Just like any criminal lawyer can assert, if you are found guilty of any crime (other than first-degree murder), your sentence will depend on many factors such as the type of crime, circumstances and seriousness of the crime, and your personal circumstances. When deciding on a sentence, the judge will consider things like the seriousness of the crime, your age, if you have a criminal record and if you pleaded guilty or not guilty.
Lawyers when considering pros and cons of issues related to sentence call these issues mitigating and aggravating factors:
Mitigating circumstances
Mitigating circumstances are factors that will generally lead to a less harsh sentence being imposed. These factors can relate to the circumstances of the crime and to the accused’s personal circumstances. In a fraud case, if all the losses are recovered, this would be a mitigating circumstance. The youthful age of an accused or an accused with an unblemished criminal history might also be a mitigating circumstance.
Aggravating circumstances
These are factors that make the nature of the crime more serious or the individual committing the crime more deserving of a harsher sentence. For example having really high alcohol readings in an impaired case or breaking into a home that is occupied are aggravating circumstances. An offender with a terrible and lengthy criminal past will also be considered as an aggravating circumstance.
More examples of factors considered in weighing factors to determine an appropriate sentence:
- Circumstances of a crime and existence of special circumstances.
- The absence or presence of violent criminal behavior by the defendant.
- Mental or emotional disorder that led to committing the crime.
- Your age especially at the time of the crime.
- Whether you as the defendant were an accomplice to such a crime and if your participation was relatively minor.
- Whether or not you were influenced by others to commit the crime.
- Whether the conduct occurred as a result of mental defect, disease or the effects of intoxication
- Another thing the judge looks into is whether your actions can be believed to be reasonably out of a moral justification.
- Past history of good character.
- Payment of restitution.
- Support in the community and chances of rehabilitation.
Sentencing is not an exact science in Canada. It involves a lot of judicial discretion and weighing of personal circumstances of the offender. The government has been taking away that discretion by imposing mandatory minimum sentences for many offences. These measures are generally well received by the public as it is seen as “getting tough on crime”. Unfortunately, taking away judicial discretion makes it impossible for judges to give an offender that deserves leniency an appropriate sentence.