Sentencing Judgement

PRECEDENT TERMS OF USE All forms, templates and precedents, including anything found on this page, can be used without the need for any attribution.

Accepting Guilty Plea

Preliminary to Decision

Preliminary Matters

Victim given notice to file a VIS
Victim notified of sentencing (if they want to read it)
Accused allowed to say something (s. 726)

Sample Structure

Version 1

INTRODUCTION

SUMMARY OF ACCEPTED/FOUND FACTS
- Often divides between factual circumstances of offence and offender

GOVERNING PRINCIPLES / LEGAL FRAMEWORK FOR SENTENCING (Purposes of sentencing , Additional objectives, Fundamental purpose, Additional principles are found in s. 718.2)
- The aggravating and mitigating factors to consider are found in s. 718.2(a) and s. 718.201

POSITION OF PARTIES
ANALYSIS
GRAVITY OF OFFENCE
- Offence Regime
  - maximum and minimum penalties in force at the time.
Drug Cases
- Additional factors are to be considered (s. 10(2) CDSA)
CIRCUMSTANCES OF OFFENDER
RELEVANT SENTENCING DECISIONS / PARITY
ORDERS (including Ancillary Orders)
Remaining charges
- disposition of remaining charges: withdraw or DWOP

Version 2

Introduction
Facts found at trial / agreed upon
Aggravating Factors
Mitigating Factors
Victim Impact Statements
Pre-sentence Report
Letters of support
Accused Statement in Court
Purpose and Principles of Sentencing
Consideration of Available Sentence (CSO, Probation, discharge, etc)
Determining a Fit and Proper Sentence (analysis and final sentence)

Version 3

Introduction
Position of the Parties
Circumstances of the Offences
- Victim Impact Statements
Circumstances of the Offender
Analysis
- Applicable Purposes and Principles of Sentencing
- Aggravating and Mitigating Circumstances:
- The Just and Appropriate Sentence
- Ancillary Orders

Version 4

Background
- Offence
- Offender
Position of Parties
Sentencing Principles
- Objectives
- Proportionality
- Application of Principles to this Case
Parity
- Starting Points
- Case Law
Fit and Appropriate Sentence

Version 5

Background
Issues
Positions
Circ of offence
Circ of offender
Principles of Sentencing
- Denunciation
- Deterrence
- Proportionality and Parity
- Aggravating and Mitigating
Sentence
Ancillary Orders

Version 6

Introduction
Circumstances of the offence
Circumstances of the offender
Application of Principles
- General principles and objectives of sentencing
- denunciation and deterrence
- rehabilitation
- proportionality (including gravity of offence and culpability of offender)
- aggravating and mitigating factors
- Parity and Range of sentence
- Restraint
Conclusion

Version 7

Introduction
Facts
Position of Parties
Victim Impact
Circumstances of Offender
Mitigating and Aggravating Factors
Principles and Objectives
- Fundamental Prupose
- Parity
- Proportionality
- Conseuctive vs Concurrent
- Conclusions
- Ancilliary Orders
- Conclusion

Version 8

Introduction (includes charges, allegations, and procedural history)
Issue
Position of Parties
Applicable Law
- General Principles and Purposes of Sentencing
- Predominant Sentencing Principles in Cases of...
The Victim Impact Statement
Background and Circumstances of accused
AGGRAVATING AND MITIGATING FACTORS
THE OFFENCES AND THE RANGE OF SENTENCE (Preliminary Observations, Ranges for the Offences of..., common law guidance)
APPLICATION OF THE LAW

Version 9

Circ of Offence
Circ of Offender
The Position of the Parties
Applicable Sentencing Principles
Discussion

Joint Recommendations

Reasons for Decision (Joint Recommendation)

INTRODUCTION

identify type of hearing
Identify name of accused
identify convicted charges
identify whether convictions were by trial or guilty plea

GOVERNING PRINCIPLES

Joint Recommendations are governed by principles set out in Anthony-Cook, 2016 SCC 43.
- Court must accept a joint recommendation in all cases except where it will bring the administration of justice into disrepute or is otherwise contrary to the public interest.
- This means that the court must regularly accept sentences that are either lower or higher than what the judge would have found.
- Court may consider the circumstances of the negotiations that reached the agreement including consideration of the frailties of the case.
Purposes and principles of sentencing (718 to 718.2)

ANALYSIS

Gravity of offence
Circumstances of offender
public interest test

ORDERS
Disposition Order

Issue warrant of committal (if any)
Issue suspended sentence with probation (if any)
Issue discharge order with probation (if any)
Issue fine order

Ancillary Orders

s. 727 victim fine surcharge

Remaining charges

disposition of remaining charges: withdraw or DWOP

Breakdown of Sections

These sections can be rearranged as described above.

Written on phone

Consider whether the appellate cases settle any issues. Consider whether there are any unsettled issues left by the appellate decisions.

Are there any differences in the stand standards? Are the principles that are only applied in certain provinces? Should they be adopted in his province? Or simply be of limited persuasive value?

Do the cases set out what type of factors are present to result in specific types of sentences? Is there an established range of penalties? Durations?

In the prior decisions, is there anything that is distinguishable?

Introduction

type of hearing and name of accused
identify convicted charges
identify the dates of trial or date of guilty plea
whether convictions were by trial or guilty plea
identify issues
short summary of positions of parties
short summary of final decision

Background

Procedural History

Trial duration / timing of guilty plea
verdict

Summary of Allegations

Positions of Parties

position of Crown, including sentence and ancillary orders
identify main justification
position of defence, including sentence and ancillary orders
identify main issues of dispute (jail vs CSO, interpretation of principles)

Background/Circumstances of Offence and Offender

Offence

review findings of facts, use subheaders as needed

Offender

review background of offender. Sources from PSR Psych assessment

Principles of Sentencing

General Overview of provisions

Purposes and principles of sentencing are found in s. 718.
- denunciation
- general and specific deterrence
- separation of offenders from society, where necessary
- rehabilitation
- reparations victims or to the community
- promote responsibility in offenders
- acknowledgment of the harm done to victims and to the community.
Additional objectives are found in:
- 718.01 (offences against children)
- 718.02 (offences against peace officers or justice system participants)
- 718.03 (offences against animals)
- 718.04 (offences against vulnerable persons)
- s. 718.04 (offences against young persons)
Fundamental purpose of sentencing is proportionality (718.1)
Additional principles are found in s. 718.2(b) [parity], (c) [totality], (d) and (e) [restraint].
The aggravating and mitigating factors to consider are found in s. 718.2(a)
Consider the vulnerability of victim in "intimate partner" offences (s. 718.201)

Specific Considerations for the Offences

identify the maximum penalty for each offence

Emphasized Purposes

describe whether case law/legislation require focus on particular principles, such as denunciation and deterrence.

Range of Sentences/Parity

identify the maximum and minimum penalties
identify any ranges articulated in any province.

aggv and mit

Prior criminal record review relevance.

Conculsion on Sentence

Disposition Order

Issue warrant of committal (if any)
Issue suspended sentence with probation (if any)
Issue discharge order with probation (if any)
Issue fine order

Concurrent vs consecutive

Totality

Disposing of remaining charges

Ancillary Orders

s. 727 victim fine surcharge