Can Your Sentence Increase on Appeal in Queensland?
Appeals — 2026-06-23 — by Sacha Sarah Smith, Civic Law
Thinking about appealing your sentence? In some circumstances, the sentence can go up — not just down.
You are thinking about appealing your sentence. Most people assume an appeal is a one-way bet — the sentence either comes down or stays the same. That is usually what happens. But it is not the only possibility. In Queensland, there are circumstances where your sentence can go up on appeal — and understanding that risk is part of deciding whether to appeal at all.
The One-Month Deadline
Before anything else: the time limit for lodging a criminal appeal is one calendar month from the date of sentence. That applies whether you are appealing from the Magistrates Court to the District Court under section 222 of the Justices Act 1886 , or from the District Court or Supreme Court to the Court of Appeal under section 671(1) of the Criminal Code .
One calendar month means exactly that — if you are sentenced on 10 June, the deadline is 10 July. Not 28 days. Not "about four weeks." The clock starts running immediately.
Extensions of time are available but granted sparingly. The longer you wait past the deadline, the harder the application becomes. You will need to explain the delay and show that the appeal has genuine merit.
If you are considering an appeal, get advice within the first week — not day twenty-eight. A proper assessment of whether an appeal has merit, and whether the risk of an increase is manageable, takes time. Sacha needs to obtain the transcript, review the sentencing remarks, and identify whether there are arguable grounds before the notice is filed.
Appeals from the Magistrates Court to the District Court
Most criminal appeals in Queensland are appeals from the Magistrates Court to the District Court under section 222 of the Justices Act 1886 . These cover the bulk of criminal matters — drink driving , drug offences , assault , DVO breaches , public nuisance, and traffic offences.
A section 222 appeal is heard by way of rehearing on the evidence from the Magistrates Court — meaning the District Court judge reviews the transcript, the sentencing remarks, and any submissions. However, this is a rehearing on the record, not a sentencing from scratch. The District Court must identify an error by the magistrate before intervening — for example, that the magistrate acted on a wrong principle, overlooked a relevant factor, or imposed a sentence beyond the permissible range.
The District Court may also grant leave to hear fresh evidence that was not before the magistrate, but only if there are special grounds for doing so (section 223(2) Justices Act ). New rehabilitation material, employment changes, or medical evidence obtained after sentence can sometimes qualify — but it is not automatic.
Because it is a rehearing, the District Court has the power to substitute any sentence that the Magistrates Court could have imposed — including a higher one. That power exists in law. In practice, increases on a defendant's own appeal are rare. The District Court is generally reluctant to penalise you for exercising your right to appeal. But the risk is not zero, and you need to know it exists before you lodge.
The Guilty Plea Limitation
If you pleaded guilty in the Magistrates Court, your appeal rights are narrower. Section 222(2)(c) of the Justices Act 1886 limits your appeal to one ground only : that the fine, penalty, forfeiture, or punishment was excessive or inadequate. You cannot challenge the conviction itself — only the sentence.
If you pleaded not guilty and were convicted after a hearing, you can appeal both the conviction and the sentence. A conviction appeal argues the magistrate got the verdict wrong — that the evidence did not support a finding of guilt, or that a legal error occurred during the hearing.
Prosecution Appeals
The prosecution can also appeal your sentence — from the Magistrates Court to the District Court under section 222, on the basis that the sentence was too lenient. If the prosecution appeals and succeeds, the District Court can — and regularly does — increase the sentence.
Prosecution sentence appeals are less common than defendant appeals, but they happen. They are most likely in matters involving violence, repeat offending, or where the magistrate imposed a sentence well below the comparable range. If you received a sentence significantly below what is typical for the offence, this is a real possibility.
Appeals to the Court of Appeal
For matters dealt with on indictment in the District Court or Supreme Court, the appeal pathway is to the Court of Appeal. These are more serious matters — indictable offences including serious drug offences, grievous bodily harm, robbery, sexual offences, and other charges carrying substantial prison terms.
Your Appeal — Section 668D
You may appeal against sentence with leave (permission) of the Court of Appeal under section 668D(1)(c) of the Criminal Code . Leave is not automatic — you must demonstrate arguable grounds that the sentence was manifestly excessive, or that the sentencing judge made an identifiable error.
If leave is granted and the appeal is heard, the Court can dismiss it, reduce the sentence, or — under section 668E(3) — increase it. The power to increase your sentence on your own appeal exists in the legislation.
In practice, the Court of Appeal will generally warn you if it is considering an increase, giving you the opportunity to withdraw the appeal before the higher sentence is imposed. That is a longstanding procedural safeguard — not a legal prohibition. If the Court signals that your sentence looks lenient rather than excessive, the smart move is usually to withdraw.
