SENTENCING HEARING

Aaron Rainey

ADMISSIBILITY OF EVIDENCE

•All of the facts accepted at trial and all findings made by the trial judge will be will be applied at a sentencing hearing. If the offender has pleaded guilty, the facts are simply read to him, and he admits those facts. The offender may decide whether or not to admit to specific facts.•Crown or Defence counsel can bring in additional information as it pertains to sentencing. This includes evidence given from witnesses, medical reports, sentencing reports, etc. Submissions can are heard at the sentencing hearing by both the Crown Attorney and the counsel for the offender; submissions are arguments put forth by either side disputing issues in question.

ADMISSIBILITY OF EVIDENCE

•Hearsay evidence is used and allowed as long as it is credible and trustworthy (Slide 4 will explain when certain evidence is not acceptable). •Usually, this is background information and counsel will give these facts without calling evidence to back them up• Ex: When submitting any mitigating factors to judge

the defence might say that the accused has been going to rehab, or that accused has a job, etc (more info on Slide 6).

SIMILAR FACT EVIDENCE

•Similar Fact Evidence comes from a situation in the offenders past where he committed misconduct, and similar facts were present then as they are in offences at bar. The Crown uses this evidence to discredit the accused and to infer that if the offender did it in the past, he’s likely to do it again.•R v. Handy (2002) (SCC) says that as a general rule similar fact evidence is not to be admitted. Evidence argued to be an exception to this rule must have high probative value outweighing on a balance of probabilities the possibility of prejudice.

Propensity Reasoning •Within the principle of excluding Similar Fact Evidence is a line of reasoning called propensity reasoning.•Essentially it is where counsel reasons using Similar Fact Evidence to reveal similar past misconduct proving the offenders propensity (natural tendency or inclination) to conduct himself in a certain way, therefore, offering proof that accused is guilty of the present charges before him.

BURDEN OF PROOF

•If there are any aggravating or mitigating factors to be disputed the onus of proof is on the party who is relying on them.•Mitigating Factors: Proven on Balance of Probabilities•Aggravating Factors: Proven Beyond a Reasonable Doubt

PROVING A CRIMINAL RECORD

•Criminal record can be admitted as evidence at a sentencing hearing•If it is not admitted, then the Crown must prove it through other means to rely on it at sentencing.

PRE-SENTENCE REPORT (PSR)

What is it?•A report used to assist the judge in passing sentence or to help the judge decide whether the accused should be discharged.•PSR includes (s. 721(3)(a)-(d)):A.Age, maturity, character, behaviour, attitude and willingness to make

amends B.Subject to subsection 119(2) of the YCJA, the history of previous

dispositions under the YOA, history of previous sentences under YCJA, and previous findings of guilt under the CCC or any other Act.

C.History of any alternative measures used to deal with offender and the offender’s response to those measures

D.Any other matter required, by any regulation made under subsection (2), to be included in the report.

PRE-SENTENCE REPORT

Other things to be included: Current substance abuse, past substance abuse, community recommendations, current intimate relationship, substance abuse treatment plans, recidivism risk, relationship problems, family support, etc.

PRE-SENTENCE REPORT

When can it be used?•S.721 of the Criminal Code states that a probation officer must prepare a PSR when the court requests one.•A court will request a PSR for the purpose of assisting the court in imposing a sentence OR determining whether the accused should be discharged.•Court can only request a PSR if the accused has been found guilty or if accused enters plea of guilt.

VICTIM IMPACT STATEMENT (VIS)

What is it?•A written statement prepared and given by the victim or a family member where the victim is incapable of doing so•A written statement can also be given by a person who is a direct family member of the victim (s. 722(b)(1))•There is no limit to how long the VIS can be•VIS gives the victim a chance to tell the court how the offences affected him or her•Can be read in by the Crown, the victim (in person or via CCTV) or a family member

VICTIM IMPACT STATEMENT

When can it be used?•At the sentencing hearing•The Judge shall take VIS into consideration when imposing a sentence

MEDICAL REPORTSWhat are they?•Expert opinions that address concerns surrounding the presence or absence of a mental disorder which are seen to affect behaviour and decision making. •The offender is allowed to use medical reports as evidence•Crown is not usually allowed to adduce psychiatric material related to the offender.•“Protected Statements” are any statements made by the accused in an assessment or treatment as directed by a disposition. They cannot be used without the offenders consent except for specified purposes (next slide).

