CRIMINAL APPEALS: DIFFERENT TYPES AND THE IMPORTANCE OF THEM

TYPES OF CRIMINAL APPEALS

A criminal appeal is a legal process where a higher court reviews the decision of a lower court.

In the NSW legal system, there are three primary types of criminal appeals:

1. Severity appeal or Sentence appeal: Challenge the harshness of the imposed sentence;
2. Conviction appeal: Contest the finding of guilt; and
3. All grounds appeal: Challenge both the conviction and the severity of the sentence.

OverLaw Legal Services has run similar matters in the District Court. Please call us on 02 9605 7113 or 02 4625 1440 if you require further assistance.

THE IMPORTANCE OF BEING ABLE TO APPEAL

The recent decision of Allsopp v R[1] highlights the importance of the ability to appeal.

In this case, the appellant plead guilty to an offence of high range drink driving and was sentenced by a Magistrate in the Local Court to a term of 11 months’ imprisonment with a non-parole period of 6 months. They were also disqualified from driving for 9 months and subject to a mandatory interlock order for 24 months.[2]

The appellant lodged a severity appeal to Campbelltown District Court.

The sentencing Magistrate then denied a bail application made by the appellant pending the outcome of the appeal. The District Court found that bail should not have been refused in this case. In doing so, it “undermines the integrity of the appellate system of review”.[3]

The appellant had the right to appeal but the Magistrate ensured that the sentence given was served at least until the hearing date of the appeal. Consequently, the appellant spent 15 days in custody.[4]

The Court found that the severity of the sentence made the case an outlier and the approach by the Magistrate was “contrary to the interests of justice”.[5]

Furthermore, the evidence provided on sentence demonstrates the appellant’s remorse, their acceptance of responsibility, display of insight, good prospects of rehabilitation, low risk of reoffending, and how they are otherwise a respected and admired member of the community.[6]

The Court found that the appellant was a relatively young, had not previously committed a criminal offence, was employed and pro-social, had begun to address the underlying mental health factors that contributed to their excessive alcohol consumption, and would benefit from Community Corrections supervision.[7]

The appellant was resentenced to 10 months’ imprisonment to be served by Intensive Correction Order. The conditions of that order include not committing any offences, being supervised by Community Corrections, performing 100 hours of community service; and engaging in grief and alcohol abuse counselling. They were also disqualified from driving for 9 months and subject to a mandatory interlock order for 24 months.[8]

[1] Allsopp v R [2025] NSWDC 338.

[2] [2].

[3] [8].

[4] [5], [8].

[5] [9]

[6] [36].

[7] [48].

[8] [49].