Sentencing for Luring Brief

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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

Cover of Brief
C A N A D A File# ________________ PROVINCE OF [PROVINCE] COUNTY OF [COUNTY] IN THE [LEVEL OF COURT] OF [PROVINCE] ([name] Region) BETWEEN: HIS MAJESTY THE KING – and – [ACCUSED NAME] CROWN/ACCUSED SENTENCING BRIEF [first party name] [first party title] [address] [address] [address] [address] Tel: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx Email: xxx@xxxxxx Counsel for His Majesty the King [second party name] [second party title] [address] [address] [address] [address] Tel: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx Email: xxx@xxxxx Counsel for the Accused
Table of Contents
TABLE OF CONTENTS(e) Page PART I: OVERVIEW X A. X i. X PART II: AGREED FACTS AND OTHER EVIDENCE X PART III: POSITIONS OF THE PARTIES X PART IV: GENERAL SENTENCING PRINCIPLES X PART V: OBJECTIVES OF SENTENCING IN THIS CASE X PART VI: AGGRAVATING AND MITIGATING FACTORS IN THIS CASE X PART VI-A: JOINT RECOMMENDATIONS X PART VI-B: AVAILABLE DISPOSITIONS X PART VII: DISCUSSION ON APPROPRIATE SENTENCE X PART VIII: ANCILLARY ORDERS X PART IX: CONCLUSIONS X PART X: TABLE OF AUTHORITIES X
Body of Brief
PART I: OVERVIEW [X] On [date], the accused [plead/was found] guilty to the commission of the following offence(s) between [date]. Specifically that he: (1) ... did commit the offence of luring a child contrary to s. 172.1(1) of the Criminal Code. (2) ... did commit the offence of ... The Crown elected to proceed by indictment/summary conviction on the hybrid offences. [X] It is the Crown/Defence position that a fit and proper sentence for the offences charged are as follows: Count # Section Offence Name Date Range Min. Penalty Max. Penalty Sentence Requested (Consecutive or Concurrent) Ancillary Order(s) 1 2 Global Sentence [total duration] Global Sentence Factoring in Totality [total duration] [X] The terms of the probation order should be as follows: Statutory conditions required by the Code. [list of terms and conditions] [X] The terms of the ancillary orders should be as follows: [list optional terms, including duration of ancillary orders] PART II: AGREED FACTS AND OTHER EVIDENCE PART III: POSITIONS OF THE PARTIES [X] The parties are not in agreement on what the fit and proper sentence would be for this accused, including the appropriate form of disposition, duration of custody, the terms of probation, and ancillary orders. [X] The PART IV: GENERAL SENTENCING PRINCIPLES A. Purpose and Principles of Sentencing B. Proportionality C. Parity D. Restraint E. Totality and Concurrent vs Consecutive Sentences [assuming multiple offences charged] PART V: AGGRAVATING AND MITIGATING FACTORS OF THE CASE B. Vulnerability of Victim A. Guilty Plea and Acceptance of Responsibility B. Prior Criminal Record and Repeat Offenders B. Prospects of Rehabilitation PART VI: OBJECTIVES OF SENTENCING IN THIS CASE The purpose behind the criminalization of the conduct captured by the offence was described in R v Legare, where Justice [name] stated the following: [28] Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs. In this context, "facilitating" includes helping to bring about and making easier or more probable -- for example, by "luring" or "grooming" young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity or precocious sexuality. [29] I hasten to add that sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on the intention of the accused at the time of the communication by computer. Sexually explicit comments may suffice to establish the criminal purpose of the accused. But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics. [30] As Hill J. explained in R. v. Pengelley, [2009] O.J. No. 1682 (QL) (S.C.J.), at para. 96: ... computer communications may serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, to cultivate a relationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire to physical sexual exploitation of a young person. [31] Accordingly, the content of the communication is not necessarily determinative: what matters is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer with an underage victim for the purpose of facilitating the commission of a specified secondary offence in respect of that victim. [32] The italicized words in the preceding paragraph, drawn textually from 172.1 (1)(c), make clear that the intention of the accused must be determined subjectively. I agree in this regard with the Attorney General of Ontario. As Doherty J.A. stated in Alicandro, at para. 31, the accused must be shown to have "engage[d] in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences" with respect to the underage person who was the intended recipient of communication (emphasis added). PART VII: RELEVANT SENTENCING CASE LAW PART VIII: JOINT RECOMMENDATIONS PART VIII(I): DISCUSSIONS OF SENTENCE
Table of Authorities
PART X: TABLE OF AUTHORITIES(e) EXHIBITS TAB ... X ... X CASE LAW TAB R v ... X R v ... X LEGISLATION: TAB ... X ... X SECONDARY SOURCES: TAB ... X ... X WEBSITES: TAB ... X ... X