Sentencing Brief (Generic): Difference between revisions

Revision as of 12:24, 14 March 2019

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 ... contrary to s. ... of the Criminal Code.

(2) ... did commit the offence of ... contrary to s. ... of the Criminal Code.

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 conditional sentence order should be as follows:

Statutory conditions required by the Code.
[list of terms and conditions]

[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

Template:SentencingBriefFacts

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: OBJECTIVES OF SENTENCING IN THIS CASE

A. Purpose of Criminalization of Conduct

B. Objectives to be Emphasized

PART VI: AGGRAVATING AND MITIGATING FACTORS OF THE CASE

A. Gravity of Conduct

A. Sophistication of the Offence

B. Vulnerability of Victim

C.

B. Guilty Plea and Acceptance of Responsibility

B. Prior Criminal Record and Repeat Offenders

B. Prospects of Rehabilitation

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

@@ Line 57: / Line 57: @@
 <u>'''E. Totality and Concurrent vs Consecutive Sentences [assuming multiple offences charged]'''</u>
+<Center><u>'''PART V: OBJECTIVES OF SENTENCING IN THIS CASE'''</u></center>
-<Center><u>'''PART V: AGGRAVATING AND MITIGATING FACTORS OF THE CASE'''</u></center>
+<u>'''A. Purpose of Criminalization of Conduct'''</u>
-<u>'''B. Vulnerability of Victim'''</u>
+<u>'''B. Objectives to be Emphasized'''</u>
-<u>'''A. Guilty Plea and Acceptance of Responsibility'''</u>
+<Center><u>'''PART VI: AGGRAVATING AND MITIGATING FACTORS OF THE CASE'''</u></center>
-<u>'''B. Prior Criminal Record and Repeat Offenders'''</u>
+<u>'''A. Gravity of Conduct'''</u>
-<u>'''B. Prospects of Rehabilitation'''</u>
+<u>'''A. Sophistication of the Offence'''</u>
-<Center><u>'''PART VI: OBJECTIVES OF SENTENCING IN THIS CASE'''</u></center>
+<u>'''B. Vulnerability of Victim'''</u>
-The purpose behind the criminalization of the conduct captured by the offence was described in ''R v Legare'', where Justice [name] stated the following:
+<u>'''C. '''</u>
-:[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.
+<u>'''B. Guilty Plea and Acceptance of Responsibility'''</u>
-:[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.
+<u>'''B. Prior Criminal Record and Repeat Offenders'''</u>
-:[30] As Hill J. explained in R. v. Pengelley, [2009] O.J. No. 1682 (QL) (S.C.J.), at para. 96:
+<u>'''B. Prospects of Rehabilitation'''</u>
-::... 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).
 <Center><u>'''PART VII: RELEVANT SENTENCING CASE LAW'''</u></center>