Sentencing Bench Book — Appeals

This chapter first discusses sentence appeals for matters dealt with on indictment and then appeals from the Local Court. A creature of statute, the precise nature of a sentence appeal depends on the language and context of the statutory provision(s): Dinsdale v The Queen (2000) 202 CLR 321 at [57]; Lacey v Attorney-General of Queensland (2011) 242 CLR 573 at [8].

Section 5(1)(c) Criminal Appeal Act 1912 provides that a person convicted on indictment may appeal against sentence to the Court of Criminal Appeal with leave.

Severity appeals under s 5(1)(c) Criminal Appeal Act 1912 are not rehearings. It is not enough that the appeal court considers that had it been in the position of the judge, it would have taken a different course: Lowndes v The Queen (1999) 195 CLR 665 at [15]. Nor is an appeal the occasion for revising and reformulating the case presented below: Zreika v R [2012] NSWCCA 44 per Johnson J at [81]. The applicant must establish the sentencing judge made an error in the exercise of their discretion: House v The King (1936) 55 CLR 499 at 505. In Markarian v The Queen (2005) 228 CLR 357 at [25], Gleeson CJ, Gummow and Callinan JJ said:

See also the explanation of specific error in Kentwell v The Queen (2014) 252 CLR 601 at [42].

Manifest inadequacy of sentence, like manifest excess, is a conclusion and intervention on either ground is not warranted simply because the result arrived at below is markedly different to other sentences imposed for other cases: Hili v The Queen (2010) 242 CLR 520 at [59], referring to Dinsdale v The Queen (2000) 202 CLR 321 at [6] and Wong v The Queen (2001) 207 CLR 584 at [58]. Intervention is only justified where the difference is such that the court concludes there must have been some misapplication of principle, even though where and how cannot be discerned from the reasons: Hili v The Queen at [59].

A court may impose an aggregate sentence when sentencing an offender for multiple offences: Crimes (Sentencing Procedure) Act 1999, s 53A(1). See [7-505] Aggregate sentences.

In JM v R [2014] NSWCCA 297, the seminal case on aggregate sentencing, R A Hulme J (Hoeben CJ at CL and Adamson J agreeing) at [3] set out nine propositions established by the cases considering s 53A: see [7-507] Settled propositions concerning s 53A. His Honour set out “further propositions” in relation to appellate review of aggregate sentencing (numbering continues from [39] (see [7-507]), case references omitted):

The principle or ultimate focus of the appeal is against the aggregate sentence, not the individual indicative sentences: Lee v R [2020] NSWCCA 244 at [32], R v Kennedy [2019] NSWCCA 242 at [78]; DS v R [2017] NSWCCA 37 at [63]–[64]; JM v R at [40] (proposition 11). However, in determining whether an aggregate sentence is manifestly excessive, regard may be had to the indicative sentences and to “potentials for accumulation” although without beginning and end dates for each indicative sentence, it may be more difficult to demonstrate a relevant error: Lee v R at [32], JM v R at [40] (propositions 11 and 13); Gibson v R [2019] NSWCCA 221 at [88]. Propositions 11, 12 and 13 were also affirmed in Kerr v R [2016] NSWCCA 218 at [114] and in Kresovic v R [2018] NSWCCA 37 at [42].

Section 6(3) Criminal Appeal Act 1912 provides:

It is only open to the CCA to quash the sentences if it is of the opinion stipulated in s 6(3) as one “that some other sentence ... is warranted in law and should have been passed”: Elliott v The Queen (2007) 234 CLR 38 at [34].

The phrase “is warranted in law” assumes no change in the relevant law between the imposition of the sentence and the determination of the appeal against it: Elliott v The Queen at [36]. For proceedings commenced on or after 18 October 2022, s 21B(4) of the Crimes (Sentencing Procedure) Act 1999 provides that, when varying or substituting a sentence, a court must do so in accordance with the sentencing patterns and practices at the time of the original sentencing.

