The Court: County Court of Victoria
The Lawyer: Rebecca Glew
The Charges:
The Allegations:
The client was driving to a party in Yarragon, Victoria. He was driving at 170km/hr in a 110km/hr zone. The client had a passenger in the motor vehicle at the time. There were no other vehicles on the road except for a police officer.
When the client was charged with the offences, he engaged a solicitor from another firm and appeared at Frankston Magistrates Court. Despite the client’s limited criminal history, he was sentenced to a 200-hour Community Based Order (now Community Correction Order), a four-month suspended gaol sentence, and lost his driver’s licence for four years.
A person has the right to appeal against the sentence received or the sentence and conviction received in the Magistrates Court within 28 days of receiving the original sentence.
In this case, the client’s original lawyer never advised him that he had a right to appeal the sentence and conviction received in the Magistrates Court to the County Court within 28 days. Therefore, the client accepted the sentence received.
Over a year later, the client engaged our office and sought advice on appealing the decision in the Magistrates Court outside of the 28-day time limit.
The client was relatively unfamiliar with the legal process. He later indicated that his previous solicitor had not advised him about his appeal rights. He thought he could appeal any time, so he attended our office 15 months later and instructed us to lodge an appeal to the County Court.
At Court:
This was a difficult appeal because, under the Criminal Procedure Act, any appeal from the Magistrates’ Court must be lodged within 28 days of the sentence. The client was attempting to appeal some 15 months after the sentence.
When attempting to lodge an appeal out of time (after the 28-day limit), we must first seek leave from the court to appeal out of time (under section 263 of the Criminal Procedure Act).
To be successful, we had to convince the court that there were exceptional circumstances for the client’s failure to file the appeal within time and satisfy the court that the delay would not unfairly prejudice the police case.
According to the Criminal Procedure Act, the original decision is irrelevant when seeking leave to appeal out of time. The court must only consider whether filing an appeal out of time was due to exceptional circumstances.
The client was required to give evidence at the hearing. The Judge accepted that the combination of the client’s lack of experience in the criminal justice system and the lack of advice provided by the previous solicitor constituted ‘exceptional circumstances‘.
The Outcome:
The Judge granted leave to appeal the decision, heard the appeal, and, following extensive submissions from our solicitor, set aside the original decision in the Magistrates Court and re-sentenced our client to a moderate fine of $1,000 and a non-conviction was recorded. The driver’s licence cancellation was reduced to two years.
