How to Prepare For and Conduct a Non-custodial Sentencing Hearing as a Law Student (1:App D)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 4, 2021.|
1. Determine the available sentence and the appropriate range of sentence. Review sections 720-729 of the Criminal Code and, in particular, section 718.
2. Determine the Crown’s position on sentence – consider whether:
- There is anything the accused could demonstrate to cause the Crown to soften its position; and / or
- A delay of the hearing would be advantageous to the accused.
3. Consider any mitigating or aggravating factors. The following are some mitigating factors:
- Early plea of guilt;
- Pre-trial custody attributed to this offence;
- Restrictions placed upon the client pursuant to the release (bail) order; and
- Loss of employment or loss of license (if there was a driving offence) or other events which have caused hardship to the accused.
4. Consider the facts of the offence as it relates to our client:
- The accused person's role in the offence (i.e., follower or under the influence of others);
- Offence was the result of a spontaneous event;
- Incident was an isolated occurrence;
- Absence of property loss;
- Absence of injuries or full recovery from injuries;
- Motive (i.e., for property offences, the items obtained were necessities);
- Previous and/or subsequent positive relationship with the victim;
- Accused person’s state of mind at the time of offence;
- Mental illness short of not criminally responsible;
- Alcohol or drug involvement, particularly if addiction present;
- Accused person’s limited or diminished intelligence or emotional instability; and
- Any changes made by the accused such as counselling or other treatment.
5. Collect reference letters or letters of employment. Make 2 copies of each and confirm with the writers of the letter that the letters are authentic. The letters must state that the writer is aware of the criminal charges.
Procedure (After the Crown has made Submissions)
1. Tell the judge what the defence is seeking in terms of a sentence.
2. Tell the judge whether the defence is in agreement with the Crown’s sentencing position in terms of the sentence, the length, and conditions.
3. If the defence is not in complete agreement with the Crown position tell the judge:
- Which additional facts are relevant to the client; and
- Which portions of the Crown sentencing position are in dispute (such as the sentence, length & conditions). Note: Formal fact disputes are to be made through s. 721 of the Criminal Code.
4. Briefly review the accused person’s background.
5. Briefly discuss the effect of the crime on the accused and the changes made as a result.
6. Review why some of the conditions sought by Crown may not be necessary.
7. Tell the judge that the accused is extremely remorseful and embarrassed by the incident (if you have instructions from the client to say that).
8. Review what the defence is seeking and why it satisfies the principles of sentencing as set out in section 718 of the Criminal Code.
Sentencing Submissions Script for Law Students
1. Crown calls the case.
2. Introduce oneself– go up to the counsel table (and motion for the accused to stand beside you) – “Your Honour, my name is Jane Doe, last name spelt D-O-E. I am a law student and with the court’s leave I represent John Smith, who is present before the court.” – Get the accused to stand up from where they are seated. If they are in the gallery get them to cross the bar to stand beside the counsel’s seat.
3. Explain why the defence is here – “Your Honour, this matter is before the Court today for guilty plea and sentencing on counts 2 and 3 of the information, and we are ready to proceed”.
4. Waive the Formal Reading of the Information - “Your honour we waive the formal reading of the information”.
5. Continue on and say, “and Mr. Smith wishes to enter a guilty plea to Counts 2 and 3 of the Information.
6. If there are concerns about the accused person’s ability to understand the process, the student should instead state, “I ask that the charge be formally read to Mr. Smith”.
7. The Court will then read the charge to the accused and ask the accused to enter their plea, plus the questions required by s 606(1.1). This should only be done in rare cases where the accused is seriously mentally ill, changing instructions and throwing up red flags and the student need to protect themselves in case the client tries to withdraw their guilty plea in the future.
8. (The student and the accused can sit down at this point in time). Crown will read in the facts, state Crown’s sentencing position and make submissions as to why their position is fit and appropriate in the circumstances.
9. Defence submissions – The student should stand when making submissions and the accused can remain seated. It depends on one’s style, and each case and each submission is different, but they should have the following contents and in approximately this order:
- a) Defence sentencing position – tell the judge right away what the defence wants.
- b) Facts – Does defence have a different take on the facts of the offence. Is there further information or facts you wish to submit? Note: actual facts disputes are to be made through s. 721 of the Criminal Code, not here.
- c) Circumstances of the accused – the student should tell the judge everything that is on the background questionnaire.
- d) Go through the defence’s proposed conditions and why. Link the condition you are proposing back to a specific principle of sentencing.
- e) Summarize and conclude and tell the judge again what you are asking for and why.
Please review Section III and VI with respect to court etiquette and guilty plea-sentencing.