Analyse court rulings and explain to client

When it comes to deciding on the appropriate sentence for the client, the options available to the court will depend on the offence that has committed. Some offences can attract no more than a fine, while others are serious enough for imprisonment to be an option. For certain offences the court has no option and must impose a minimum fine or a minimum term of imprisonment. Some offences are State offences and others are Commonwealth offences and this also affects what the court can do when it sentences the client.

The following is a list of the sentencing options available in the Magistrates’ Court for State offences:

·      No penalty

·      Conditional Release Order

·      Fine

·      Community Based Order with or without community service work or other requirements

·      Intensive Supervision Order with or without community service work or other requirements

·      Suspended term of imprisonment

·      Conditional suspended term of imprisonment (option if appearing in the Drug Court)

·      Immediate imprisonment.[1]

After your matter has been dealt with and the sentence handed down it is important that you speak with your client. In some cases this will mean going down to the court cells for an interview. You will need to take this opportunity to explain what occurred in court, what the sentence was, appeal options and respond to any questions  your client may have.

Identify the client’s responsibilities and available options for action consistent with court rulings

After any sentence, but particularly after the imposition of a jail sentence, it is a wise practice to speak to the client to discuss the result and consider, if appropriate, the possibility of appeal. If the client is not happy about the Magistrate’s decision, they can appeal. Appeal can be made against the conviction and or sentence or both. Leave to appeal can be made up to three months after the date of conviction and sentence. The client can lodge the appeal form at court (or from jail if they have received a jail sentence). There is a fee for lodging an appeal form. They must lodge the appeal within 28 days of the sentence/conviction date. In some circumstances this can be extended to three months with the permission of the Supreme Court. The appeal process is set out in the Crimes (Appeal and Review) Act 2001 (NSW), predominately in section 11.

If you have been sentenced to a short gaol sentence, appeals bail (bail granted while you are awaiting an appeal on conviction or sentence) may be given. With longer prison sentences, appeals bail is very hard to obtain.[2]

A practitioner must explain the client’s rights, but also their responsibilities. If for example, the client has to pay a fine, the practitioner will explain how the client will undertake the payment process. It is necessary to ensure the client is aware of their obligation to pay the fine within a certain time frame. In some situations, there may be payment plan options available for people who suffer from financial hardship. It is important that you explain these options and refer your client to obtain the correct forms to make such an application.

Example of Appeals form on following page:

 

IV

 

Criminal Appeal Act 1912

 

NOTICE OF APPEAL

or

NOTICE OF APPLICATION FOR LEAVE TO APPEAL

(Rule 23C of the Criminal Appeal Rules requires this notice to be accompanied by a statement of the grounds for appeal, written submissions in support of the appeal, a certificate of availability of transcript and exhibits, and a statement nominating the solicitor and counsel acting for the appellant)

 

NAME OF APPELLANT:____________________________________________________________

Date of Birth: _______________________

                                                                                    M.I.N.: ____________________________

                                                                                    CNI: ______________________________

                                                                                    Lower Court File No: _________________

 

THE APPELLANT APPEALS AGAINST:                          -    CONVICTION ONLY

-    CONVICTION AND SENTENCE

-  SENTENCE ONLY

 

PLEA ENTERED:                                                           -    GUILTY

-    NOT GUILTY

 

DETAILS OF COURT OF TRIAL:                                     -    SUPREME COURT

-    DISTRICT COURT

 

AT (Location):                                                             _________________________________

 

NAME OF JUDGE:                                                        _________________________________

 

DATES OF TRIAL AND SENTENCE HEARINGS:             _________________________________

                                                                                    _________________________________

 

DATE OF SENTENCE:                                                   _________________________________

 

CONVICTED OF (LIST ALL OFFENCES):            _________________________________

                                                                                    _________________________________

 

LONGEST SENTENCE:                                                  _________________________________

NON-PAROLE PERIOD:                                                            _________________________________

 

IF HELD IN CUSTODY, LOCATION OF GAOL:               _________________________________

 

IF NOT IN CUSTODY, RESIDENTIAL ADDRESS:            _________________________________

 

LEGAL REPRESENTATIVE:                                            _________________________________

(List name and address.  If seeking legal aid, an                                _________________________________

application must be sent to the Legal Aid Commission                                 _________________________________

of NSW)                                                                                   _________________________________

 

DOES APPELLANT WISH TO BE PRESENT AT HEARING OF APPEAL?              YES/NO

 

SIGNED (by appellant or solicitor or counsel):                       _________________________________

 

DATE:                                                                          _________________________________

 

Explain responsibilities and available options to the client and assist them to make their decision on preferred option

It may be that your client wishes to appeal their conviction or their sentence. You will need to provide them with advice about important court timeframes for filing documents, and the merits of the option and the appeals process.

The judge may increase the sentence should he or she consider the existing one too lenient. (Section 20(2)(b) Crimes (Appeal and Review) Act 2001 (NSW) allows the court to vary a sentence; section 3 defines this to include increasing it).

 

However, most practitioners would be aware of the “Parker warning” or “Parker direction”, a well-established rule of procedural fairness which requires the judge to warn the appellant of the intention to increase the sentence. Parker warnings may be very general, and the judge is only required to indicate that he or she is considering an increased sentence.

If a practitioner receives a Parker warning, they must take immediate instructions from their client, who will probably instruct them to seek leave to withdraw the appeal. Leave is required to withdraw an appeal[3] and is almost always granted even though the court is not bound to grant it.[4]