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Appeals by the prosecution

Appeal against sentence

The prosecution does not have an automatic right to appeal although they may appeal against the sentence that was ordered if they believe that it is in the public interest. These appeals are heard in the County or Supreme Court, depending on the role of the trial magistrate.

See ss. 257, 258—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Time limits

The DPP has 28 days after the sentence is handed down to file a Notice of Appeal. This must be done in the Magistrates' Court. They then have 7 days to serve the notice of appeal on the respondent. This notice must be served personally. They must also provide a copy of the notice to the lawyer who last represented the respondent.

Appeal against sentence for breach of undertaking

Sometimes the accused may be given a more lenient sentence because they promised to help the prosecution with the investigation of a criminal matter. If the person later fails to keep this promise, the prosecution may appeal to the County Court (or to the Trial Division of the Supreme Court if the trial magistrate is a dual commission holder). This appeal will be an appeal against sentence, based on the breach of agreement.

If the court decides that the respondent has failed to fulfil an undertaking, the County Court may set the sentence aside and resentence the respondent. It will not be a rehearing.

No further appeals against sentence are possible for a failure to fulfil and undertaking.

See ss. 260, 261,262—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Time limits?

No time limit is set for these appeals as it may take some time to recognise that the respondent has failed to comply with the undertaking.

See s. 260(2)—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Notifying the respondent

The respondent must be served personally within 14 days from the appeal notice being filed.

Appeals to the Supreme Court

The DPP may appeal to the Supreme Court on a question of law.

See Appeals to the Supreme Court.

Appeals to the Court of Appeal

The DPP may also appeal to the Supreme Court under some circumstances if no prison sentence was imposed for a category 2 offence by the County or Supreme Court on an appeal from the Magistrates' Court.

See Appeals to Court of Appeal

What is a category 2 offence?

Category 2 offences are serious offences listed in the definitions section of the Sentencing Act 1991 (Vic) that have been committed by an adult. They include manslaughter, intentionally causing serious injury, kidnapping, armed robbery, arson causing death, carjacking and home invasion.

See ss. 3, 5(2H) and Part 3, Div 2—Sentencing Act 1991 (Vic)(opens in a new window).

More information

Legislation

Criminal Procedure Act 2009 (Vic)

  • s. 257—DPP's right of appeal
  • s. 258—how an appeal is started
  • s. 259—making a decision about the DPP's appeal
  • s. 260—DPP appeal if person fails to fulfil an undertaking
  • s. 261—how an appeal is started
  • s. 262—making a decision about the person's failure to fulfil an undertaking
  • s. 290A—right of appeal against certain sentences imposed by County or Supreme Court on appeal from Magistrates' Court
  • s. 290B—how appeal is commenced

See Criminal Procedure Act 2009 (Vic)(opens in a new window).

County Court Criminal Procedure Rules 2019 (Vic)

  • r. 3.03—appeal by DPP against sentence or failure to fulfil undertaking
  • Form 3C—Notice of appeal by DPP against sentence imposed by magistrates' court/failure of person to fulfil undertaking

See County Court Criminal Procedure Rules 2019 (Vic).

Magistrates' Court Criminal Procedure Rules 2019 (Vic)

  • r. 77—defines 'appropriate court' as the County Court or to the Supreme Court if the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder
  • r. 78—procedure on appeal from Magistrates' court to appropriate court

See Magistrates' Court Criminal Procedure Rules 2019 (Vic)(opens in a new window).

Sentencing Act 1991 (Vic)

  • s. 3(1)—lists the category 2 offences
  • s. 5(2H)—states that a court must make a custodial order and provides exceptions
  • Part 3, Division 2—Custodial orders

See Sentencing Act 1991 (Vic)(opens in a new window).

Reference

Judicial College of Victoria

The Victorian Proceedings Manual has information about the various kinds of criminal appeals.

See Victorian Criminal Proceedings Manual—Appeals—Chapter 20(opens in a new window).

Acknowledgement

Thanks to VLA's Erin VanKrimpen, Senior Advocate in the Appeals and Strategy team for assisting with this topic.

Updated