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Prosecution appeals

Table 13: Prosecution appeals and outcomes

DESCRIPTION OF APPEAL

2018–19 OUTCOME

2019–20 OUTCOME

Prosecution sentence appeals in summary prosecutions

3 appeals, 2 were upheld

1 appeal, 1 was upheld

Prosecution sentence appeal in a prosecution on indictment

12 appeals, 6 were upheld

8 appeals, 5 were upheld

The Prosecution Policy of the Commonwealth provides that the Director’s right to appeal against sentence should be exercised with appropriate restraint. Factors we may consider when deciding to appeal include whether:

  • the sentence is manifestly inadequate
  • the sentence reveals an inconsistency in sentencing standards
  • the sentence proceeded on the basis of a material error of law or fact requiring appellate correction
  • the sentencing is substantially and unnecessarily inconsistent with other relevant sentences
  • an appeal to a Court of Appeal will enable the court to lay down some general principles for the governance and guidance of sentencing courts
  • an appeal will enable the court to establish and maintain adequate standards of punishment for crime
  • an appeal will ensure, so far as the subject matter permits, uniformity in sentencing
    • an appeal will enable an appellate court to correct an error of legal principle, and
    • we only institute appeal proceedings when there are reasonable prospects of success.

The CDPP’s appellate practice plays an important role in providing an effective prosecution service. It also contributes to maintaining public respect in the justice system by seeking to remedy sentences that are significantly out of touch with sentencing standards.

In some cases, CDPP appeals may not be upheld, despite the court finding there has been an error in law or in the application of sentencing principles. In all appeal cases, the appellate courts have a residual discretion not to intervene and re‑sentence, if the court believes that to do so would result in an injustice to the offender due to other circumstances. Such cases are still critically important as they provide future guidance about the proper application of legal principles in the sentencing of Commonwealth offenders.

In 2019–20, a total of eight prosecution sentence appeals were decided for indictable matters, with five of the appeals being successful. That represents an outcome of 62 per cent of appeals being upheld, which not only exceeds our target of 60 per cent, but is a significant improvement on the result for the 2018–19 year, which was 50 per cent.

While appellate intervention did not occur in three of the appeals brought by the CDPP, the judgments provided useful guidance in relation to sentencing principles, and in the exercise of the residual discretion on appeal.

Table 14: Prosecution appeals in indictable matters by practice group

PRACTICE GROUP

OFFENCE

TOTAL NUMBER OF APPEALS

NUMBER OF APPEALS UPHELD

NUMBER OF APPEALS NOT ALLOWED

Illegal Imports and Exports (IIE)

Drug importation offences

5

3

2

International Assistance and Specialist Agencies (IASA)

Environment/ Trafficking in wildlife

1

1

0

Organised Crime and Counter Terrorism (OCCT)

Terrorism, Serious and Organised Crime

2

1

1

Total

8

5

3

Notes: IIE: Appeals upheld were in New South Wales (1) Victoria (1) and South Australia (1), appeals dismissed were in South Australia (2)

IASA: Appeal upheld was in New South Wales (1)

OCCT: Appeal upheld was in Victoria (1), appeal dismissed was in New South Wales (1)