Sentencing for Fraud Over $5,000 Brief: Difference between revisions
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==Briefs== | ==Briefs== | ||
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Revision as of 19:22, 20 March 2019
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Briefs
A sentencing brief is structured as follows:
- Overview
- Identify the charges, including time, place and section of the code.
- Identify the issue for sentencing
- Outline desired result
- Facts
- Summary of undisputed Facts
- Summary of anticipated disputed facts, including what witnesses will be provided
- Enumeration of relevant exhibits
- Positions of Parties
- Principles of Sentencing
- Objectives to be emphasized in Case
- Applicable Factors
- Prior Cases
- Analysis / Discussion of Case
- Ancillary Orders
- Legal Requirements of Order
- Interpretation of Provisions
- Discussion of Application
- Summary of Party's Position
- Breakdown of the requested Sentence, including any factual
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C A N A D A File# ________________ IN THE [LEVEL OF COURT] OF [PROVINCE] BETWEEN: – and –
CROWN/ACCUSED SENTENCING BRIEF |
| Table of Contents |
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TABLE OF CONTENTS(e)
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| Body of Brief |
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[This section will usually be customized to the particular offence] A. Purpose of Criminalization of Conduct B. Objectives to be Emphasized [X] In sentencing for fraud over $5,000 it has been well established that the main objectives are denunciation and deterrence. (see R. v. Dobis, 2002 CanLII 32815 (ON CA) and R v Bogart, [2002] OJ No. 3039, 2002 CanLII 41073 (ON CA), per Laskin JA at 29, 33-36 leave ref'd, [2003] SCR vi) General deterrence has been found to have a greater impact on embezzlement-type crimes and those offences where there is planning and deliberation. (see R. v. Williams, [2007] OJ No 1604 (ONSC)) And where there is a relationship of trust he need for custody is even greater (R. v. Howe, [2002] AJ No 1443, 2002 ABCA 277 (CanLII), per Hunt JA, at para 3). [X] Amongst the primary reasons for emphasizing any type of deterrence for major fraud is in order to ensure that the crime is simply not worth the venture. Is a gain of $20,000, $50,000, or $100,000, even temporarily, worthwhile if the consequence is only a fine? Probation? House arrest? A short jail sentence? A properly deterrent sentence must clearly communicate that the answer to all these questions is unequivocally in the negative. Should a sentence be not sufficiently punitive, regardless of the personal circumstances of the offender, it runs the risk of incidentally relaying the message to the next similarly situated person contemplating such a crime that it may just be worth it. [X] Factored into this too is the amount of incurred profits and the likelihood of getting caught. Should the penalty for higher dollar amounts be of negligible difference from the penalty for lesser amounts, it too runs a risk that the next offender may see the commission as “in for a penny, in for a pound”, and then proceed to continue the offence once embarked upon. Likewise, an offence that is not easily detected, such as those where the commission involves obfuscation and deception, provide some incentive to the culprit that the venture is worthwhile. There is a calculation in the offender’s mind that a reduced likelihood of getting caught will have a discounting rate upon the sentence. A properly deterrent sentence must tell the culprit that even where detection and punishment may not be particularly high, the consequence of that eventuality renders the risk unacceptable, thereby deterring the commission of the offence. [X] The justification for the emphasized objectives further extends to consideration of the inherent high degree of moral culpability in large scale commercial crime offences generally. They are often referred to as a “thinking person’s” crime, where the offence requires a multitude of repetitive and persistent decisions on the part of the accused to keep the fraud going. There must be planning to ensure that the victim is sufficiently trusting of the accused to give over their money and to ensure the scheme is not readily detected, including the fabrication of plausible lies and other smoke-screens.
[X] Where there is a relationship of rust he need for custody is even greater.
C. Range of Sentence [X] Generally across Canada, the sentencing range for the offence of ... ranges anywhere between ... and ... . Our position is that the proper range for this type of offence would land in the between X and Y. When tailored to the specifics to this offender we are recommending a period of incarceration of XX. [X] The recommended sentence presented here is in light of cases from within the province:
[X] There are also cases from elsewhere in Canada including the following:
[X] The recommended sentence presented here is in light of cases from within the province: [X] Section 718.2 obliges the sentencing judge to increase and decrease a potential sentence on consideration of the enumerated aggravating and mitigating features that go to the gravity of the offence and degree of responsibility of the offender. The section states the following:
[X] Section 380.1 directs the sentencing judge to consider further circumstances for certain fraud-related offences:
[X] In particular to this offence, the offence-specific factors found in s. XXX should be considered as well. A. Gravity of Conduct [consider the relationship of trust, the degree of physical or psychological harm] B. Sophistication of the Offence [X] The offence(s) in this case were [planned and continuous/spontaneous and impulsive]. ...
[X] The commission of large-scale frauds is a "thinking" person's crime. That is to say that it is far from impulsive or spontaneous. It was observed in R v Tucker, [1988] N.S.J. 33 (NSCA): This is not a case involving one or two transactions but rather is one of a continued premeditated fraud perpetrated by a knowledgeable businessman and carried out over a lengthy period of time. General deterrence must be the paramount consideration because it is of the utmost importance for the public generally and the business community in particular to understand that those who practice fraud in commercial matters will be severely punished. C. Vulnerability of Victim
[X] In addition to the common law, the Criminal Code codifies circumstances as aggravating under s. 718.2(a)(iii). D. Responsibility and Moral Culpability of the Offender E. Guilty Plea, Remorse, and Acceptance of Responsibility F. Character and Risk to Re-Offend G. Addiction and Mental Health H. Prior Criminal Record and Repeat Offenders It has been well recognized that the absence of prior record supports greater consideration of the principle of restraint. It may often mean the difference between incarceration and freedom. The circumstances of fraud will often provide some different considerations. This is for two reasons. A good reputation will often be instrumental to the offender's earning of trust that granted them access to the position that allowed them to commit the offence. The offences of fraud are not discrete one-time offences. They are persistent and repetitive. They are planned and deliberate. The reflect numerous choices to repeat and continue the criminal enterprise.
I. Effect on Employment, Family and Immigration J. Prospects of Rehabilitation K. Totality L. Remand Credit |
| Table of Authorities |
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PART X: TABLE OF AUTHORITIES(e)
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