• DIRECTOR’S POLICY •
APPEALS BY THE DPP TO
THE COURT OF APPEAL
22-8-2014
Scope of and purpose of this Policy
1.
The purpose of this Policy is to set out the legislation relating to
Director's Appeals pursuant to s.287 and s.291 of the Criminal
Procedure Act 2009 and the criteria and procedures for bringing
such appeals. Previously, these appeal rights were contained
within ss.567A and 567A(1A) Crimes Act (1958). The appeal
provisions in ss.287 and 291 of the Criminal Procedure Act
2009 apply where sentence is delivered on or after 1 January
2010 (Schedule 4, Clause 10(4) Criminal Procedure Act 2009).
Legislation
2.
The relevant court rules are the Supreme Court (Criminal
Procedure) Rules 2008 (‘the Rules’) and the relevant Practice
Direction is the Supreme Court of Victoria Practice Direction
No. 2 of 2011 – Court of Appeal: Applications for Leave to
Appeal Against Conviction and Sentence (‘the Practice
Direction’).
3.
The Rules were amended by the Supreme Court (Chapter VI
Amendment No. 6) Rules 2011 (SR 6/2011). Rule 2.15 sets out
the requirements for appeals by the DPP under ss.287 and 291
and applies to all appeals instituted on or after 28 February
2011. The Practice Direction applies to all appeals filed on or
after 28 February 2011.
Right of Appeal – inadequate sentence
4.
The Director is empowered by s.287 of the Criminal Procedure
Act 2009 (“CPA”) to appeal to the Court of Appeal against a
sentence imposed by an originating court if the Director –
considers that there is an error in the sentence imposed and that
a different sentence should be imposed; and is satisfied that an
appeal should be brought in the public interest.
5.
The Director’s power to appeal may be delegated pursuant to
s.30 Public Prosecutions Act 1994.
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 1
How an Appeal is commenced –
6.
Director’s appeals are commenced by filing a Notice of Appeal
in accordance with the Rules of the Court (Rule 2.15) within 28
days after the day on which the sentence is imposed or any
extension of that period granted under s.313 – s.288(1). The
Notice of Appeal must be signed by the DPP personally –
s.288(2). A Notice of Appeal must be accompanied by a Written
Case in support of the appeal – Rule 2.15(1)(c) and section 15
of the Practice Direction (section 4 sub-sections (5) and (6) of
the Practice Direction) set out the requirements for the content
of a Written Case. A copy of the Notice of Appeal must be
served personally on the Respondent in accordance with s.391
within 7 days after the day on which the Notice of Appeal is
filed – s.288(3). The DPP shall serve the Written Case on the
Respondent at the time of service of the Notice – rule 2.15(2).
Within 7 days after serving on the Respondent the Notice of
Appeal and Written Case, the DPP shall file an affidavit of
service – rule 2.15(3). The DPP must provide a copy of the
Notice of Appeal to the legal practitioner who last represented
the Respondent in criminal proceedings to which the appeal
relates, if that legal practitioner can reasonably be identified –
s.288(4). As a matter of practice a copy of the Written Case
should also be provided. The Notice of Appeal may be amended
only with leave of the Court of Appeal – rule 2.15(5).
Determination of Crown Appeal –
7.
On an appeal under s.287, the Court of Appeal must allow the
appeal if the DPP s satisfies the Court that – s.289(1) –

there is an error in the sentence first imposed; and

a different sentence should be imposed.
8.
Importantly, s.289(2) provides that 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. This
has been the subject of confirmatory remark by the Court of
Appeal in DPP v Karazisis, Bogtstra, Kontoklotsis [2010]
VSCA 350 and DPP v Hardy [2011] VSCA 86.
9.
In any other case the appeal must be dismissed – s.289(3).
Orders etc. on successful Appeal –
10.
If the Court of Appeal allows an appeal under s.287, it must set
aside the sentence imposed by the originating court and impose
a sentence, whether more or less severe, that it considers
appropriate – s.290(1). If the Court of Appeal imposes a
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 2
sentence under s.290(1), it may make any other order that it
considers ought to be made – s.290(2). In imposing a sentence
under s.290(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 – s.290(3).
