De novo appeals against sentence to be removed


Posted By on 3/08/18 at 7:56 AM

Having acted for corporate accused who have been exposed to the inefficiency and costs of running a plea twice (in the summary and then appellate jurisdiction) on the same evidence, material and submissions, the amendments proposed by the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018 are welcome.

Current position

An appeal by the Director of Public Prosecutions against a sentence imposed by the Victorian Magistrates’ Court in a criminal proceeding against a corporate accused for a breach of OHS laws must be conducted as a rehearing de novo (ie evidence presented afresh on appeal).  The County Court sets aside the decision of the Magistrate, hears all the evidence again, considers the evidence afresh and makes a decision.  Victoria is the only Australian jurisdiction that has a de novo appeal process for these appeals against sentence.


De novo appeals impose significant and unnecessary costs on the accused and are inefficient.  The entire case has to be re-run before a different judicial decision-maker.  They also undermine the decision of Magistrates where a different sentencing outcome commonly occurs in the County Court.

Proposed changes

The Bill  seeks to change the above approach in the Criminal Procedure Act 2009 by only requiring one evidentiary hearing.  Under this Bill’s proposals, an appeal against sentence will be determined on the evidence presented in the Magistrates’ Court and there will be limited circumstances where the appeal court can receive further evidence (ie in the interests of justice and where substantially relevant to a fact in issue in the appeal).  The County Court will determine the appeal using the transcript of evidence given in the Magistrates Court.  The County Court will consider any other evidence, material of information relating to matters that occurred after sentencing.  An appeal must be dismissed unless there are compelling reasons to impose a different sentence to that imposed by the Magistrates Court.  The presumption is that the Magistrates’ Court’s sentence decision is correct and then whether there are any compelling reasons to depart and impose a different sentence.

Timing of changes

The Bill has not yet been passed.  The second reading speech of the Bill in the Legislative Assembly was conducted on 25 July 2018.  The Bill is scheduled for further debate.  Unless proclaimed earlier, provisions of the Bill come into operation on 2 March 2020.

This article was written by Gina Capasso (Principal Solicitor).

Chris Gianatti

Chris Gianatti Director

Chris worked for a number of years with Corrs before moving in-house to Telstra as HR Legal Counsel for the “Factory” (covering Telstra’s back of house operations including the field... Read More