Once a specific error of the kind identified in House v The King (1936) 55 CLR 499 has been established, it is the duty of the CCA to exercise the discretion afresh taking into account the purposes of sentencing and any other Act or rule of law: Kentwell v The Queen (2014) 252 CLR 601 at [42] citing Spigelman CJ in Baxter v R [2007] NSWCCA 237 at [19] with approval. The task does not involve assessing the impact of the error on the sentence or merely adjusting the sentence to allow for the error identified: Baxter v R. It is not necessary to determine whether the error had an actual effect on the sentence, only that it had the capacity to do so: Newman (a pseudonym) v R [2019] NSWCCA 157 at [11]–[13]; Tomlinson v R [2022] NSWCCA 16 at [200]. In this context use of the term “material” to distinguish between errors impacting on the sentencing discretion and those that do not should be avoided: Newman (a pseudonym) v R at [11]; Ibrahim v R [2022] NSWCCA 134 at [24].

The court must exercise its independent discretion and determine whether the sentence is appropriate for the offender and the offence: Kentwell v The Queen at [42]; Thammavongsa v R [2015] NSWCCA 107 at [4], [44]. Any comparison of the proposed re-sentence with the original sentence is only made at the end of the process required under s 6(3) to check that the sentence arrived at by the appellate court does not exceed the original sentence: Thammavongsa v R at [5]–[6].

Not all errors vitiate the exercise of the sentencing discretion, for example, setting the term of the sentence first where the law requires the non-parole period to be set first: Kentwell v The Queen at [42].

In Lehn v R (2016) 93 NSWLR 205, the court convened a five-judge bench to consider whether, if there is an error affecting only a discrete component of the sentencing exercise, the court is required under s 6(3) to re-exercise the sentencing discretion generally, or, only in respect of the discrete component affected by the error. The court held that if the sentencing judge’s discretion miscarries for a discrete component of the sentencing process it is necessary for the CCA to re-exercise the sentencing discretion afresh under s 6(3): per Bathurst CJ at [60] with other members of the court agreeing at [118], [125], [128], [141]. Section 6(3) requires the court to form an opinion as to whether some other sentence is warranted in law. As a matter of language, s 6(3) does not provide that, if a discrete error is found, the sentence can be adjusted to take account of that error: Lehn v R at [68]. The High Court in Kentwell v The Queen at [42] held that the CCA’s task on finding error causing a miscarriage of the discretion was not to assess whether, and to what degree, the error influenced the outcome, but to re-exercise the sentencing discretion afresh and form its own view of the appropriate sentence but not necessarily re-sentence: Lehn v R at [77] quoting Kentwell v The Queen. Those remarks are equally appropriate where the discretion miscarried in respect of a discrete component of the sentencing process: Lehn v R at [78].

The Court of Criminal Appeal has flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice: Betts v The Queen (2016) 258 CLR 420 at [2], [10]. More than one approach has been adopted (as explained below). Barnes v R [2022] NSWCCA 140 contains a summary of the relevant principles at [24]–[34].

The conventional approach is for the court to ask whether the additional evidence is “fresh”, that is, evidence which the applicant was unaware of and could not have obtained with reasonable diligence: R v Goodwin (unrep, 3/12/90, NSWCCA); R v Abou-Chabake [2004] NSWCCA 356 at [63]. Fresh evidence is to be contrasted with new evidence which is not received. It is evidence that was available at the time, but not used and could have been obtained with reasonable diligence: Khoury v R [2011] NSWCCA 118 at [107]; R v Many (unrep, 11/12/90, NSWCCA); Barnes v R at [28]. Even if evidence is fresh, it will not be received by the court unless it affects the outcome of the case: R v Fordham (unrep, 2/12/97, NSWCCA) at 378. For example, the evidence in Bajouri v R [2016] NSWCCA 20 of images on Facebook showing the victim doing activities such as jet skiing 10 months after the assault offence and 18 months before his victim impact statement could not qualify as fresh evidence. It did not contradict or cast doubt on the contents of the victim impact statement: at [44], [46], [51]. “New” evidence is evidence that was available but not used, or was discoverable with the exercise of reasonable diligence at the time of sentence: Khoury v R at [107]; Barnes v R at [28].

The general rule as set out in R v Birks (1990) 19 NSWLR 677 at 683 and 685 that “a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted” applies to sentencing proceedings: Khoury v R [2011] NSWCCA 118 at [104]; Tran v R [2014] NSWCCA 32 at [12]; CL v R [2014] NSWCCA 196. However, fresh evidence has been admitted by the Court of Criminal Appeal without error being established where a miscarriage of justice occurred because the applicant was incompetently or carelessly represented at sentence: R v Fordham at 377–378, citing R v Abbott (unrep, 12/12/85, NSWCCA); Munro v R [2006] NSWCCA 350 at [23]–[24].