PROTECTED STATEMENTS

Protected Statements are admissible in evidence when (s. 672.21 (3)) …A.Determining if accused is Fit to Stand TrialB.Making a disposition or placement decision C.Determining whether to review a finding that the accused is a high-risk offender

or whether to revoke that findingD.Determining on a balance of probabilities whether a female person who has

been charged with an offence arising out of the death of her new born child was disturbed at the time of the offence.

E.Determining if accused is NCR. Accused must raise this issue.F.Challenging credibility of accused where the testimony of the accused is

inconsistent in a material particular with a protected statement that the offender made.

G.Establishing perjury of an accused who is charged with perjury in respect of a statement made in any proceeding

SEXUAL BEHAVIOUR ASSESSMENT

•For sexual offenders, this assessment is used at the sentencing hearing to determine the proper range of sentencing •Used to determine the offenders risk of reoffending •There are nine tests within this assessment•R v D (DA) (2014) ONSC recognized the offenders low risk of reoffending, and it is seen to have been a mitigating factor when the judge imposed the sentence

OFFENDERS RIGHT TO SPEAK

•s.726 states that an offender has the right to speak to the court before his sentence is imposed.

RANGE OF SENTENCING

•This is where everything that we have learned thus far comes together.•We’re going to look at four things that play into establishing a proper range of sentencing:1.The different types of Mitigating and Aggravating Factors

2.Concurrent vs. Consecutive Sentencing and the Totality Principle

3.Conditional vs. Incarceration Sentences4.Kienapple Principle

MITIGATING FACTORS1.Short time span 2.Only one offence that the offender is being currently sentenced for

3.First time offender4.Prior good character5.Current or recent employment6.Cooperation with authorities 7.If the offender has made attempts to help himself since the time of the offence (i.e. counselling)

8.Remorse/Acceptance of Responsibility9.Disadvantaged Background

AGGRAVATING FACTORS

1.Long time span2.Multiple offences 3.Repeat offender4.Breach of Trust 5.Vulnerability of Victim6.Multiple Victims7.Use of a Weapon8.Cruelty or Brutality 9.Association with Criminal Organization10.Offence was a part of group or gang activity 11.Victim was a spouse or partner

CONCURRENT VS. CONSECUTIVE SENTENCING AND THE TOTALITY

PRINCIPLE•Generally speaking, sentences that are a part of the same event or transaction ought to be served concurrently.•Offences that are discrete in time and nature should be served consecutively •The Totality Principle says that consecutive sentences cannot amount to produce excessive punishment. •R v Jewell (1995) ONCA puts all of this together for us.

CONDITIONAL VS. INCARCERATION

•When can a conditional sentence be imposed?•R v Proloux (2000) SCC lays out the criteria that must be met in order for a conditional sentence to be allowed:

1. The offender must be convicted of an offence that is not punishable by a minimum term of incarceration.2. The court must impose a total sentence that is less than two years in length.3. The safety of the community would not endangered by the offender serving the sentence in the community; and4. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss.718 to 718.2 of the Criminal Code.

KIENAPPLE PRINCIPLE•This principle applies in situations where there is a factual and legal nexus between charges.•Sexual Assault and Sexual Interference are two offences where a legal nexus is found.•Sexual interference is a particularization of sexual assault in that sexual interference distinguishes itself from sexual assault by including the involvement of an underage person. Sexual assault is essentially the same offence as sexual interference in that sexual assault is the touching of another person’s body regardless of their age.•R v M (SJ) (2009) ONCA is a case where the Kienapple principle is used.