Right of appeal – failure to fulfill undertaking (background)
11
One of the amendments effected by the Sentencing
(Amendment) Act 1997,which came into operation on 18
November 1997, was to insert into s.5 of the Sentencing Act
1991 a new provision, s.5(2AB), the effect of which is that the
sentencing court may take into account as a relevant sentencing
factor an undertaking given by the convicted person in relation
to future or ongoing assistance to law enforcement authorities in
the investigation or prosecution of an offence.
12
In anticipation of some undertakings of this type not being
honoured, the Sentencing (Amendment) Act also amended
s.567A Crimes Act 1958 to add a new provision, being
s.567A(1A) Crimes Act 1958, which conferred on the Director a
right of appeal where an undertaking of the type referred to in
s.5(2AB) was taken into account by the sentencing court, but
where the Director considers that there was subsequently a
partial or complete failure to fulfill the undertaking. The right of
the Director to appeal against a failure to fulfill an undertaking
is now contained in s.291 of the CPA. However, s.567A(1A)
Crimes Act (1958) will continue to apply for some time into the
future as s.291 CPA only applies where the sentence was
handed down on or after 1 January 2010. There are no statutory
time-limits on the institution of an appeal under s.567A(1A) or
s.291 CPA.
Right of appeal – failure to fulfill undertaking –
13.
Without limiting any right of appeal under s.287, the DPP may
appeal to the Court of Appeal against a sentence imposed on a
person by an originating court if – s.291
a) the sentence was less severe because of an undertaking
given by the person to assist, after sentencing, law
enforcement authorities in the investigation or prosecution
of an offence, whether or not proceedings for that offence
had commenced at the time of sentencing; and
b) the DPP considers that the person has failed, wholly or
partly, to fulfill the undertaking.
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 3
How an Appeal is commenced – failure to fulfill undertaking –
14.
An appeal under s.291 is commenced by filing a Notice of
Appeal in accordance with the rules of the Court (Rule 2.15) –
s.292(1). The Notice of Appeal must be signed by the DPP
personally – s.292(2). A Notice of Appeal must be accompanied
by a Written Case in support of the Appeal – Rule 2.15(1)(c)
and section 15 of the Practice Direction (section 4 sub-sections
(5) and (6) set out the requirements for the content of a Written
Case). A copy of the Notice of Appeal must be served
personally on the Respondent in accordance with s.391 within
14 days after the day on which the Notice of Appeal is filed –
s.292(3). The DPP shall serve the Written Case on the
Respondent at the time of service of the Notice – rule 2.15(2).
Within 7 days after serving on the Respondent the Notice of
Appeal and Written Case, the DPP shall file an affidavit of
service – rule 2.15(3). The DPP must provide a copy of the
Notice of Appeal to the legal practitioner who last represented
the Respondent in criminal proceedings to which the appeal
relates, if that legal practitioner can reasonably be identified –
s.292(4). As a matter of practice a copy of the Written Case
should also be provided. The Notice of Appeal may be amended
only with leave of the Court of Appeal – rule 2.15(5).
15
In relation to appeals pursuant to s.567A(1A) Crimes Act (1958)
the pre-CPA procedure continues to apply.
Determination
undertaking –
16.
of Crown
Appeal
–
failure to
fulfill
On an appeal under s.291, if the Court of Appeal considers that
the Respondent has failed, wholly or partly, to fulfill the
undertaking, the Court of Appeal may allow the appeal – s.293.
Powers of Court of Appeal on successful Appeal – failure to
fulfill undertaking
17.
Upon the appeal being allowed, the Court of Appeal may –
s.294(1) – set aside the original sentence imposed by the
originating court; and impose the sentence that it considers
appropriate, having regard to the failure of the respondent to
fulfill the undertaking.
18.
In imposing a sentence under s.294(1), the court 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 – s.294(2).
