Australia: Severity appeals in NSW: Appeals from the Local to the District Court

29-year old Victorian man Anthony Khallouf was arrested in Sydney just days before the planned protest in the CBD on Saturday, 24 August 2021, after travelling down from Queensland.

Days before the planned gathering, Mr Khallouf uploaded a social media video jokingly conceding the potential “super spreader” event was cancelled, before declaring “nah f–k that shit, I'll see you guys this Saturday”.

In another video posted to Instagram, Mr Khallouf said his life was “under imminent threat” and urged followers to call the police.

Police alleged that Mr Khallouf had been one of the organisers of the Sydney Protest, which attracted thousands of people and resulted in confrontations between police and those in attendance.

According to media reports, 47 people were arrested and a further 261 handed infringement notices during the event.

On Friday, 23 August 2021, Mr Kallouf pleaded guilty in Hornsby Local Court to four counts of not complying with a public health order and one count each of encouraging the commission of a crime and making false representations resulting in a police investigation.

The Presiding Magistrate, Robyn Denes, sentenced him to a full term of eight months in prison with a minimum term of three months.

Yesterday, Mr Khallouf came before Downing Centre District Court to appeal against the severity of the sentence imposed on him.

During the appeal hearing, Mr Khallouf's lawyer, Oussama Elfawal from the law firm Crimcorp Defence Lawyers told the court that the offences did not cross the threshold required for a full time custodial sentence to be imposed.

But District Court Judge Helen Syme was not convinced, nor persuaded to impose a more lenient penalty.

The judge described one of the videos posted by Mt Khallouf as “alarming”, expressing the view that COVID-19 presents a real risk to vulnerable members of the community.

“Encouraging 100,000 people to come out in those circumstances is not only stupid and irrational, I might say, but of danger to the community and a serious offence in itself,” the judge remarked.

Judge Syme came to the view that a full time custodial sentence was indeed warranted, and agreed with the term imposed in the Local Court.

She dismissed the appeal, and Mr Khallouf will have to serve at least three months behind bars.

A person who is dissatisfied with the penalty imposed by a New South Wales Local Court has a right to appeal to the District Court.

This is known as a District Court severity appeal.

These hearings are ‘de novo' – or new hearings – and the appellant does not have to demonstrate that the Local Court made an error of law, that a miscarriage of justice occurred or that there was any other form of legal, factual or procedural mistake; the District Court will hear the case and make its own findings afresh.

The period for filing the appeal is 28 days from the date of the Local Court sentencing hearing

However, this can be extended to up to three months from the date of the Local Court sentencing hearing if the ‘leave' (permission) of the District Court is obtained.

The application for ‘leave' is normally heard on the same day and immediately preceding the scheduled appeal itself.

An application for leave will be granted if the extension of time is ‘in the interests of justice'.

At the appeal hearing, the prosecution (normally a solicitor from the DPP) will hand an ‘appeal bundle' up to the judge – which will include the appellant's criminal record, court attendance notice, the ‘facts' of the case, any materials handed up in the Local Court (such as character references, letter of apology, any medical materials etc).

The defence can also hand up any additional documents for the judge to consider.

In more serious cases, the defence may call the client or any other defence witnesses to ‘give evidence' – which means put them on the witness stand and ask any questions.

If this occurs, the prosecution will also have the opportunity to ask any questions.

Once all of this occurs, both the defence and the prosecution will have the opportunity to make ‘submissions' – which means talk to the judge about the case with a view to persuading him or her to reach a certain outcome.

A defence lawyer may submit written submissions and/or follow these up with oral submissions, or make oral submissions only. This will often depend on the nature and complexity of the case, as well as the outcome sought.

After all of this occurs, the judge will decide whether to uphold the appeal and impose a lesser sentence (which may include a ‘non conviction order) or refuse the appeal and confirm the penalty imposed in the Local Court.

It is important to be aware that the District Court judge is only permitted to impose a penalty that is harsher than that which was imposed in the Local Court if he or she first gives the defence what is known as a ‘Parker warning'.

There is no prescribed way of giving such a warning, but it will normally takes the form of something like,

• ‘I am considering a harsher penalty. Are you sure you wish to proceed with the appeal?', or
• ‘I am of the view the Local Court penalty was too lenient. Are you sure you want to proceed?'.

If a Parker warning is given, it is normally prudent to withdraw the appeal at that stage; however, there are exceptions to this rule.

One of these exceptions is if the judge indicates that he or she wishes to increase the prison term imposed in the Local Court (eg from 8 months to 12 months) but deal with it by way of an alternative to a full time custodial sentence (eg impose an Intensive Correction Order rather than a full time prison sentence).

In practice, the existence of Parker warnings means that an experienced lawyer will be able to ensure that his or her client will never receive a harsher sentence than that which was imposed in the Local Court.

If you are unhappy with the penalty imposed by a New South Wales Local Court, it is critical to engage specialist appeal lawyers to thoroughly prepare and persuasively present your appeal in the District Court.

At Sydney Criminal Lawyers, severity appeals are an area of our specialisation.

Our experienced criminal defence team frequently succeeds in having Local Court penalties significantly reduced on appeal – including achieving ‘non conviction orders' such as:

• Section 10 dismissals (guilty but no criminal record, no fine and no good behaviour bond),
• Conditional release orders without conviction (guilty but no criminal record and no fine), and
• Where mental health is an issue, a section 14 mental health discharge (case dismissed without a finding of guilt due to mental health. This was previously known as a ‘section 32 application').

In serious cases where the Local Court has imposed a prison term, we are frequently able to persuade District Court judges to quash the sentence and impose a non-custodial penalty instead.

So, if you are considering a severity appeal, call us today on (02) 9261 8881 and let our experienced defence team fight to achieve the most lenient outcome in your case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.