When an accused was not present in Local Court when a sentence is pronounced, the accused may be entitled to apply for an annulment. If the application is granted, the sentence is vacated and the accused is entitled to a new sentencing hearing. At that point, the accused can explain why a more lenient sentence is justified.
An annulment is not available if the accused agreed to be sentenced without being present. That might happen if the accused submitted a written Notice of Pleading.
An annulment will only be granted if the accused satisfies the court that he or she had a reasonable excuse for failing to attend the sentencing. If the accused received no notice of the sentencing date, or was detained in hospital or otherwise incapacitated, the Magistrate will have grounds for granting the application. Simply forgetting the date or complaining about being “too busy” to attend will probably not be seen as grounds for reopening the case.
An accused who does not have a reasonable excuse for failing to attend can ask for an annulment in the interest of justice. The Magistrate has discretion to decide whether it would be just to reopen the proceeding. Having the assistance of a lawyer makes it more likely that the application will be granted and that the Magistrate will exercise leniency.
An accused who agreed to be sentenced without being present in court, as well as an accused who was present but is dissatisfied with the sentence, can appeal the Magistrate’s sentencing decision. The appeal is to the District Court and must be filed within 28 days after sentence is pronounced.
An appeal can be based on the ground that the sentence is too severe, given the circumstances of the offender and the crime. When an appeal is taken, a District Court Judge can take a fresh look at the case. The judge might decrease or increase the sentence.
Before a judge considers imposing a harsher sentence, the judge must give the accused a “Parker warning.” The accused then has the option of withdrawing the appeal. It may be better to live with the sentence imposed by the Magistrate than to risk a longer sentence after appeal.
Before proceeding with an appeal, it is best to seek legal advice. A lawyer can help the accused understand whether grounds exist to seek a less severe sentence and whether an appeal is likely to be successful.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.