Where evidence was available to the defence at the time of sentencing, a miscarriage of justice will rarely result simply from the fact that the evidence was not put before the sentencing judge, even if the evidence may have had an impact upon the sentence passed: R v Fordham at 377.

Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked better: Ratten v The Queen (1974) 131 CLR 510 at 517; R v Diab [2005] NSWCCA 64 at [19].

In Khoury v R, counsel said it did not occur to him to call psychiatric evidence concerning the applicant’s low intellectual functioning. Evidence was received on appeal because of its significance in the case: see the explanation of Khoury v R in Grant v R [2014] NSWCCA 67 at [57]. Conversely, in Grant v R, the court refused to admit two psychological reports prepared many years after sentence proceedings: Grant v R at [58].

A miscarriage of justice was found in Grant v R where the applicant pleaded guilty to manslaughter on the basis of excessive self-defence because the legal representative: failed to explain to the client the various states of mind within the offence of manslaughter; failed to obtain clear instructions from the client on that issue; and, informed the court what he thought was his client’s intention without having obtained clear instructions on the issue: at [71], [77].

Section 5D(1) Criminal Appeal Act 1912 provides:

Although the Attorney General (NSW) has a statutory right to appeal against sentence, it has only been exercised once since the establishment of the office of an independent Director of Public Prosecutions (DPP) by the Director of Public Prosecutions Act 1986 (NSW). See CMB v Attorney General for NSW (2015) 256 CLR 346. The decision to institute a Crown appeal is made by the DPP, although the Executive government sometimes requests that the DPP consider an appeal on behalf of the Crown to correct a sentence perceived to be inadequate.

The NSW Prosecution Guideline Chapter 10: DPP appeals, at [10.2], states in part that the DPP will only lodge an appeal if satisfied that:

The Guideline states, at [10.4] Appeals against sentence, that the primary purpose of DPP sentence appeals to the Court of Criminal Appeal is to allow the court to provide governance and guidance to sentencing courts. The Guideline recognises that such appeals are, and ought to be, rare. The Guideline states they should be brought in appropriate cases:

The Prosecution policy of the Commonwealth: guidelines for the making of decisions in the prosecution process (issued by the CDPP in July 2021) sets out the Director’s policy in relation to Commonwealth prosecution appeals against sentence. It can be accessed from “Prosecution Process” on the CDPP website.

Guideline 6.35 of the Commonwealth prosecution policy states that the prosecution right to appeal against sentence “should be exercised with appropriate restraint” and “consideration is to be given as to whether there is a reasonable prospect that the appeal will be successful”. Guideline 6.36 further states that an appeal against sentence should be instituted promptly, even where no time limit is imposed by the relevant legislation.

The primary purpose of a Crown appeal is to lay down principles for the governance and guidance of courts with the duty of sentencing convicted persons: Green v The Queen (2011) 244 CLR 462 per French CJ, Crennan and Kiefel JJ at [1], [36], quoting Barwick CJ in Griffith v The Queen (1977) 137 CLR 293 at 310. See also R v DH [2014] NSWCCA 326 at [19]; R v Tuala [2015] NSWCCA 8 at [98]. Their Honours in Green v The Queen continued at [36]:

The High Court affirmed the above passage in CMB v Attorney General for NSW (2015) 256 CLR 346 at [55].

The purpose of Crown appeals extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing: Lacey v Attorney General of Queensland (2011) 242 CLR 573 at [16]; Everett v The Queen (1994) 181 CLR 295 at 300; Dinsdale v The Queen (2000) 202 CLR 321 at [61]–[62].

Once error is identified in a Crown appeal, the court is not obliged to embark on the resentencing exercise: R v JW (2010) 77 NSWLR 7 at [146]. The court has a discretion to refuse or decline to intervene even if error is established: R v JW at [146]; Green v The Queen (2011) 244 CLR 462 at [1], [26]; R v Reeves [2014] NSWCCA 154 at [12].

