Sentencing Judgement

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

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

See Also

• Trial Judgement