Sentencing Checklists

• < Sentencing

This checklist consists of issues that are often considered in preparation for sentencing. The list is based on the one found at the Law Society of British Columbia website [1].

Crown Preparation

• prepare and review summary of facts
  • consider formal Agreed Statement of Fact (s. 655)
  • consider Gardiner hearing to prove aggravating factors
  • prepare any exhibits (reports, photographs, records)
• prepare copy of accused's record
  • if disputed, prepare proof of record
• consider PSR (s. 721)
• make referral for victim impact statements (s. 722(4))
• consider restitution, may need to call evidence if not in agreement (s. 738)
• identify primary principles for particular offence
• identify any prohibited penalties
• consider ranges:
  • identify max and min penalty
  • prepare and review cases on sentence
• prepare draft ancillary orders:
  • Identify which charges associated with order(s)
• prepare list of conditions appropriate for sentence (on CSO or probation)

Defence Preparation

• obtain letters of reference and support

Client's background

• Age
• History of places of residence
• Family relations ( siblings, spouses, children )

Education

• Level of Education
• Post-secondary education
• Certificates earned / licences

Employment

• Employment history
• employment prospects

Offence Circumstances

• accused mental state at time (intoxication/personal difficulties)
• degree of contact with victim (e.g. physical contact/proximity)
• degree of harm to victim
• degree of violence (intended/actual/threatened/potential)
• attempts to minimize violence
• use of a weapon
• degree of provocation
• whether accused was in a position of trust
• whether offence was isolated or part of enterprise
• role of accused (prinicpal; follower; instigator; intended outcome)
• Motive
• Impact on the offender (lost licence/job/relationship)
• Whether accused co-operated with police

Risk to the Public

• whether record has numerous offences and suggests removal from public necessary
• whether record has serious offences and suggests removal from public necessary
• whether accused is a dangerous, mentally unstable person and needs to be removed from public
• extent to which there are similar offences in the community
• whether the accused's income comes from illegal activity and makes it a livelihood

Rehabilitation

• whether there is a persistent pattern of criminal activity (note periods of time in community without criminal activity)
• consider motive for offence (e.g. lead-up) and whether it could happen again
• whether the client is remorseful and willing to report such to the court
• consider physical/mental disabilities that are treatable/controllable
• consider addiction history (treatment programs, dates, and outcomes)

Supporting evidence

Sources

• obtain consent to release documentation (medical, school, etc.)
• get contact info for collateral sources as character references
• get name of probation officer and get permission to contact them (contact probation officer and get input)

Documents

• Pre-sentence report
• get letters of reference (employer or character reference)
• letter from probation officer or corrections officer on progress
• restitution amount
• apology letter to victim
• medical/psychiatric reports

Sentence issues

Dispositions

• ability to pay fines (if so, time needed to pay)
• ability to complete community service (if not, why?)
• ability to comply with boundary conditions (stay away from areas or people)
• Possibility of a request for a DNA Order (consider reasons why not)
• Possibility of a request for a weapons prohibition (consider reasons why not)

Procedure

• review recommendations of parties
• remind of opportunity to address judge
• notify of victim fine surcharge

Dispositions

1. Withdraw
2. Diversion
3. Peace Bond
4. Absolute Discharge
5. Conditional Discharge
6. Suspended Sentence
7. Fine
8. Conditional Sentence
9. Intermittent Jail
10. Provincial Jail
11. Federal Prison
12. Driving Prohibition
13. Restitution
14. DNA Order
15. SOIRA ORder
16. Weapons Prohibition Order

Probation

• keep the peace and be of good behaviour;
• appear before the court when required to do so by the court; and
• notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

• report to a probation officer
  • within 2 working days, or as the court directs, and
  • thereafter, when required by the probation officer;
• remain within the jurisdiction of the court unless written permission to go outside that jurisdiction;
• abstain from
  • the consumption of alcohol or other intoxicating substances, or
  • the consumption of drugs except in accordance with a medical prescription;
• abstain from owning, possessing or carrying a weapon;
• provide for the support or care of dependents;
• perform up to 240 hours of community service over <= 18 months;
• if the offender agrees, participate actively in a treatment program approved by the province;
• attend at a treatment facility for assessment and curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended pursuant to the program;
• where [there is] a program governing the use of an alcohol ignition interlock device by an offender and if the offender agrees to participate in the program, comply with the program; and
• comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.

Recommended custom probationary terms

None of these proposed conditions are judicially directed, and should only be used as a template or guidance for crafting terms most appropriate for certain offenders. Where possible I have included references to cases using similar terms.

Contact

• (light) no contact with persons under 16 (or 18) years of age except in presence of parent or guardian or incidental to work or an educational program
• (mid) no contact with persons under 16 (or 18) years of age except in presence of parent or guardian who has been informed of conviction
• (strict) no contact with persons under 16 (or 18) years of age

Alcohol

• (light) not to possess or consume alcoholic beverage public
• (light) not to consume alcoholic beverages to the point of intoxication
• (strict) not to possess or consume alcoholic beverages

Computer Use

• (light) not to possess or access any computer systems for the purpose accessing the internet except for work or educational purposes
• (light) not to possess or access any computer systems for the purpose accessing the internet
• (mid) not to possess or access any computer systems capable of accessing the internet
• (strict) not to possess or access any computer systems
• submit to searches by police or probation officers for the purpose of verifying compliance with these conditions
• not to have an account with an Internet Service Provider

Sentencing Procedure

Crown submissions:

1. crown states position on sentence
2. crown establishes facts to be relied upon
   1. read summary of facts
   2. call witnesses if disputed facts (s. 724(3)(a)) or call witnesses anyway (s. 732(2)) [hearsay is admissible (723(5))]
   3. facts are on record already from trial
3. submit criminal record
4. submit notice to seek increased penalty
5. submit / read victim impact statement
6. review and comment on pre-sentence report
7. review and comment on relevant cases
8. make recommendation on conditions in probation or CSO
9. request ancillary orders

Defence submissions:

1. offender's background including employment, family, health, and financial circumstances
2. submit letters of recommendation and character witnesses
3. review and comment on relevant cases
4. make recommendation on sentence
5. comment on ability to pay the victim fine surcharge / time needed to pay any fines
6. comment on any ancillary orders being requested
7. comment on conditions in probation or CSO (particularly with curfew and house arrest exceptions)