Can You Appeal a Criminal Conviction or Sentence in Victoria?
A criminal conviction or sentence can have serious consequences, including imprisonment, fines, community correction orders, licence consequences, employment issues and restrictions on travel.
In Victoria, a person who has been convicted of a criminal offence may be able to appeal the conviction, the sentence imposed, or both.
The Prosecution may also appeal a sentence where it believes an error has been made in the criminal process and that it is in the public interest for the sentence or conviction to be reviewed on appeal.
The available appeal process depends on:
which court made the decision;
whether the person pleaded guilty or was found guilty after a hearing or trial;
whether the appeal relates to the conviction, sentence or both; and
whether the required time limits have been met.
This article explains the main types of criminal appeals in Victoria, the courts involved and the factors considered when determining whether an appeal may be available.
What Is a Criminal Appeal?
A criminal appeal is an application asking a higher court to review a decision made by a lower court.
An appeal may challenge:
the conviction (the finding that a person is guilty);
the sentence (the penalty imposed after a finding of guilt); or
both the conviction and sentence.
A conviction appeal and a sentence appeal are different.
A conviction appeal argues that the finding of guilt should be changed.
A sentence appeal argues that the penalty imposed was wrong, excessive or affected by an error.
Appealing a Criminal Conviction in Victoria
The appeal process depends on which court imposed the conviction.
Appealing a Magistrates’ Court Conviction
Many Victorian criminal matters are finalised in the Magistrates’ Court.
If a person is found guilty after pleading not guilty, they may generally appeal the conviction to the County Court.
The County Court considers the evidence afresh and makes its own decision.
The appeal is not about whether the magistrate made a mistake. The County Court may:
hear evidence from witnesses;
consider evidence; and
decide whether the prosecution has proved the charge beyond reasonable doubt.
Appealing a Conviction After Pleading Guilty
Appealing a conviction after a guilty plea is more difficult because the conviction is based on the accused person’s admission of guilt.
In limited circumstances, a person may be able to challenge a guilty plea where there is an issue such as:
the plea was not properly informed;
the plea was not voluntary;
the plea was not clear or unequivocal; or
there was another significant issue affecting the plea.
These matters depend heavily on the individual circumstances and require careful legal assessment.
Appealing a County Court or Supreme Court Conviction
Where a person is convicted in the County Court or Supreme Court, an appeal is made to the Court of Appeal.
Unlike a Magistrates’ Court appeal, this is not usually a complete rehearing of the evidence.
The Court of Appeal considers whether there was an error that affected the safety of the conviction.
A person generally requires leave to appeal before proceeding.
Leave means permission from the Court to bring the appeal.
The Court will consider whether the proposed appeal has a real prospect of success.
Common Grounds for a Conviction Appeal
The grounds of appeal depend on the circumstances, but may include:
The Verdict Was Unreasonable
An appeal may argue that the evidence could not properly support a finding of guilt beyond reasonable doubt.
There Was an Error of Law
This may include:
incorrect legal directions;
improper admission or exclusion of evidence;
mistakes about the law applying to the offence; or
other legal errors affecting the trial.
There Was a Miscarriage of Justice
This may apply where something occurred during the proceeding that meant the accused did not receive a fair hearing.
New Evidence Has Become Available
In some circumstances, fresh evidence may support an appeal if it could have affected the outcome.
What Can an Appeal Court Do?
If a conviction appeal succeeds, the court may:
set aside the conviction;
enter an acquittal;
order a retrial;
substitute another verdict where permitted; or
make another appropriate order.
If the appeal is unsuccessful, the conviction remains in place.
Appealing a Criminal Sentence in Victoria
A sentence appeal challenges the penalty imposed after a person has been convicted or pleaded guilty.
A sentence appeal does not challenge the conviction itself.
A sentence appeal may argue that the sentence was:
manifestly excessive;
manifestly inadequate;
based on an error of law;
based on incorrect facts;
affected by a failure to consider relevant mitigating or aggravating circumstances; or
outside the range of sentences reasonably available.
How Long Do You Have to Appeal a Sentence in Victoria?
Strict time limits apply to criminal sentence appeals.
The usual time limit is:
28 days from the date of sentence.
The appeal process depends on the court that imposed the sentence.
| Original Court | Appeal Court | Usual Time Limit |
|---|---|---|
| Magistrates’ Court | County Court | 28 days from sentence |
| County Court | Court of Appeal | 28 days from sentence |
| Supreme Court | Court of Appeal | 28 days from sentence |
If the 28-day period has passed, an extension of time may be possible, but the delay must usually be explained.
Appealing a Sentence from the Magistrates’ Court
A sentence appeal from the Magistrates’ Court is generally heard in the County Court.
The County Court conducts a fresh sentencing exercise and may:
reduce the sentence;
confirm the original sentence; or
in some circumstances, impose a more severe sentence.
A County Court judge can increase the sentence imposed by the Magistrate but must first warn the appellant and give them the chance to withdraw the appeal. The risk of an increased sentence should always be considered before appealing.
Appealing a Sentence from the County Court or Supreme Court
Sentence appeals from the County Court or Supreme Court are made to the Court of Appeal.
A person must usually obtain leave to appeal.
The Court considers whether the proposed appeal has a real prospect of success before allowing the matter to proceed.
Common Grounds for a Sentence Appeal
Common grounds include:
The Sentence Was Manifestly Excessive
This means the sentence was outside the reasonable sentencing range considering:
the seriousness of the offending;
the circumstances of the offender;
previous convictions;
aggravating factors; and
mitigating factors.
The Judge Made a Sentencing Error
Examples may include:
misunderstanding the facts;
failing to consider relevant mitigation;
applying the wrong legal principles;
failing to properly consider a guilty plea; or
imposing a sentence not available under the law.
Relevant Material Was Not Considered
This may include:
rehabilitation evidence;
medical material;
employment circumstances;
treatment progress; or
other personal circumstances.
Does Filing an Appeal Stop the Sentence?
No.
Lodging an appeal does not automatically suspend the sentence.
Depending on the circumstances:
fines may remain payable;
licence disqualifications may continue;
community correction orders may remain in place; and
imprisonment may continue unless bail pending appeal is granted.
A separate application for bail may be required.
Can You Get Bail While Waiting for an Appeal?
Bail pending appeal is not automatic.
The court may consider:
the strength of the appeal;
the likely timeframe for hearing;
the sentence imposed;
risks to community safety;
previous compliance with bail; and
the likelihood of attending court.
Can You Appeal After 28 Days?
Sometimes.
A person may apply for an extension of time, but the court will consider factors including:
the length of delay;
the reason for the delay;
the merits of the appeal;
any prejudice caused; and
the interests of justice.
The longer the delay, the more difficult an extension may become.
Key Points
Criminal convictions and sentences can sometimes be appealed in Victoria.
The appeal process depends on the court that made the decision.
Magistrates’ Court appeals usually go to the County Court.
County Court and Supreme Court appeals usually require leave from the Court of Appeal.
The usual time limit for sentence appeals is 28 days.
Appeal decisions involve careful assessment of the prospects of success and potential risks.
Reviewed by: Lucy Massouras
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.