Victoria’s Department of Public Prosecutions has recently lodged an appeal against the 9-year sentence imposed on Borce Ristevski.
Mr Ristevski’s sentence was imposed after he pleaded guilty to the manslaughter of his wife in 2016.
The DPP is appealing on the grounds that the sentence and non-parole period is ‘manifestly inadequate’.
While this is a Victorian case, it presents an opportunity to examine the appeal processes that are in place in NSW.
Appealing from the Local Court
If you have been convicted of an offence in the Local Court, you have a right to appeal to the District Court.
This right is protected under section 11 of the Crimes (Appeal and Review) Act 2001.
The Act stipulates that any person who has been convicted or sentenced by the Local Court has a right to appeal to the District Court against the conviction or sentence (or both).
This means that you can appeal against the verdict (i.e. the Court has found you guilty and you believe you are innocent). This is called a conviction appeal.
You may also appeal the sentence that has been imposed (i.e. you believe the penalty is too harsh). This is called a sentence appeal.
If you appeal both your conviction and your sentence this is called an all grounds appeal.
If you wish to appeal your conviction you can do so once your sentence is imposed. An appeal must then be lodged within 28 days from the sentencing.
Applications for annulment
If the Local Court makes a decision in your absence, you can appeal to the Local Court to annul that decision under section 4 of the Act.
If you are successful in getting the decision annulled, then the decision of the Local Court no longer stands.
You then have the opportunity to plead guilty or not guilty and the matter will be heard in court.
In most cases, the court will only annul a conviction if you can prove that you were unaware of the court proceedings, or you were unable to attend because of an extenuating circumstance (for example, if you were severely ill or had been in an accident).
However, applications for annulments must be made within 2 years of the conviction/sentence being imposed.
Appealing from the District or Supreme Courts
If you are convicted or sentenced in either the District or Supreme Courts and lodge an appeal this is called an ‘indictable appeal’.
Indictable appeals are heard by the NSW Court of Criminal Appeal (NSWCCA).
However, unlike appealing from the Local Court, there is no ‘right of appeal’ to the NSWCCA. In order to appeal to the NSWCCA, you must obtain leave from the court.
If you wish to appeal a decision, you must file a Notice with the NSWCCA within 21 days of the conviction/sentence being imposed.
When will the court grant leave?
A person convicted on indictment may be granted leave to appeal against their conviction on any ground which involves a question of law.
According to section 6 of the Criminal Appeal Act 1912 (NSW), the Court will generally allow an appeal if it is of the opinion that:
- A verdict was unreasonable or cannot be supported (having regard to the evidence); or
- There has been a wrong decision made regarding a question of law; or
- There has been a miscarriage of justice
The Court will generally only grant leave to appeal the severity of a sentence if:
- The sentencing judge has made an error of law; or
- The sentencing judge was guided by irrelevant or extreme considerations; or
- The sentence was manifestly excessive (or, if the Crown appeals, manifestly inadequate).
The appeal process is complex. If you require advice or representation for a criminal appeal it is vital to engage the assistance of an experienced criminal lawyer.