Victorian Numbered Acts

JUSTICE LEGISLATION MISCELLANEOUS AMENDMENT ACT 2018 (NO. 48 OF 2018) - SECT 36

After section 290 of the Criminal Procedure Act 2009 insert —

        " 290A     Right of appeal against certain sentences imposed by County Court or Supreme Court on appeal from Magistrates' Court

    (1)     This section applies to a sentence imposed under section 256 on an appeal under section 254 where the County Court or the Trial Division of the Supreme Court, as the case requires, made a finding—

        (a)     under section 5(2H)(a), (b), (c), (d) or (e) of the Sentencing Act 1991 ; or

        (b)     under section 10A of that Act that a special reason exists.

    (2)     The DPP may appeal to the Court of Appeal against a sentence referred to in subsection (1) if the DPP—

        (a)     considers that there is an error in the sentence imposed and that a different sentence should be imposed; and

        (b)     is satisfied that an appeal should be brought in the public interest.

        290B     How appeal is commenced

    (1)     An appeal under section 290A is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the sentence is imposed or any extension of that period granted under section 313.

    (2)     A notice of appeal under subsection (1) must be signed by the DPP personally.

    (3)     A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 within 7 days after the day on which the notice of appeal is filed.

    (4)     The DPP must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the criminal proceeding to which the appeal relates, if that legal practitioner can reasonably be identified.

        290C     Determination of Crown appeal under section 290A

    (1)         On an appeal under section 290A, the Court of Appeal must allow the appeal if the DPP satisfies the court that—

        (a)     there is an error in the sentence imposed by the County Court or the Trial Division of the Supreme Court; and

        (b)     a different sentence should be imposed.

    (2)     In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.

    (3)     In any other case, the Court of Appeal must dismiss an appeal under section 290A.

        290D     Orders etc. on successful appeal

    (1)     If the Court of Appeal allows an appeal under section 290A, it must set aside the sentence imposed by the County Court or the Trial Division of the Supreme Court and impose the sentence, whether more or less severe, that it considers appropriate.

    (2)     If the Court of Appeal imposes a sentence under subsection (1), it may make any other order that it considers ought to be made.

    (3)     In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.".