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 4
Identification of Potential Appeal Matters
20.
It is the Director’s policy that, as a matter of fairness and
consistency, consideration must be given in every case in which
a sentence is imposed in the County or Supreme Courts as to
whether the sentence imposed should be the subject of a
Director’s appeal, according to the relevant criteria as explained
below. For these purposes, it should be remembered that the
term ‘sentence’ includes any order made under Parts 3, 4 or 5 of
the Sentencing Act 1991.
21.
Regardless of any view held by the instructing solicitor or
Prosecutor as to the appellability of a sentence, a Case
Completion Report (CCR) must, within seven days of sentence,
be submitted in relation to all sentences imposed in prosecutions
conducted by the OPP, whether summarily or in the County or
Supreme Court. The CCR will be auto-emailed to the Director's
Associate (currently Sarah Yates), Bruce Gardner, relevant
Directorate Managers and LPS. In the case of matters involving
a fatality the CCR will be forwarded to the Director. The report
should set out the basic facts, the details of counsel and the
court, a brief note of the major submissions made upon sentence
by both sides, including any concessions made by the
Prosecutor, the offender's prior criminal history, and the details
of the sentence. The report should also refer to any opinions
already expressed by the Prosecutor as to the potential
appellability of the sentence. Reference should also be made to
the expressed opinions of the informant or the victim or victim's
family as to the sentence. Such reports must be prepared and
submitted within 7 days of the imposition of sentence. The
requirement to file a Written Case at the time of filing the
Notice of Appeal makes compliance with this timeline of utmost
importance. Do not await the availability of the transcript of the
plea and/or sentence before sending the review. The matter will
be reviewed and the solicitor will be advised whether further
materials are required, such as the transcript, and whether the
matter will be appealed.
22.
The Manager of Bail and Breaches will review all sentences
imposed in respect of County and Supreme Court breaches. If
he or she considers that any such sentence may be invalid, he or
she will consult a Crown Prosecutor or the Director.
23.
Where a sentence has been imposed on the basis of an
undertaking in accordance with s.5(2AB) Sentencing Act 1991
and it subsequently comes to the notice of the relevant
prosecutor or instructing solicitor that there has been a partial or
complete breach of the undertaking, the matter should be
brought to the Director's attention in accordance with the
procedures described above, with any necessary adaption.
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 5
24.
If the appeal is to proceed, the Appeals Directorate will prepare
the necessary Notice of Appeal and related correspondence. It is
thus unnecessary to enclose any draft Notice of Appeal or
Written Case with the materials forwarded to the Director,
although proposed grounds of appeal may be recited in the
memoranda or advices.
Criteria for the Institution of a s.287 Appeal
25.
The decision whether to institute a Director’s appeal depends
upon a consideration of the relevant statutory criteria, in
combination with the principles discussed in the relevant case
law as to the circumstances in which a Crown appeal against
sentence may be justified.
26.
With respect to the statutory criteria, the Director will firstly
consider whether the sentence imposed discloses technical
sentencing error, in the sense of there having been a clear failure
to follow a prescribed procedure, a failure to invoke a
mandatory provision, or the making of an erroneous finding of
fact, although these types of error are comparatively rare. More
commonly, the Director will determine whether, despite the
absence of technical sentencing error, the sentence imposed is
nevertheless manifestly inadequate, that being an assessment
which depends upon the whole of the circumstances of the case
including the material led upon the plea, and an assessment of
the matter comparatively with other similar cases and relevant
sentencing practices.
27.
Where it appears that technical sentencing error has occurred,
and/or that the sentence imposed is manifestly inadequate, the
Director must further consider whether it is “in the public
interest” to institute an appeal. That is a matter of judgment in
each case on its own merits. Although the factors indicating
“public interest” are too numerous to specify, reference should
be made to the general principles arising in the exercise of the
prosecutorial discretion, and to the principle, as explained
below, that Crown appeals should not be brought unless there is
a reasonable prospect of success.
28.
