Guideline 7.4 – leave to appeal against sentence in the Court of Appeal

Guideline 7.4 – leave to appeal against sentence in the Court of Appeal

Victoria Legal Aid (VLA) may make a grant of legal assistance for leave to appeal against sentence where:

  • the applicant was sentenced to a term of immediate imprisonment or detention (unless the applicant is a child)
  • there are reasonable grounds for the appeal

  • there is a reasonable prospect that the court would reduce the total effective sentence, youth detention order, non-parole period or period prior to recognisance release order (unless the applicant is a child)

Assistance will only be approved for counsel to appear at an oral hearing of the leave to appeal application in exceptional circumstances.

'Child' means a child as defined in section 3(a) of the Children, Youth and Families Act 2005 (Vic).

Manifest Excess

Where the applicant relies upon the ground of manifest excess as their sole ground of appeal, VLA may make a grant of legal assistance for leave to appeal where both:

  • the above requirements are met
  • VLA is satisfied that the sentence was wholly outside the range available to the sentencing judge. 

Where the court elects to bypass the leave stage, practitioners must submit an application for an extension of legal assistance for the substantive appeal in ATLAS and attach the following:

  1. the written case
  2. the respondent’s (prosecution’s) submissions
  3. any additional material (including written advice) to demonstrate how the applicant satisfies Guidelines 7.5 or 7.7.

If leave to appeal is not granted by a single judge, please refer to Guideline 7.8 – elections to renew leave to appeal against conviction and/or sentence in the Court of Appeal.

Documentary requirements

Applications under this guideline are only made by the standard grants assessment process.

A member of the section 29A practitioner panel seeking a grant of legal assistance should submit an application via ATLAS for assessment, including the listed documents:

  • relevant proof of means, and
  • if they are available:
    • the advice of trial or appellate counsel
    • the relevant court transcripts and judgments.
  • where manifest excess is the sole ground relied upon:
    • material demonstrating how the trial or plea judge gave insufficient weight to particular factors in mitigation;
    • such that the sentence fell wholly outside the sentencing range available in that particular case;
    • Sentencing Advisory Council statistics; and
    • any comparable cases.