In Canada, the term “rape” is not used. All assaults of a sexual nature are grouped into the offence of sexual assault. The sentence for sexual assault will vary depending on the unique circumsances of the offence and the offender. However, case law indicates that the starting position for sentencing is 3 years of jail.
Factors That Affect Sentencing
Any plea bargaining or co-operation with the public prosecutor's office
Indicates whether the defendant has reached an agreement with the prosecution to enter a guilty plea in exchange for a reduced sentence, or whether the defendant has provided information or assistance to the authorities during the investigation or prosecution of the case.
Mitigating circumstances, such as duress or necessity
Refers to circumstances that may reduce the responsibility or moral culpability of the accused, such as acting under duress or coercion, or because it was necessary to prevent greater harm.
Any mitigating or aggravating circumstances that may be presented by the prosecution or the defence.
Refers to evidence or arguments presented by both the prosecution and the defence that may affect the sentence, such as evidence of past bad acts committed by the accused, or mitigating factors such as mental illness or addiction.
Military or civil service of the accused
Refers to the defendant’s military service, public service, or other achievements that may be relevant to the sentence.
Relevant legislation, policy and case law of the jurisdiction
Indicates the specific legislation, policies and case law in the jurisdiction where the offence has been committed that might affect the sentence, for example, mandatory minimums, sentencing guidelines or prevailing community attitudes towards punishment.
Defendant's co-operation with authorities
The extent to which the defendant has cooperated with law enforcement and other authorities in the investigation and prosecution of his own case may be a factor in sentencing. Cooperation may demonstrate an acceptance of responsibility and may be considered by the court as a mitigating factor.
Age and physical/emotional health of the accused
Age and any physical or mental health problems may also play a role in a court deciding on a suitable sentence.
Role of the defendant in the offence
The defendant’s role in the commission of the offence may affect their sentence. A principal or a conspirator may receive a more severe sentence than a collaborator or someone who played a lesser role.
Financial resources and ability of the defendant to pay fines
The financial resources and ability of the accused to pay fines or other financial penalties may be considered in determining an appropriate sentence. The court may consider the ability of the accused to pay compensation to the victims and/or fines to the State.
Deter the accused and others
Sentencing may be influenced by the aim to deter the defendant and others from committing similar offences in the future. A severe sentence may act as a deterrent, while a more lenient sentence may not have the same effect.
Public security and safety
Public safety and protection is a key consideration in sentencing. A defendant who poses a significant threat to public safety may be sentenced more severely to ensure he cannot commit further offences.
Ability of the accused to rehabilitate
The potential of the defendant to be rehabilitated, or the ability to be successfully treated or trained so as not to reoffend, may be taken into account in determining an appropriate sentence. A defendant who appears to have a high probability of being successfully rehabilitated may be sentenced more leniently.
Sentencing Guidelines and mandatory minimums
A court is required to follow sentencing guidelines and mandatory minimums established by state or federal law, but has some discretion to do so.
Statutory aggravating or mitigating circumstances
Statutory aggravators are elements of the crime or the defendant’s conduct that increase the penalty, while statutory mitigators are elements that decrease the penalty.
Community and judicial approach to sentencing
Public opinion and the views of judges or sentencers may influence the perception of the harshness of a given sentence.
Defendant co-operating with Authorities
The extent to which the defendant has assisted the police or other authorities in investigating or prosecuting the offence may be considered as a sentencing factor.
Age and physical/emotional state of the accused
Age, mental and physical health of an accused person may be relevant in sentencing, as these factors may affect his or her ability to understand consequences of his or her actions and his or her capacity for rehabilitation.
The role of the accused in the offence
The defendant’s role in committing the offence may also be considered, with those who played a leading or active role often receiving harsher sentences.
The nature and circumstances of the offence committed
This factor relates to the specific details and events surrounding the offence, including method and aggravating or mitigating circumstances.
Previous criminal record of the defendant
This factor takes into account the defendant’s previous criminal record, including any previous convictions, and the defendant’s history of previous sentences.
Character and Background of the Defendant
This factor considers the defendant’s general background, including education, employment, family situation, and drug/alcohol history.
Remorse or lack thereof of the defendant
This factor considers the defendant’s expression of remorse for the crime, including apologies or expressions of regret.
Victim(s) Impact of the crime
This factor assesses the physical, emotional and financial damage suffered by the victim(s) as a result of the crime and how the crime has affected their lives.
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Been Arrested or Charged with A Criminal Offence? Get Help Now!
If you have been arrested or need assistance with a criminal matter, contact me to discuss your case.
Jeffrey I Reisman
Criminal Defence Lawyer
1000 Finch Ave. West, Suite 705 A
Toronto, ON M3J 2V5
Phone:Â 647-370-4282
Email:Â jeffreyireisman@gmail.com
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