It is an error for the court to fail to consider the exercise of its residual discretion to dismiss the Crown appeal despite finding error: Bugmy v The Queen (2013) 249 CLR 571 at [24]; Reeves v The Queen (2013) 88 ALJR 215 at [60]–[61].

Two questions are relevant to the exercise of the residual discretion: first, whether the court should decline to allow the appeal even though the sentence is erroneously lenient; and second, if the appeal is allowed, to what extent the sentence should be varied: R v Reeves at [13]; Green v The Queen at [35]. The purpose of Crown appeals is not simply to increase an erroneous sentence. The purpose is a “limiting purpose” to establish sentencing principles and achieve consistency in sentencing: R v Reeves at [14]–[15]; Griffiths v The Queen (1977) 137 CLR 293 at [53]; R v Borkowski [2009] NSWCCA 102 at [70]. Where the guidance provided to sentencing judges is limited, for example, because the proceedings are subject to non-publication orders, it may be appropriate to dismiss the appeal in the exercise of the residual discretion: HT v The Queen (2019) 93 ALJR 1307 at [51]; [55]; [90].

In determining whether to exercise the residual discretion, it is open for the appellate court to look at the facts available as at the time of the hearing of the appeal, including events that have occurred after the original sentencing: R v Reeves at [19]; R v Deng [2007] NSWCCA 216 at [28]; R v Allpass (unrep, 5/5/93, NSWCCA).

The onus is on the Crown to negate any reason why the residual discretion should be exercised: R v Hernando [2002] NSWCCA 489 at [12], cited with approval in CMB v Attorney General for NSW (2015) 256 CLR 346 at [34], [66].

Section 68A(1) expressly removes double jeopardy as a discretionary consideration for refusing to intervene: R v JW at [95] but it “leaves other aspects untouched” and “there remains a residual discretion to reject a Crown appeal” for reasons other than double jeopardy: R v JW per Spigelman CJ at [92], [95] (other members of the court agreeing at [141], [205], [209]).

The residual discretion, where it is exercised, necessitates an immediate and highly subjective assessment of the circumstances of the case at hand: R v Holder and Johnston [1983] 3 NSWLR 245 at 256.

If a Crown appeal against sentence is successful and the appellate court resentences the respondent, it does so in the light of all the facts and circumstances as at the time of resentencing: R v Warfield (1994) 34 NSWLR 200 at 209, following R v Allpass (unrep, 5/5/93, NSWCCA). The court will admit evidence of matters occurring after the date of the original sentencing to be taken into account on this basis: R v Deng [2007] NSWCCA 216 at [28]. For proceedings commenced on or after 18 October 2022, s 21B(4) of the Crimes (Sentencing Procedure) Act1999 provides that, when varying or substituting a sentence, a court must do so in accordance with the sentencing patterns and practices at the time of the original sentencing.

Section 68A(1)(b) prohibits an appeal court from imposing a less severe sentence “than the court would otherwise consider appropriate because of any element of double jeopardy involved in the respondent being sentenced again”. Section 68A prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of distress and anxiety suffered by the respondent: R v JW (2010) 77 NSWLR 7 at [98], [141], [205], [209]; affirmed in R v Parkinson [2010] NSWCCA 89 at [49]–[51].

For appeals by the Crown against a person who fails to fulfil an undertaking to assist authorities, see Power to reduce penalties for assistance to authorities at [12-240].

Section 11 Criminal Appeal Act 1912 provides that judges may furnish the registrar with their notes of the trial and a report, giving their opinion of the case or any point arising in the case.

A s 11 report should only be provided in exceptional circumstances: R v Sloane [2001] NSWCCA 421 at [13]. The report’s function is not to provide a reconsideration of sentence or to justify or explain why a judge dealt with a matter in a particular way: Vos v R [2006] NSWCCA 234 at [26]; R v Sloane at [9]. The relevant and permissible functions of a report are set out in R v Sloane at [10]–[12]; see also Zhang v R [2018] NSWCCA 82 at [37]–[39].

Any person who has been sentenced by the Local Court may appeal to the District Court against the sentence: s 11(1) Crimes (Appeal and Review) Act 2001. The appeal is by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings: s 17.