Attorney-General's Appeal — Section 669A
The Attorney-General may appeal against your sentence on the basis that it was manifestly inadequate under section 669A(1) of the Criminal Code . If the Court of Appeal agrees, it has an "unfettered discretion" to vary the sentence and impose whatever sentence it considers proper. That almost always means a higher one.
Attorney-General's appeals are reserved for cases where the sentence is clearly out of step with comparable cases. They are not common, but they are not rare either — a sentence significantly below the range for the offence type and your history is a candidate. These appeals can be lodged even if you have not appealed yourself.
What Happens at the Appeal Hearing
For a section 222 appeal to the District Court, the hearing is usually listed several months after filing. The judge reads the transcript of the original proceedings, the sentencing remarks, any written submissions, and any new material you want to put before the court. Your lawyer makes oral submissions. It is not a second trial — no witnesses are called unless the court specifically orders it.
For a Court of Appeal matter, the hearing is based on the trial transcript and written submissions filed in advance. The court hears oral argument from both sides. Court of Appeal matters can take six to twelve months to be heard after filing.
In both courts, preparation is everything. The appeal is won or lost on the quality of the written submissions and the identification of clear, arguable grounds — not on a general sense that the sentence was unfair.
Bail Pending Appeal
If you have been sentenced to imprisonment and you file an appeal, you can apply for bail pending the hearing. Bail pending appeal is not granted as a matter of course — the court needs to be satisfied that the appeal has arguable merit, that you are not a flight risk, and that there are proper reasons to release you while the appeal is determined.
Where the sentence is relatively short and a substantial part of it would be served before the appeal is heard, that is a factor in favour of bail. Where the sentence is long and the appeal grounds are strong, bail may also be appropriate. If the grounds are weak, bail is unlikely.
How to Assess the Risk
Before lodging an appeal, you need a realistic assessment. Not every sentence that feels harsh is appealable, and not every appeal is worth the risk.
Where does the sentence sit in the range? If the sentence is within the normal range for the offence and you are arguing it should have been at the lower end rather than the middle, the risk of an increase is negligible — but the prospects of success are also modest. If the sentence is already at the lower end, drawing attention to it by appealing carries more risk.
Is there an identifiable error? An appeal grounded in an identifiable error — the magistrate overlooked a relevant factor, misapplied the law, failed to consider comparable sentences, or imposed a penalty out of step with the range — is a different proposition from "I wish it had been less." The former has real prospects. The latter usually does not.
Could the prosecution cross-appeal? In the Court of Appeal, the prosecution can respond to your appeal by seeking an increase. In the District Court on a section 222 appeal, the prosecution may separately appeal for inadequacy. If your sentence is at the low end and you appeal, you risk the prosecution saying "we agree — it was too low."
What fresh material is available? For section 222 appeals, the District Court may grant leave to hear new evidence if there are special grounds — rehabilitation progress, employment changes, or medical reports obtained after sentence. Sometimes the strongest basis for an appeal is material the magistrate never saw. But leave is required, and "special grounds" must be shown.
Is it worth the cost and delay? An appeal takes months. If you are on a community-based order that will be completed before the appeal is heard, the practical benefit may be gone. If you are in custody, the calculation is different. A realistic cost-benefit assessment is essential.
Conviction Appeals
Everything above focuses on sentence appeals — challenging the penalty, not the finding of guilt. Conviction appeals are a different pathway. You are arguing that the verdict itself was wrong — that the evidence did not support it, that a legal error occurred during the hearing, or that there was a miscarriage of justice.
Conviction appeals are harder to succeed on than sentence appeals. If you pleaded guilty, a conviction appeal is not available through section 222 — you accepted the charge. If you were convicted after a hearing, the appeal challenges whether the magistrate or judge was right to convict on the evidence. The appellate court applies a high standard before overturning a guilty verdict.
If the conviction is overturned, the charge may be dismissed entirely, a verdict of not guilty entered, or the matter remitted for a new hearing. Civic Law has had convictions set aside on appeal — but only where the grounds were real.
Talk to Civic Law
An appeal is one of the most consequential decisions in a criminal matter. It should be made with a clear understanding of what can be gained, what can be lost, and whether the grounds justify the risk. Sacha will review the transcript, assess the sentence against comparable cases, and give you a direct answer about whether the appeal is worth running. Read more about the full appeals process or the sentencing framework that determines where your sentence sits.
Call Sacha Sarah Smith on 0425 429 458 .
Sentence Appeal
Conviction Appeal
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