We’re going to talk today a little bit about what happens at a sentencing hearing for sexual assault matter. So, let’s assume you’ve been convicted or pled guilty to sexual assault it’s a pretty serious sexual assault. It’s date rape involving sexual intercourse. So, what’s going to happen? So, the judge is going to order what’s called a pre-sentence report, which means you’re going to meet with a probation officer and that probation officer is going to review with you, meet with you interview you and go through your basically life history from birth. Till now, all your background is going to be open for examination and there’s going to be a written report.
That person the probation officer is also going to interview friends, employers, family members as well. And that’s going to be all reflected in the report, your kind of background, so the more positive it is, the better. So, as a lawyer, I’m going to be telling you what to expect there and we want to make sure it’s a good report and you have to go in with the right attitude. That’s the first and foremost and God help you if you don’t, because that report is going to be disaster and you’re going to get a longer sentence because your background is going to be no good. So, let’s assume you’re a person good prior background you never got in trouble in life. You’re saying, 25 years old, when unfortunately, the sexual assault but everything else is going to come up nice in the report as you’d be never been in trouble before. So that’s positive.
That’s going to at least lessen your sentence a little bit at least even more towards the lower end of the range. So now I get that report a couple of days before the sentencing hearing, which is about six weeks after, eight weeks after the judge orders the report. And I review it, make sure there’s no errors if there are, point them out to the judge and correct them. I now do my submissions when I come to court. I provide the judge with a case brief of the range of sentence for sexual assault involving sexual intercourse on a date rape situation in Canada. I can tell you this, that range currently, although it tends to be rising over time, is two to three years in jail. So that’s what you’re likely facing. It’s very difficult to get 18 months anymore, although there’s outlier cases but that’s what you’re facing. So my role as an advocate for you is to try and get you to the lower end of that range. Of course, the crowns probably can be advocating for three years if this is after trial. The crown may not agree with me on sentence but that’s typical after trial. I’m going to be doing very careful thought-out submissions and I prepare in advance is going to go on for an hour or two, up to two hours where I outlined your background all your positive antecedes that you’re a good person prior, no criminal record, etc.
Reviewing the report, going through the case law which applies, and ultimately advocating for, say a two-year jail term which I think is appropriate for you. It’s based on the offence in the offender. The offence is not good, obviously is aggravated the offender, you’re a good person no prior record. When you’re 25 you’re not, your reasonably youthful. You deserve two years. So I finished my submissions and they with the judge, they’re done verbally in court orally as we call them. The crown will do their submissions, they advocate they have their own case brief maybe the cases are the same as mine, a couple of different ones. We both do our own careful research.
The judge, the crown makes submissions and then the judge ultimately makes the decision about what sentence is appropriate for you. Now that’s your basic sentencing hearing for sexual assault. Now, the one other mentioned, I want to mention, if you pled guilty, but let’s say this you admit all the facts except for one aggravating fact that the complainant said you know, for example, that let’s say you admitted everything, sexual assault but sexual intercourse, so you admitted oral sex, touching, etc. But we’re saying that didn’t happen? Well, we’re going to have what’s called a Gardiner Hearing, which is essentially a trial at a sentencing hearing, where the complainant testifies about that issue, when all the issues, we admit everything, you would testify the judge would have to make a decision about whether that fact has been proven beyond a reasonable doubt, as well that’s called a Gardiner Hearing. After the judge makes a decision on that fact, we then proceed to the submissions on sentence. So that’s sexual assault sentencing hearings, one on one in a nutshell.
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