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)

Reasons for Decision (disputed) - 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 in s. 718.
• Additional objectives are found in 718.01 to 04
• 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) 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

Ancillary Orders

• s. 727 victim fine surcharge

Remaining charges

• disposition of remaining charges: withdraw or DWOP

Reasons for Decision (disputed) - 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)

Reasons for Decision (disputed) - 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

Reasons for Decision - 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

Reasons for Decision - 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

Reasons for Decision - 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

Reasons for Decision - 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

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.

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=

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.

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

Ancillary Orders

See Also

• Trial Judgement