Prior to the commencement of the CPA, Director’s appeals
against County and Supreme Court sentences were commenced
under s.567A(1) of the Crimes Act 1958. In such appeals, the
Director was required to consider the effect of the “double
jeopardy” principle, which is to the effect that a person, once
lawfully sentenced by a Court, should not too readily be
subjected to the risk of being re-sentenced to a higher sentence
by another Court for the same offence. A further aspect of the
double jeopardy principle is that, upon allowing any Crown
appeal against sentence, the Court of Appeal will generally
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 6
substitute a sentence somewhat less than the sentence which
should have originally been imposed. Double jeopardy was a
particularly significant factor if the sentence in issue is noncustodial, because appellate courts generally resist the
substitution of a custodial sentence for a non-custodial unless
doing so is clearly justified.
29.
The CPA abolished the principle of "double jeopardy' insofar as
it relates to the ability of the Court of Appeal to, firstly, allow an
appeal and secondly re-sentence after allowing appeals. The
abolition of the principle is clearly set out at ss.289(2) and
290(3) – in relation to DPP appeals against sentence - and
s.294(2) in relation to appeals against a failure to fulfill an
undertaking. See also the cases cited at para 5.1.2.5 above.
30.
The Director will take into account the sentence imposed upon
any co-offenders. It is the Director’s policy that, other than in
exceptional circumstances, an appeal which might otherwise be
viable will not be instituted if it would tend to produce an
unjustifiable disparity of sentence as between co-offenders (see
R. v. Nikodjevic [1998] 2 VR 33).
31.
The Director will generally decline to appeal sentences that are
consistent:
a) with concessions or submissions made by prosecuting
counsel upon the plea, or
b) with a sentence suggested by the judge or defence, that the
prosecutor did not seek to contradict by proper submissions.
For the submissions that prosecutors are expected to make on a
plea, see the Director’s policy with respect to the Crown’s role
upon plea and sentencing hearing (Policy 4.7.1).
32.
In addition to these general factors, the Director will also take
into account a series of Victorian Court of Appeal and High
Court cases in which the criteria for the bringing of Crown
appeals have been discussed.
33.
The effect of the High Court’s decision in Everett v. The Queen
(1994) 181 CLR 295 is that Crown appeals against sentence
should not generally be brought only on the basis of alleged
manifest inadequacy of sentence, but instead should be brought
only where there is a clear error of sentencing principle. The
High Court recognised, however, that in some circumstances,
the manifest inadequacy of a sentence can itself constitute an
appellable sentencing error.
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 7
34.
Crown appeals brought in Victoria since Everett have provided
to the Victorian Court of Appeal the opportunity to clarify the
scope of Crown appeals.
35.
In R. v. Clarke [1996] 2 V.R. 520, the Court of Appeal
confirmed that the following occasions may arise for the
bringing of a Crown appeal:

where a sentence reveals such manifest inadequacy or
inconsistency in sentencing standards as to constitute
error in principle.

where it is necessary for a Court of Appeal to lay down
principles for the governance and guidance of courts
having the duty of sentencing convicted persons.

to enable the Courts to maintain adequate standards of
punishment for crime.

to enable idiosyncratic views of individual judges as to
particular crimes or types of crimes to be corrected.

to correct a sentence which is so disproportionate to the
seriousness of the crime as to shock the public
conscience, and

to ensure, so far as the subject matter permits, that there
will be uniformity of sentencing.
36.
Similar sentiments were expressed by the Court in R. v
O’Rourke [1997] 1 V.R. 246.
37.
