Make sure your solicitor can provide a reasonable prospect on your success or failure if you are appealing a Court sentence.
The following process outline allows you to consider the way a lawyer should advise and handle your Appeal.
Appealing a Court sentence from the NSW District Court:
Are you appealing a Court sentence because you received a penalty that was too severe? Or was based on part of the evidence?
ETB Legal have drafted advice for the criminal law indictable appeals section, regarding the prospects to appeal sentencing through the Court of Criminal Appeal (CCA).
ETB Legal will:
- Access the court transcript of the decision
- Consider voire dire evidence and exhibits
- Consider remarks on sentence (ROS)
- Consider criminal history (antecedents)
- Consider other relevant material such as medical, expert reports.
- Ask if a psychologist or psychiatrist was involved in providing a assessment or report of you that the Judge considered at sentence?
- Analyse the law and precedent and consult online databases (i.e. JIRS, statistics on how other people were penalized in the country or state for a similar or same penalty).
For example: this can include statistics on a person who has committed crimes relevant to domestic violence or wounding or grievous bodily harm (GBH).
The matters of this kind that relate to domestic violence are important, as New South Wales laws do not specifically or clearly define a level of injury and a victim can have a preexisting injury.
ETB Legal would also consider if the inmate would be eligible to form a defence based on the argument behind ‘special circumstances’, vulnerability, medical condition and the case law explaining these terms.
Once ETB Legal analysed the overall matter, they then apply the laws administering appeals that consider error of law and if a sentence is manifestly excessive or inadequate or unjust.
These governing principles are referred to In House v The King (1936) 55 CLR 499 at 505.
Types of appeals involve severity (conviction or all grounds) appeals and understanding the principles behind the 2 pronged approach referred to in R v Way  NSWCCA 131 and the objective seriousness of the offence, along with other matters considered pursuant to s 21 A.
Such matters are now guided by the recent authority of Muldrock v The Queen  HCA 39 and considered errors made on Appeal by the CCA.
Much of these laws and cases change meaning over time and so ETB Legal urges the reader to seek advice, as new cases constantly emerge and change the effectiveness of using certain cases.
Appeals are complex and can be affected by the sentencing trends of the day.
In some ways, if you have a matter that involves the current ‘hot topic’ of the day, eg domestic violence, it can impact the initial penalty you receive and then the appeal process as well.
ETB Legal can appear on all Appeal matters, so if you are appealing a Court sentence – we can assist you.
This includes the District Court for appeals on less serious matters, including traffic related road matters appealed from the local court or serious domestic violence matters, to strictly indictable District Court matters warranting lengthy incarceration periods.