CHECKLIST: SENTENCING From Mack's Criminal Law Trial Book Edition

Transcription

1 CHECKLIST: SENTENCING Frm Mack's Criminal Law Trial Bk Editin By Dallas Mack Authr f Mack's Criminal Law Trial Bk Editin and f Mack's Criminal Law Bulletin The additin f Checklists in the 2015 editin f Mack s Criminal Law Trial Bk is a natural prgressin in the evlutin f this cmprehensive resurce. The Trial Bk is designed and written t be a curtrm cmpanin fr criminal trial lawyers and judges; the first and best resurce fr emerging issues during prceedings. In the inaugural 2014 editin the Trial Bk fcused n prviding precise summaries f a vast range issues that criminal lawyers and judges are cnfrnted with n a daily basis. The Checklists add in new element t this cmpanin. There is an ever-grwing bdy f prvisins that apply t criminal prceedings. Publicatin bans; prvisins regarding testamentary aids; and sentencing rders such as DNA and SOIRA are just a few examples. This has created a substantial and smetimes cmplex scpe f prvisins that criminal lawyers and judges are expected t remember and understand. That was the prblem. MCL Checklists are the slutin. These Checklists prvide a quick and cmprehensive list f prvisins that apply t varius criminal prceedings. The Sentencing Checklist, fr example, prvides lawyers and judges with a cmprehensive list f the relevant prvisins and their applicability. Des a SOIRA rder apply and if s, fr hw lng? Des sectin 109 r 110 apply (t prhibit the pssessin f firearms)? These and ther issues that are generally knwn and understd but are ften difficult t recall with precisin; the Sentencing Checklist details these prvisins in a single surce. Tgether with the substantive legal prtins f the Trial Bk, the Checklists make MCL Trial Bk a mre cmprehensive resurce fr trial lawyers and judges. Guiding cunsel thrugh emerging legal issues and ensuring all prvisins are addressed and rders btained, Mack s Criminal Law Trial Bk, with the 2015 additin f Checklists is a must fr every criminal trial lawyer and judge. Carswell s Criminal Law Practice Page Exclusive Feature August 2015 Page 1 f 5

2 Checklist: Sentencing See MCLTB 7.0 APPENDICES Principles f Sentencing: s Denunce (primary cnsideratin t be given if ffence against child s , peace fficer r justice system participant s ) - Deter (primary cnsideratin t be given if ffence against child s , peace fficer r justice system participant s ) - Separate, where necessary - Rehabilitatin - Reparatins fr harm - Prmte respnsibility Statutrily Aggravating Factrs: s Mtivated by bias r hate - Abuse f spuse r cmmn-law partner - Abuse f a persn under the age f 18 years - Abuse by a persn in a psitin f trust r authrity - Impact (financial and/r health) n the victim - Offence cmmitted in cnnectin with criminal rganizatin - Terrrism ffence Pre-sentence Reprt: s. 721 Victim Impact Statements: s. 722, s Restitutin/Cmpensatin Order: s. 738 t s Weapns Prhibitin: s. 109 Mandatry Order (i) Indictable ffence when vilence used, threatened r attempted and sentence is 10 years r mre (ii) Sectins 85(1), 85(2), 95(1), 99(1), 100(1), 102(1), 103(1), 264 (crim harassment) (iii) CDSA ffences sectins 5(3), 5(4), 6(3), 7(2) Carswell s Criminal Law Practice Page Exclusive Feature August 2015 Page 2 f 5

3 MACK S CRIMINAL LAW TRIAL BOOK (iv) Offence invlving a firearm, crssbw etc and at the time persn prhibited by rder under this Act r any Act f Parliament frm pssessing any such thing. s. 110 Discretinary Order (i) an ffence ther than an ffence referred t in s. 109(1)(a), (b), and (c), in the cmmissin f which vilence against a persn was used, threatened r attempted, r (ii) an ffence that invlves, is the subject-matter f which is a firearm, crssbw etc and at the time f the ffence the persn was nt prhibited by any rder made under this Act r any ther Act f Parliament DNA Order: Mandatry: s (1)(a) - Primary Designated Offence [including 267, 268, 271, 272, 273, 279] - Frm 5.03 Discretinary: s (1)(b) - Secndary Designated Offence [including 173, 249(3), 249(4), 252, 266, 270 (plice fficer), 344, 348] - Frm Satisfied that it is in the best interests f the administratin f justice t d s Sex Offender Infrmatin Registratin Act: s Length f rder 10 years if cnvicted r fund nt criminally respnsible by mental disrder f summary ffence r where max term f imprisnment is 2 r 5 years 20 years if cnvicted r fund nt criminally respnsible by mental disrder f ffence where max term f imprisnment is 10 r 14 years Life if max term f imprisnment is life Life is at time cnvicted r fund nt criminally respnsible by mental disrder f mre than ne designated ffence see s (1) Prhibitin in Relatin t Sexual Offences Against Under 16 years: s Applies t designated ffences in 161(1.1) - Term f up t life restricting: Carswell s Criminal Law Practice Page Exclusive Feature August 2015 Page 3 f 5

4 APPENDICES Attendance at park, pl, schl r places thse under 16years knwn t be Use f the internet r digital netwrks Cntact with persns under 16 years Emplyment where ffender is in psitin f trust f persn under 16 years Victim Surcharge: s Amunt f surcharge 30% f any fine 100$/summary cnvictin ffence 200$/indictable ffence - Sentencing judge can impse an amunt greater than the minimum - Time t pay the surcharge is set prvincially by regulatin Upn applicatin an extensin may be granted APPENDICES NOTE: This checklist is intended t be a reference guide nly; certain areas, issues, questins r pints may r may nt be helpful in a given case. Carswell s Criminal Law Practice Page Exclusive Feature August 2015 Page 4 f 5

5 Abut the Authr Dallas Mack is an Assistant Crwn Attrney with the Ottawa Crwn Attrney s Office. He regularly prsecutes criminal matters in the Ontari and Superir Curt f Justice and has argued appeals at the summary cnvictin appeal level and the Ontari Curt f Appeal. Dallas is the recipient f the Nelligan O Brien Payne Award fr the highest standing in trial advcacy, f an Excelsir Award frm the Ontari Ministry f the Attrney General, and f the Prsecutr f the Year Award frm the Internatinal Assciatin f Financial Crime Investigatrs. He is als the authr f Mack s Criminal Trial Bk and f Mack s Criminal Law Bulletin, bth published by Carswell, and an adjunct prfessr f Frensic Science and Criminal Law at the University f Ottawa Law Schl. The pinins expressed herein are thse f the authr and d nt necessarily reflect thse f Thmsn Reuters. Carswell s Criminal Law Practice Page Exclusive Feature August 2015 Page 5 f 5