers if it satisfied there was an error by the court below. This error may be legal, factual or discretionary in nature. In accordance with principles established by the High Court in House v The King [1936] HCA 40, an appellant must show that the Magistrate or Judge made a specific or identifiable error. Or, if no specific error can be demonstrated, the appellant must establish that the sentence was 'unreasonable or plainly unjust'.

Specific error may be demonstrated where the sentencer:

• made an error of law or legal principle
• took into account irrelevant considerations
• failed to take account of relevant considerations, or
• mistook the facts that are the foundation of the sentence

A sentence may be shown to be 'unreasonable or plainly unjust' where the appellant can establish that it was 'manifestly excessive'. This is a conclusion that the court can reach based upon all of the circumstances of the offence and the offender. Often, to establish that an offence is manifestly excessive will require the appellant to point to past sentences of the court to establish that the sentence imposed is outside the range of appropriate sentences. It is not enough to show that a more lenient sentence could have been imposed.

Prosecution appeals against sentence

Prosecution appeals against sentences should only be brought in exceptional circumstances, to establish some matter of principle, correct a manifestly inadequate sentence, or maintain adequate standards of punishment in the community. Even where the prosecution establishes that an error has been made by the Magistrate of Judge, the appeal court may decline to interfere with the sentence.