A sentence can sometimes be changed through a process known as an appeal. An appeal is a review of a person’s conviction and/or the sentence a court has given by a higher court.
The person sentenced, the prosecution or the Attorney-General can appeal against a Magistrates Court sentence to a District Court judge, usually within one month.
The judge will generally rehear the sentence (based on the evidence that was before the magistrate).The judge will only interfere with the original sentence if the sentence was plainly too harsh or too lenient.
The judge can either:
- leave the sentence as it is
- set the sentence aside and send it back to the Magistrates Court with certain instructions
- change the sentence (such as making it longer or shorter)
- give a different sentence.
Appeals by the Queensland Government Attorney-General
The Attorney-General can appeal a magistrate’s sentence to a District Court judge for less serious (summary) offences.
The Attorney-General can also appeal a magistrate’s sentence to the Court of Appeal if the offence is an indictable offence.
Alternatively, a child, Youth Justice acting in the child’s interest, or the prosecution can apply (usually within a month) to a judge of the Childrens Court of Queensland to review a Childrens Court magistrate’s sentence.
This is different to an appeal, as the judge does not need to find that there was a mistake or that the original sentence was plainly wrong. However, the judge can still change the sentence, give a different sentence, or leave the sentence as it is.
If a person has been sentenced in a higher court (the District Court, Childrens Court of Queensland or Supreme Court), either they, or the Attorney-General, can appeal the sentence in the Court of Appeal, usually within one month.
A District Court’s decision following an appeal from a magistrate’s sentence can also be appealed to the Court of Appeal.
The Court of Appeal is made up of 3 or 5 Supreme Court judges. There is no jury. The court decides whether the lower courts made a legal error in sentencing, or whether the sentence was plainly too harsh or too lenient.
The Attorney-General can appeal without getting permission. The sentenced person must ask the Court of Appeal’s permission before they can appeal against their sentence.
The Court of Appeal can:
- dismiss the appeal (which means the sentence stays the same)
- allow the appeal, and then increase, decrease, vary the sentence, or sometimes even though they have found an error they will leave the sentence as it is.
The final appeal option is to seek permission within 28 days to appeal to the High Court, Australia’s highest court, which is usually made up of 7 justices. The High Court only deals with legal matters of wider public importance.