In essence, a severity appeal is an appeal against the severity of a sentence handed down by the Local Court. In layman's terms, it's essentially saying to the Court - “Your Honour, I am not denying my guilt, but the punishment in the Local Court was too harsh, can you please give me a more lenient sentence!". Thus, in severity appeals the Local Court of NSW has already found the defendant guilty, but the appeal isn't about guilt or innocence—it's about the fairness of the punishment.
If you feel the original sentence was too harsh, you must file a notice of appeal within 28 days of the sentence being imposed. The notice of appeal must be filed in any Local Court registry and the appropriate filing fee must be paid (currently $126.00 as of June 2023)
On the day of the appeal hearing at the District Court, it's crucial to be prepared. The preparation involves gathering relevant materials, such as a copy of the initial Local Court case, any supporting documents, and character references. The judge will also consider any changes in personal circumstances or rehabilitative efforts undertaken since the original sentencing.
During the hearing, the judge has the discretion to increase, decrease, or leave the sentence unchanged. This is where the gamble lies, as the appealing party risks receiving a harsher sentence. It's a decision that needs to be carefully considered with the help of an experienced criminal lawyer.
If the Court considers imposing a harsher sentence than the original, the presiding magistrate will be required to issue the so called “Parker warning”. This caution is typically given when the judge is considering imposing a harsher sentence than the original, thus giving the defendant the opportunity to withdraw their appeal if they choose.
One of the often overlooked but fundamental aspects of a severity appeal is the importance of eloquent and compelling advocacy. The ability to tell a client's story, to humanise them in the eyes of the judge, is paramount. This narrative could significantly influence the judge's perception of the defendant and, in turn, the outcome of the appeal. The judge needs to be persuaded that the sentence was indeed too severe, and that a more lenient one would be just and appropriate.
To achieve this, the appellant would need to demonstrate to the Court that the initial sentence was excessive and more severe than other similar cases. They may also argue that the Local Court failed to consider crucial factors such as the defendant's character, mitigating factors, remorse, or rehabilitation efforts.
Although navigating severity appeals can be challenging, they can be a powerful tool in the pursuit of a more balanced and fair outcome. It's essential to remember that each case is unique, and a successful appeal requires not only a strong understanding of the law, but also the art of persuasive storytelling.
In conclusion, severity appeals from the Local Court to the District Court are a vital component of the criminal justice system in NSW. They ensure that justice isn't just about guilt or innocence but also about proportionality and fairness of punishment. Despite the risk of a harsher sentence, severity appeals can be a game-changer for many defendants, given the right guidance, preparation, and representation. Contact Surge Legal now on 02 8722 5021 if you need advice or representation in relation to your criminal appeal matter.