What is the difference between appealing a conviction and appealing a sentence?
The difference comes down to what you are actually disputing. An appeal against conviction says the finding of guilt itself was wrong, while an appeal against sentence accepts the guilty finding and argues only that the penalty is too harsh. The Magistrates’ Court of Victoria confirms that a person found guilty or sentenced has the right to appeal against the finding of guilt, the sentence, or both. Getting this distinction right matters, because the two appeals ask the court to do completely different things.
Appealing a conviction means challenging the finding of guilt
A conviction appeal is a challenge to the verdict. You are saying you should not have been found guilty at all, whether because the evidence did not support it, the law was applied wrongly, or something about the hearing produced an unfair result. If a conviction appeal succeeds, the finding of guilt can be set aside, which is a fundamentally different outcome from simply having a penalty reduced. This is the path for someone who maintains they are not guilty.
In the higher courts, conviction appeals tend to turn on tightly defined grounds, such as a verdict that no reasonable jury could have reached, a legal error in how the trial was run, or a miscarriage of justice in the way evidence was admitted or the jury was directed. These are demanding arguments, which is part of why conviction appeals are harder to win than sentence appeals. It is common, where guilt is disputed, to appeal the conviction and, in the alternative, the sentence, so that if the conviction stands the penalty is still in play.
Appealing a sentence means accepting guilt but challenging the penalty
A sentence appeal takes a narrower aim. You are not disputing that you committed the offence, you are arguing that the punishment does not fit it, as the Sentencing Advisory Council explains in setting out how sentence appeals work. This is the right path for someone who accepts the conviction but believes the magistrate or judge got the penalty wrong, for example by imposing a term of imprisonment where a community-based order was open, or by giving too little weight to their circumstances.
In the higher courts, a sentence appeal usually argues that the sentence was manifestly excessive, meaning so far outside the acceptable range that error must have crept in, or that a specific error was made, such as acting on a wrong fact or applying the wrong principle. It is a more focused argument than a conviction appeal, because the court is only looking at the penalty. That focus is also why sentence appeals are more commonly run, though a narrower target does not make them automatic wins.
Where does your appeal go, and does that change everything?
Yes, the court your matter started in decides where the appeal goes, and the two systems work very differently. This is one of the most practically important things to understand before you appeal, because it shapes what the appeal actually involves.
From the Magistrates’ Court: a fresh hearing in the County Court
If you were dealt with in the Magistrates’ Court, your appeal goes to the County Court, and it is a full rehearing. The Sentencing Advisory Council confirms these appeals are conducted as a complete rehearing of the matter, known as a de novo appeal. In plain terms, the County Court looks at the case afresh rather than just reviewing what the magistrate did. The Magistrates’ Court of Victoria requires the notice of appeal to be lodged within 28 days of the decision, and the matter then moves to the County Court for hearing.
Because it is a rehearing, the case is effectively run again. On a conviction appeal the evidence can be heard afresh, and on a sentence appeal the County Court forms its own view of the appropriate penalty rather than deferring to the magistrate. That is a real advantage in the right case, but it cuts both ways, because a fresh look can produce a fresh, and heavier, result. You can usually apply for bail while the appeal is pending, and an appeal can generally be abandoned before it is heard, both of which are worth understanding before you commit.
From the County or Supreme Court: leave to appeal to the Court of Appeal
If you were tried and sentenced in the County or Supreme Court, your appeal goes to the Court of Appeal, and the process is very different. The Supreme Court of Victoria explains that most conviction and sentence appeals require leave, meaning the court’s permission to proceed, and that you generally have 28 days from the sentence to start the appeal. This is not a rehearing. The Court of Appeal reviews whether something went wrong, such as a legal error, a miscarriage of justice, or, in limited cases, fresh and compelling evidence.
Can an appeal make things worse?
Yes, and this is the part people most often miss. An appeal is not a free shot at a better result. On a de novo appeal in the County Court, the court hears the case again and can impose any sentence open to it, which means the penalty can go up as well as down. In the higher courts, the Supreme Court of Victoria confirms that on a sentence appeal the Court of Appeal may reduce or increase the sentence. On top of that, the prosecution has its own right of appeal, and the Sentencing Advisory Council notes the Director of Public Prosecutions can appeal a higher-court sentence argued to be manifestly inadequate. Weighing that downside honestly is exactly why appeals need proper advice before they are lodged.
The warning and the option to abandon
The system does build in some protection against being ambushed by a worse result. On a County Court appeal, if the judge is considering increasing the sentence, the appellant is generally warned and given the chance to abandon the appeal before that happens. That safeguard is useful, but it is not a guarantee, and it does not remove the risk, it just gives you a decision point. The real protection is getting advice on your prospects first, so you are not relying on a mid-hearing warning to save you from an appeal that should never have been run.
How do you decide which appeal to run?
The choice follows from what you genuinely dispute, and being honest with yourself here is essential. Running the wrong appeal wastes your one clear opportunity and your limited time.
When a conviction appeal is the right path
Choose a conviction appeal when you maintain you are not guilty, or when the way the case was decided was genuinely unfair or legally flawed. This is the harder appeal to win, and it turns on the evidence and the law rather than on sympathy. If your real position is that you should never have been found guilty, a sentence appeal does not address that, because it assumes guilt from the start.
When a sentence appeal is the right path
Choose a sentence appeal when you accept the conviction but believe the penalty is out of step with the offending and your circumstances. This is where issues like your lack of prior history, your rehabilitation, or an error in how the sentence was calculated come into play. It is a more contained argument than a conviction appeal, but the risk that the penalty could increase still applies, so it is not a decision to make lightly.
For many people the honest answer is that only one path fits, and the danger is choosing on emotion rather than merit. Someone who is angry about the whole result may instinctively want to appeal everything, when the realistic prospect lies only in the sentence. Someone who quietly accepts what they did may still have a strong conviction argument they are talking themselves out of. This is precisely the judgment a criminal appeal lawyer is there to make, weighing the evidence, the grounds, and the odds before a single form is filed.
Why the 28-day clock is the thing that catches people out
The single most common way people lose the right to appeal is running out of time. The 28-day limit is strict, and it runs from the date of the decision, not from when you decide you are unhappy with it. If you miss it, you have to apply for an extension of time and explain the delay on affidavit, and the court does not have to grant it. The Criminal Procedure Act 2009 (Vic), the legislation that governs Victorian criminal appeals and is set out at legislation.vic.gov.au, builds these deadlines in deliberately.
The tight window matters for a second reason: it is also the time you have to prepare. Getting advice on day two leaves room to obtain the transcript, assess the grounds, and lodge properly. Getting advice on day twenty-six leaves almost none. The practical lesson is simple. If you are even considering an appeal, treat the clock as already running, and get advice within days of the outcome rather than weeks, because a strong appeal lodged late is worth far less than a considered one lodged on time.
So which appeal is right for your case?
If you dispute that you are guilty, you are looking at a conviction appeal. If you accept guilt but think the penalty is wrong, you are looking at a sentence appeal. In many matters the honest answer is one or the other, not both, and the 28-day clock is already running. Speak with a criminal defence lawyer as soon as possible after your result, so the right appeal is identified, the risks are weighed, and nothing is lost to a missed deadline.
