The criminal record can show that the offender is a "scofflaw", is not rehabilitated or has not "learned from past mistakes."
An offender who has demonstrated an exemplary life since a prior offence and demonstrates remorse may be considered for a reduced sentence and reduce the need for specific deterrence.
It is an error in principle to determine a sentence based only on the sentence from a previous conviction. It is a "relevant consideration" but the sentence must be driven by the facts of the case. It is relevant to whether "the offence is uncharacteristic for the offender...whether the offender demonstrates a continuing attitude of disobedience of the law."
A person who has received a discharge can still be considered a "first time offender."
- Over-weighing Criminal Record
The record "should not be given so much weight such that it becomes more influential than the circumstances of the offence."
It is important that the prior criminal record not be over-emphasized such that it amounts "to a re-sentencing of the accused for the previous offence(s)."
This is largely codified in s. 725:
An offence committed while on parole is an aggravating factor. By contrast the added consequences of parole revocation should not be mitigating.
- Timing of Prior Record
A criminal record can only be considered where the offender had one at the time of the index offence (this is known as the Coke Rule).
However, when a judge sentences for a convicted offence, the judge may take into consideration other criminal acts, and in a limited fashion, such as offences admitted in an agreed statement facts or pending charges.
- R v Squires, 2012 NLCA 20 (CanLII), 289 CCC (3d) 429, per Welsh JA (2:1), (a criminal record "will be viewed as an aggravating factor leading to a more serious punishment rather than as a factor that tends to limit or lessen punishment.")
R v Lau, 2004 ABCA 408 (CanLII), 193 CCC (3d) 51, per Hunt JA, at para 29
R v Felix, 2019 ABCA 458 (CanLII), per Antonio JA, at para 45 ("The starting point established herein presumes an offender who has no criminal record and is of prior good character, and who has been found guilty after trial.")
R v JJM, 2021 ABCA 170 (CanLII), per curiam
contra R v RM, 2019 BCCA 409 (CanLII), per Fenlon JA at paras 20 to 25
- R v Barrett, 2012 NLCA 46 (CanLII), 291 CCC (3d) 213, per Hoegg JA (3:0), at para 35 (a “criminal record is often quite relevant on sentencing in that it may show the offender to be a scofflaw, or lead to an inference that he or she has not been rehabilitated or otherwise learned from past mistakes.”)
R v RA, 1994 CanLII 4524 (MB CA), 88 CCC (3d) 184, per Twaddle JA
R v Garnet Lee Cole, 2013 NBPC 9 (CanLII), per Brien J, at para 34
Squires, supra, at para 55
Squires, supra, at para 55
R v Presgrave,  QCCA 105(*no CanLII links)
, at para 32
R v Barclay, 2018 ONCA 114 (CanLII), 44 CR (7th) 134, per Hoy ACJ, at paras 44, 49
Presgrave, ibid., at para 32
- R v Moller, 2012 ABCA 381 (CanLII), 539 AR 300, per curiam (3:0) , at para 11
- R v Lavallee, 2006 ABCA 324 (CanLII), 214 CCC (3d) 223, per Costigan JA (3:0)
R v Andrade, 2010 NBCA 62 (CanLII), 260 CCC (3d) 353, per Robertson JA (3:0)
see also R v Garcia and Silva, 1969 CanLII 450 (ON CA),  1 OR 821 at 823,  3 CCC 124 (CA), per Gale ACJ (3:0)
Garcia and Silva, supra
see also R v Edwards, 2001 CanLII 24105 (ON CA), OR (3d) 737, per Rosenberg JA (3:0)
The "coke rule" states that a harsher penalty for a subsequent offence cannot be imposed unless the previous conviction was already recorded at the time of the commission of the subsequent offence. 
First Time Offenders
The first sentence for an offender should be "tailored to the individual circumstances of the individual circumstances of the accused rather than solely for the purpose of general deterrence."
- Whether to Impose Custodial Sentence on First-time Offenders
When considering sentence for a first-time offender, incarceration should only be imposed when the gravity of the offence requires it.
Section 725(1)(c) permits the court "may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge".
This provision is the only exception to the rule that offenders are only punished "in respect of crimes for which they have been specifically charged and of which they have been validity convicted."
There must be a connection between the offence before the court and the uncharged conduct.
- "Forming part of the circumstances of the offence"
Whether uncharged conduct is part of the circumstances of the offences is determined "on a case-by-case basis."
Where the conduct does not "form part of the circumstances of the offence", it may still nonetheless be relevant should it "form part of the circumstances of the offender."