Sometimes a defence case can be thoroughly prepared, and well advocated in Court, but ultimately the Magistrate does not agree with your position.
So what are your rights if you are sentenced to imprisonment, but you wish to appeal this decision?
The Magistrates Court has the power to grant bail to a person awaiting an appeal to the District Court. This applies to both a conviction after trial, or on a plea of guilty resulting in a sentence of actual imprisonment. This form of bail is commonly referred to as ‘appeal bail’.
An application for appeal bail requires particular legal knowledge, as the law is different from an application for bail when you are first charged with an offence. Bail should only be granted in exceptional circumstances and only if the following two conditions are satisfied:
- There are strong grounds for concluding that the appeal will be allowed; and
- The sentence of actual imprisonment is likely to have been substantially served before the appeal is determined.
The first condition will require a thorough knowledge of the legal and/or factual issues at the original hearing. It will also require expertise of the law to be applied at the appeal hearing in the future. Your lawyer must always ask:
- Was the sentence manifestly excessive? Or was it harsh, but not excessive? A successful appeal from the Magistrates Court requires that a sentence be outside the appropriate range of penalty taking into account all relevant considerations. If a sentence is considered harsh, but not excessive, an appeal will fail. A skilled advocate will be aware of precedent decisions in the particular area, and have an in-depth knowledge of different types of penalties and sentences.
- Was there a specific legal or factual error made by the Magistrate? If the appellate court identifies a specific error made at the original hearing, it may set aside the sentence and substitute its own sentence. This will require close attention to what happened at the original hearing. Did the Magistrate misunderstand the facts put forward by the Prosecution? Was there a misapplication of legal principle?
The second condition requires knowledge of the timeframes taken to get to an appeal hearing. Usually, it can take many months to have an appeal heard due to delays outside of your control. Transcripts of the original proceeding can take months to be delivered, and there are timeframes for the filing of official material to the court registry. If you are at risk of serving your period of imprisonment prior to the appeal being heard, this second condition will be satisfied.
If you are sentenced to actual imprisonment for an offence, firstly seek advice about your prospects of successfully appealing the decision. It is true that an application for appeal bail is more difficult to achieve than an application for bail when you are first charged with an offence. However, with appropriate preparation, advice and representation, appeal bail in the Magistrates Court can be successfully achieved.
- Photo credit: August de Richelieu