One of the main criteria applying to the prosecutorial discretion
is whether there is a reasonable prospect of conviction. A
similar concept applies with respect to the discretion to bring
Director’s appeals. As a general rule, it is the Director’s policy
that an appeal will not be instituted unless there is, in his view, a
reasonable prospect of the appeal succeeding. It is thus not
appropriate to bring an appeal, even where there is a clear
sentencing error or apparent manifest inadequacy of sentence, if
it is the Director’s view, based upon current sentencing practices
and pronouncements by the Court of Appeal, that any appeal
brought in the matter in question would face little prospect of
success. It would be contrary to the purpose and rationale of
Crown appeals against sentence to institute such appeals in
matters of borderline merit or in matters in which it was
recognised that there was little or no prospect of the appeal
succeeding. Accordingly, it is the Director’s policy that, other
than in exceptional cases, appeals against sentence will be
brought only where there is a reasonable prospect of the appeal
succeeding and where one or more of the factors identified in
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 8
Clarke (cited above) is clearly present. These principles,
however, will need to be applied subject to the abolition of
"double jeopardy" in relation to appeals brought pursuant to
s.287 or s.291 Criminal Procedure Act (2009).
Criteria for the Institution of s.291 Appeal
38.
As is clear from the drafting of s.291 the only criteria which
need to be satisfied for the institution of such an appeal are that
an undertaking of assistance was given, that a sentence was
passed on the basis of such undertaking in accordance with
s.5(2AB) Sentencing Act 1991, and that it is the Director’s view
that there has been a partial or complete failure to fulfill that
undertaking.
39.
It is to be noted that neither of the principal criteria in s.287
have any direct application to an appeal brought under s.291.
Such an appeal may be brought despite the sentence imposed
having been appropriate at the time of its imposition, and it is
implicit that it would be “in the public interest” to bring an
appeal where there has been a clear breach of an undertaking,
given at the time of sentence, to assist law enforcement
authorities.
40.
Consequently, it is the Director’s policy that the criteria for
deciding whether to institute a s.291 appeal are, firstly, whether
an undertaking of the relevant type was given by the convicted
person and acted upon by the sentencing court (as should be
recorded in the relevant court extract) and, secondly, whether
there has been a partial or complete failure to fulfil that
undertaking. Subject to the satisfaction of these criteria and the
absence of exceptional circumstances, an appeal under s.291
will generally be brought. These criteria is also applicable to
appeals brought pursuant to s.567A(1A) Crimes Act (1958).
Preparation and Conduct of the Appeal
41.
Once the Director has indicated that an appeal will be instituted,
an Appeals Directorate solicitor will draft an appropriate Notice
of Appeal for the Director’s signature (1 copy will be signed).
The solicitor with conduct of the appeal will also brief a Crown
Prosecutor to draft the Written Case. A signed copy of the
Notice of Appeal and Written Case is filed with the Court of
Appeal Registry within 28 days of the sentence. The Court of
Appeal Registry now allows for electronic filing without the
need to file hard copies at the Registry. Thus, the Notice of
Appeal and Written Case are ‘electronically’ filed with the
Registry
–
via
the
Registry
inbox
at
[email protected] with a copy to Lisa
Howells – Senior Legal Officer (the documents must be filed
prior to 11.59 p.m on the due date of filing).
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 9
42.
Once the Registry confirms that the Written Case complies with
the Practice Direction a ‘stamped copy’ (stamped with date filed
and Court of Appeal Reference Number) is emailed back to the
solicitor. Due to the strict time limits for service of the Notice of
Appeal and Written Case on the Respondent the Registry will
usually confirm compliance within one working day.
Appeals pursuant to s.287
43.
Once the Notice of Appeal and Written Case are filed with the
Registry, the solicitor must arrange for the informant to effect
personal service of a copy of the Notice of Appeal and
Written Case upon the respondent in accordance with s.391
within 7 days after the day on which the Notice of Appeal is
filed (s.288(3)). The Notice of Appeal and Written Case may be
emailed to the Informant to effect personal service on the
respondent. Following service upon the respondent, the serving
officer must swear an affidavit of service and return to the
appeals solicitor.
Appeals pursuant to s.291
44.
Once the Notice of Appeal and Written Case are filed with the
Registry, the solicitor must arrange for the informant to effect
personal service of a copy of the Notice of Appeal and
Written Case upon the respondent in accordance with s.391
within 14 days after the day on which the Notice of Appeal is
filed (s.292(3)). The Notice of Appeal and Written Case may be
emailed to the Informant to effect personal service on the
respondent. Following service upon the respondent, the serving
officer must swear an affidavit of service and return to the
appeals solicitor.
