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(02) 9525 8688

Appeals on Conviction and Sentence

Thu, 02/07/2013 - 11:06 -- alexr

Sentencing

A sentencing Hearing takes place after you have entered a plea of guilty or are found guilty. There are a range of factors which the Judge must take into account when sentencing including punishment, protecting the community and rehabilitation.

Our experienced Criminal Lawyers can ensure a judge takes into account your personal circumstances, employment, family and psychological history in sentencing you and that any sentence you receive is not excessive or unjust. We can also advise you as to whether or not any sentence should be appealed and the likelihood of your success on appeal.

The Law

There are a number of purposes of sentencing:

  • to ensure that the offender is adequately punished for the offence,
  • to prevent crime by deterring the offender and other persons from committing similar offences,
  • to protect the community from the offender
  • to promote the rehabilitation of the offender,
  • to make the offender accountable for his or her actions,
  • to denounce the conduct of the offender,
  • to recognise the harm done to the victim of the crime and the community.

The options available to the court in sentencing include:

  • Bond
  • dismissal and conditional discharge
  • rising of the court
  • deferred sentence
  • fine
  • community service order
  • intensive correction order
  • home detention
  • suspended sentence
  • full time custodial imprisonment

Imprisonment should only be ordered when there is no other appropriate form of punishment. The court may also impose a penalty but defer the sentence, which is known as a suspended sentence. Some jurisdictions have maximum sentences that can be imposed. The Local Court cannot impose a penalty of longer then two years for one offence.

During the sentencing process the court may exercise something known as Griffiths Remand, which is where the court will defer passing a sentence for a period of up to 12 months so that the offender can be assessed for rehabilitation.

Another form of rehabilitation programme that may be imposed on an offender is a community service order. S 8 of the Crimes ( Sentencing Procedure) Act 1999 a court can impose a community service order of up to 500 hours.

Sentences can be applied concurrently or cumulatively. Concurrent sentencing is a method by which your time in custody for multiple offences can be significantly reduced by having more than one sentence run at the same time.

As rehabilitation is a major factor for the Court to consider in sentencing it is important that you are properly advised as to rehabilitation programmes and the operation of the Drug Court and the Magistrates Early Referral Into Treatment Program (MERIT).

The Drug court, under the Drug Court Act 1998 is given power to hear matters regarding those accused who have committed offences and are currently dependant on prohibited drug. There are however criteria that must be fulfilled in order to fall within the Courts Jurisdiction. The main advantage of having your case referred to the Drug Court is that it has the authority to send accused to programs which seek to diminish their dependence on the prohibited drug.

The MERIT program is available to aid offenders with illicit drug use programmes who meet the criteris set out in the legislation and are not charged with violent offences. The MERIT system is a complex issue so it is recommended that you speak to a solicitor if you have any questions regarding it.

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Discount on Sentencing for Early Plea

A person is legally entitled to an automatic 25% discount in sentence for a plea of guilty at the earliest opportunity. However, the earliest opportunity to plead guilty is not when the Police first charge you, it is once all of their evidence has been provided.

Our team of Criminal Lawyers can ensure the Police provide us with all of the evidence can analyse the evidence against you, before advising you about your prospects of success for defending a criminal charge. In the event that a defence is not available, our team can make submissions on your behalf to lessen any sentence received, and ensure you receive the 25% discount on sentence.

The Law

In NSW by law you are entitled to a discount if you enter into a plea of guilty at the first reasonable opportunity to do so. There are a number of reasons why the Court is so determined that those who enter pleas of guilty early receive lesser sentences. The main reasons are that it will usually save the victim from giving evidence, shows some remorse on the part of the accused and saves the court time. The discount is taken of your head sentence i.e time served, and not your parole period.

You should know that the Court has said that even though pleading guilty does entitle you to a discount on your sentence, entering a plea of not- guilty will not penalise you in any way.
 

Committal Hearings

S3 of the Criminal Procedure Act states that if you are charged with an indictable offence you must go before a committal hearing in order to determine if there is a case for you to stand trial.

Generally Committal hearings are heard in the open and are rarely restricted from the public however in some instances your name may be suppressed or the court may be closed to the public and an order made to stop the publication of evidence in either whole or part form.

At the end of the committal hearing the magistrate will make a ruling as to whether or not there is a case for you to stand trial. The basis for this decision is whether or not there is a reasonable prospect that the jury would convict you. If there is you will need to stand trial, if not the charges will likely be dismissed.

In some cases costs can be awarded when charges are dismissed such as where charges were laid without reasonable cause or where the investigation against you was done in bad faith.

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Criminal Appeals

If you are found guilty you may still lodge an appeal within 28 days of receiving your sentence. Our team of Criminal Lawyers are experienced in identifying potential grounds for appeal, including severity of sentence and an error at law.

If you wish to appeal your sentence you should contact us immediately.

The Law

If the case was originally decided in the Local Court then it will be appealed to the District Court and this appeal must be made within 28 days of the original sentence unless leave is granted by the court. The purpose of this appeal is not to bring forth new evidence but rather to go over the transcript of the original case and for the Judge to decide whether he is satisfied beyond reasonable doubt of the guilt of the accused. If still unsuccessful on appeal then the conviction can be appealed to the Court of Criminal Appeal where there is an error at law.

Appeals from the local to the Supreme Court or the Criminal Court of Appeal are limited to those which are only on questions of law alone.

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