Guidebook for Sentence Appeals
3.1 Review the transcript of your sentence proceedings
When you file your notice of appeal, the registrar will order a transcript of your sentence proceedings. A transcript is a typed record of everything that was said at your sentence proceedings. It will contain the basic information you will use for your argument on your appeal. Once the registrar receives the transcript, he or she will send you or your lawyer a copy of it. You should review the transcript when you receive it.
3.2 Prepare your written argument
It is a good idea to prepare and file a written outline of your argument. This is called a factum when it is filed by a lawyer but is called a written argument if you file it yourself. Your written argument should not be longer than 15 pages. At the hearing, you base your oral arguments on the outline that you have presented in your written argument. Your written argument helps you to clearly explain your argument to the court.
In a sentence appeal, your argument must stick to the facts that were presented to the sentencing judge. When you are preparing your argument, remember that, when you were sentenced, the most important question the sentencing judge considered was: “What sentence should this offender receive for this offence, given the circumstances under which it was committed?”
Consider providing the following information so that the court can assess whether the sentencing judge imposed an unfit sentence:
- The reason for the sentence appeal:
- the sentence is excessive,
- the sentence is illegal, or
- there was an error in principle.
- The circumstances of the offence:
- whether it was pre-meditated or happened on the spur of the moment,
- whether violence was involved or a weapon was used, and
- what your participation was in the offence.
- Your attitude towards this offence:
- why you pleaded guilty, if you did; and
- whether you are remorseful.
- Your personal history:
- family situation,
- Aboriginal background (if applicable),
- employment history, and
- criminal record
- Your plans upon release:
- counselling, or
- drug treatment program.
3.3 How to apply for release on bail pending appeal
If you are in custody and wish to be released until your sentence appeal hearing, in addition to filing your notice of appeal you must file a notice of motion in Form L and an affidavit in Form M in the registry office.
Prepare your notice of motion and affidavit
Your affidavit should contain at least the following information:
- where you lived before you were convicted;
- where you intend to live if you are released;
- the name of your employer and the place of your employment before you were convicted;
- your employment prospects if released;
- any supports you will have in the community if you are released; and
- any special individual circumstances relating to your physical and mental health, or potential for harm to you or your family if you aren’t released.
Write your written argument for release on bail
When you are writing your argument for release on bail, it is very important to be as persuasive as possible. There is no required form or format, but your written argument for release should help you to convince the court of the following:
- your appeal has merit (a chance of succeeding);
- you’ll attend at court on the date of your appeal and will surrender yourself into custody if you lose your appeal; and
- keeping you in custody is not necessary in the public interest.
You should be fully prepared to present your argument outlining why your sentence should be reduced. If you do not convince the judge at the bail hearing that your appeal has a chance of succeeding, you will not be granted bail.
If you are in custody when the application is heard, arrangements will be made by the registry office for you to appear by telephone before a judge of the court in chambers.
3.4 Abandoning your appeal