45.
A copy of the Notice of Appeal must also be provided to the
legal practitioner who last represented the respondent in the
criminal proceeding to which the appeal relates, if that
practitioner can be identified (ss.288(4) and 292(4)). A copy of
the Written Case should also be provided – despite the fact that
neither the legislation, rules or Practice Direction require
provision of Written Case to the last known representative.
46.
In all cases, within 7 days after serving the Notice of Appeal
and Written Case the solicitor must file an affidavit of service –
Rule 2.15(3).
47.
Within one month after service of the documents (Notice of
Appeal and Written Case) the respondent may file and serve a
Written Case which must comply with any applicable Practice
Direction – Rule 2.15(4).
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 10
48.
NB - the pre-CPA procedure continues to apply for appeals
brought pursuant to s.567A(1A) Crimes Act (1958).
49.
Once the decision to appeal is made, the informant should
immediately be contacted and put on alert to be ready to attend
to serving the Notice of Appeal and Written Case on the
Respondent. This is particularly important if the Respondent is
not in custody or is in custody in a Country Gaol.
50.
When arrangements are made for service, the informant should
be given a copy of the standard letter explaining the procedure
for service – for appeals under the CPA must be used whereas
applies to appeals pursuant to s.567A(1A) Crimes Act (1958).
After service, the informant must swear an Affidavit of Service;
this is usually drafted and sworn in the OPP office but may be
done remotely and mailed to the OPP. The Affidavit will
include as an exhibit a copy of the signed Notice of Appeal and
Written Case, so a photostat copy should be made of the
stamped Notice of Appeal and Written Case for this purpose. In
relation to appeals under the CPA, after the Affidavit is sworn,
the Affidavit of Service (including the exhibited copy Notice
and Written Case) and a copy of the Notice and Written Case
must be filed with the Registry within 7 days - Rule 2.15(3).
51.
In relation to s.567A(1A) Crimes Act (1958) the previous
procedure continues to apply.
52.
If it appears that it may not be possible to serve a copy of the
Notice of Appeal and accompanying Written Case before the
expiry of the 7 day time-limit in cases involving a s.287 appeal,
or the 14 day limit in cases involving a s.291 appeal, it may be
necessary to seek an extension of time under s.313. Although
technically this need not be done before the expiry of relevant
time limit, (the section provides that the extension may be made
"at any time") the application should be made as early as
possible. See generally the Brucebase Entry "Appeal (New
Provisions) /To Court of Appeal/Extension of Time".
53.
It is the Director’s policy that the informant, victims, victims’
relatives and other interested parties should be advised of the
decision to appeal, as soon as possible after the Notice of
Appeal and Written Case is filed with the Registry and served
upon the respondent.
54.
The Appeals Directorate will liaise with the relevant trial
solicitor with respect to the preparation and listing of, and
instructing in, the appeal itself. In some cases, the preparation
solicitor may wish to prepare or instruct in the appeal.
55.
It is the Director’s policy that interested parties, and in
particular complainants, be advised of the hearing date for the
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 11
appeal as soon as it is known (so that they may attend if they
wish) and be notified of the date of the handing-down of
judgment (so that they may attend if they wish) and the result of
the appeal as soon as practicable after judgment is given.
Depending on the history of the matter, it may also be desirable
to involve VSS.
56.
Section 15 of the Appeal Costs Act 1998 provides follow up
indemnities to be granted to Respondents upon the conclusion
of Director’s Appeals pursuant to s.287. Accordingly, in
addition to other procedures to be undertaken upon the hearing
of a Director's appeal, a Costs Register Report should be
completed and forwarded in accordance with Policy 5.4.12, in
all such cases.
57.
This Policy will be kept under review and may be re-issued in
amended form at a later date. All queries in relation to its
interpretation should be referred to the Appeals Directorate.
DIRECTOR’S POLICY APPEALS BY THE DPP TO THE COURT OF APPEAL 12