The nature of an appeal “by way of rehearing” was discussed in Fox v Percy (2003) 214 CLR 118 in the context of an appeal under the Supreme Court Act 1970. Referring to the “requirements, and limitations, of such an appeal” the plurality said at [23]:

Section 20(2) Crimes (Appeal and Review) Act empowers the District Court on a sentence appeal to set aside or vary the sentence or dismiss the appeal. “Sentence” is exhaustively defined in s 3. “Varying a sentence” is defined in s 3(3) to include: (a) a reference to varying the severity of the sentence, (b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature, and (c) a reference to varying or revoking a condition of, or imposing a new condition on, an intensive correction order, community correction order or conditional release order. The power conferred to vary a sentence includes the power to make an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 and, for that purpose, to set aside a conviction made by the original Local Court (without setting aside the finding of guilt on which the conviction is based) to enable the order to be made: s 3(3A).

The exercise of a power to set aside or vary a sentence under s 20 operates prospectively and extends to cases where the variation includes the imposition of a s 10 order and the setting aside the conviction: Roads and Maritime Services v Porret (2014) 86 NSWLR 467 at [33]. The exercise of the power to impose a s 10 order does not render the effect of the sentence up to the time of the appeal a nullity: Roads and Maritime Services v Porret at [33].

Where the judge is contemplating an increased sentence, the principles in Parker v DPP (1992) 28 NSWLR 282 require the judge to indicate this fact so the appellant can consider whether or not to apply for leave to withdraw the appeal: at 295. See further discussion in Procedural fairness at [1-060]. The court is prevented from ordering a new sentence, or varying an existing sentence, to one that could not have been made or imposed by the Local Court: s 71. Any sentence varied or imposed and any order made has the same effect and may be enforced in the same manner as if it were made by the Local Court: s 71(3).

A person who has been sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the sentence, but only on a ground that involves a question of law alone: s 52 Crimes (Appeal and Review) Act. However, such a person may appeal to the Supreme Court on a ground that involves a question of fact, or a question of mixed law and fact, if the court grants leave: s 53.

A person sentenced by the Local Court with respect to an environmental offence may appeal to the Supreme Court against the sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court: s 53(2).

A question of law alone does not include a mixed question of fact and law: R v PL [2009] NSWCCA 256 at [25]. A question concerning the application of correct legal principle to the facts of a particular case is a question of mixed fact and law; while a question concerning the application of incorrect legal principle to the facts of a particular case can give rise to a question of law alone: Brough v DPP [2014] NSWSC 1396 at [49]. In that case, an appeal founded upon a critique of the way in which a sentencing magistrate applied well-established principles of totality to the evidence was not a question of law alone: Brough v DPP at [50]–[51].

To identify an error by the Local Court in the exercise of its sentencing discretion in terms that amount to an error of the kind identified in House v King (1936) 55 CLR 499 at 504, does not of itself answer the question posed by s 56(1), that is, whether the court answered a question of law alone incorrectly, or otherwise made an assumption as to the existence of a legal principle which was wrong: Bimson, Roads and Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [46].

If it is apparent that the court had acted on a “wrong principle”, then the question of law would be whether that principle was wrong or correct and, if wrong, whether the trial judge acted on that principle and whether that materially affected the outcome: Bimson at [48].

A conclusion that the exercise of judicial discretion was unreasonable or plainly unjust may enable the appellate court to infer there was error but it does not necessarily enable the appellate court to infer that the error was one that involved the lower court applying or adopting a wrong legal principle. It will often be a distraction to attempt to label a sentence appealed from as manifestly inadequate or excessive. Instead, the appellant should isolate the question of law or legal principle that the lower court adopted or assumed and then demonstrate that it was wrong and material to the outcome: Bimson at [53]. Therefore an assertion that a sentence is manifestly inadequate does not identify a question of law alone as required by s 56(1)(a): Bimson at [57]. It is not the court’s function under s 56(1)(a) to embark on an inquiry into the adequacy or even manifest inadequacy of a Local Court sentence: Bimson at [93].

A ground of appeal alleging that the magistrate had incorrectly characterised the seriousness of the offences did not raise a question of law alone; however a ground alleging that the magistrate had applied an incorrect maximum penalty and jurisdictional limit did raise a question of law alone: Bimson at [66], [77].

In determining a severity appeal from the Local Court, the Supreme Court has the power to set aside or vary the sentence, dismiss the appeal, or to set aside the sentence and remit the matter to the Local Court for redetermination: s 55(2).

The Supreme Court does not have jurisdiction to hear an appeal against a sentence imposed in the Local Court if an application for leave to appeal in the District Court has been dismissed and the magistrate’s order has been confirmed: Devitt v Ross [2018] NSWSC 1675 at [60]–[62].

Section 23 Crimes (Appeal and Review) Act 2001 provides that the DPP may appeal to the District Court against a sentence imposed on a person by a Local Court in proceedings for:

An appeal pursuant to s 23 is of a different nature to a Crown appeal to the Court of Criminal Appeal under the Criminal Appeal Act. Section 26 Crimes (Appeal and Review) Act provides that a s 23 Crown appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings. The court may also grant the DPP leave to lead fresh evidence, but only in exceptional circumstances: s 26(2). For the appeal to be upheld, error must be found: DK v Director of Public Prosecutions [2021] NSWCA 134 at [32].

The District Court is empowered on an appeal to dismiss the appeal, set aside or vary the sentence: s 27(1); but is prevented from ordering a new sentence, or varying an existing sentence, to one that could not have been made or imposed by the Local Court: s 71.

The court has a residual discretion to decline to intervene, on a similar basis to the Court of Criminal Appeal: DK v Director of Public Prosecutions at [43]–[44] (see further [70-100]–[70-110] above). The discretion may not be exercised on the basis of double jeopardy.

The Crown may appeal to the Supreme Court against a sentence imposed by a Local Court in any summary proceedings, but only on a ground that involves a question of law alone: s 56(1)(a) Crimes (Appeal and Review) Act. Sentences imposed with respect to environmental offences may be appealed by the Crown but only with the leave of the court and on a question of law alone: s 57(1)(a).

See [70-125], above, for discussion of what constitutes a question of law alone. A Crown appeal alleging manifest inadequacy of sentence does not itself raise an error of law: Morse (Office of the State Revenue) v Chan [2010] NSWSC 1290 at [5], [39]; Bimson, Roads and Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [51]. The function of the Supreme Court on appeals under s 56(1) is to identify and correct legal error, not to ensure consistency in sentencing for similar offences by magistrates across New South Wales: Bimson at [54].

In determining a Crown appeal on a question of law alone, the Supreme Court has the power to set aside or vary the sentence, or to dismiss the appeal: s 59(1). The court is prevented from imposing or varying a sentence to one which could not have been imposed in the Local Court: s 71.

In addition, the court retains a discretion to decline to intervene where an error of law has been established. In Bimson, an appeal under s 56, the court declined to intervene although error was established on the basis that the error was caused solely by a statement made to the court by counsel for the prosecution: see [94].

Judicial review is another type of appeal available against a District Court judgment following an appeal from the Local Court. There is no right of appeal from the judgment of the District Court given in its criminal jurisdiction, on an appeal to it from the Local Court: Hollingsworth v Bushby [2015] NSWCA 251; Toth v DPP (NSW) [2014] NSWCA 133 at [6].

Section 69C Supreme Court Act 1970 applies to proceedings for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court or sentence imposed by the Local Court. The proceedings are instituted in the supervisory jurisdiction of the Court of Appeal with respect to a judgment of the District Court: Tay v DPP (NSW) [2014] NSWCA 53 at [1]. The execution of a sentence imposed as a consequence of a conviction, or of any other order, is stayed when proceedings seeking judicial review are commenced: at s 69C(2); Tay v DPP (NSW) at [5].

Part 59 Uniform Civil Procedure Rules 2005 (NSW), dealing with judicial review proceedings, requires that proceedings must be commenced within three months of the date of the decision sought to be reviewed: r 59.10(1); Toth v DPP (NSW) at [6]. Section 176 District Court Act 1973 relevantly provides: “No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court”. Section 176 prevents the Court of Appeal exercising its supervisory jurisdiction for error of law on the face of the record: Hollingsworth v Bushby at [5], [84], [92]; Toth v DPP (NSW) at [6]. The provision does not preclude relief under s 69 Supreme Court Act on the ground of jurisdictional error: Hollingsworth v Bushby at [5], [84], [92]; Garde v Dowd (2011) 80 NSWLR 620.