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Criminal Law
Defending Yourself in Provincial Court, Fact Sheet 5: Sentencing
Will the judge decide my sentence right away?
If you plead guilty or the judge finds you guilty of an offence, then the judge will decide your sentence. The judge may sentence you immediately or postpone sentencing to another day. Sometimes there is a request for a pre-sentence report. This is a report that is prepared by probation officers setting out your background. You, the prosecutor or the judge can ask for a pre-sentence report.
Do I have a chance to speak before the judge decides my sentence?
Yes. The judge needs to know something about you so you will have a chance to speak to sentence. Be ready to on the day of your trial. You should prepare for the possibility that the judge will find you guilty. If there is a pre-sentence report, it will give the judge some of your background information. However, you may want to add something. Tell the judge anything about yourself and the offence that might lead the judge to give you a lighter sentence. Here is a list of things to consider when you speak to sentence.
Remember, when you speak to sentence, paint the best picture of yourself. Leave out irrelevant or damaging facts but always be absolutely honest with the judge. As a general rule, never remind the judge of the negative and always emphasize the positive. Be sure to say everything you want to at this point because you cannot interrupt the judge once sentencing begins.
1. Character information
General: General information may include your age, place of birth, marital status, dependants (children, dependent adults), medical disabilities, or your standing in the community. For example, do you do volunteer work or belong to a club or church?
Family circumstances: Your family circumstances may include the size of your family, where your family lives, whether you live with them, or your spouse's occupation.
Education: Your education may include the highest level of education (high school grade, college etc.) you completed, or any special skills or trade training.
Employment status: Your employment status may include your income, where you are employed and for how long. If unemployed, explain for how long and what have you done to look for work. If there has been a medical problem, you might wish to provide documentation of the problem for the judge (for example a doctor's letter).
Previous Criminal Record: You should not volunteer information about your criminal record. It is the Crown prosecutor's job to bring your criminal record to the court's attention. If the prosecutor brings up your record, you should to admit it if it is accurate. If there are inaccuracies in your record, then you should point them out to the Crown. If things cannot be resolved, then the Crown must prove the conviction(s) which you are disputing. The judge would then adjourn the proceedings in order to allow the Crown time to proof those conviction(s). If you acknowledge your record, you should usually say nothing unless you can qualify it. For example, maybe you committed the offence during a rough period in your life or there were special circumstances, like shoplifting a $2.00 item.
2. Circumstances of the Offence
The prosecutor will usually comment on why you committed the offence. In response you may wish to explain. For example, you should tell the judge if:
- you were having personal or financial problems.
- you played only a small part in the offence (if there were others involved).
- you were drunk or on drugs.check
- the behaviour of the victim was to blame in any way.
- you are sorry for committing the offence, and/or have tried to help or repay the victim.
- you co-operated with the police.
- you suffered any loss as a result of the offence (lost your job, etc.).
What type of sentence will I get?
The judge will look at many factors to decide your sentence. A victim of crime has the right to prepare a Victim Impact Statement which a court must take into consideration when determining the sentence to be imposed on the offender. You can get a copy of this statement from the Court at the time of sentencing.
Your sentence may include:
Fines: A fine is a sum of money you must pay. The judge may give a range of fines. The law adds 15% to the fine, called the Victim Fine Surcharge. This additional money goes to help victims of crime.
Suspended sentence and probation: The judge may suspend (put off) your sentence and instead put conditions on your behaviour. The conditions are set out in a probation order and can last up to two years. For example, conditions may require reporting regularly to a probation officer, staying away from alcohol or drugs, or entering a rehabilitation program. A judge may make a probation order in addition to fines or jail terms.
Conditional Sentence: A conditional sentence is a jail sentence for a certain term that you must serve someplace that the court designates such as your own home along with conditions that you must follow such as only leaving the house for work or medical appointments.
Release Without Penalty: For a provincial offence, the judge may choose to release you without any sort of punishment. This rarely happens.
Jail Term: The judge may order a jail term. The law requires a jail term for some offences.
Absolute and Conditional Discharge: A discharge means the judge finds you guilty of a criminal offence, but discharges you instead of entering a formal conviction against you. The effect of a discharge is you have been found guilty but are deemed not to have been convicted.
An absolute discharge means you do not have to serve any sentence. This takes effect immediately. Under a conditional discharge the accused is required to enter into a probation order for a specified period of time. The probation order can specify conditions the person must adhere to during the specified period. At the end of the probation period, the discharge will become absolute. If you do not meet the conditions, the judge may wipe out the conditional discharge and give you a different sentence.
Note: The judge can only discharge you if:
- it is in your best interests, and
- you are convicted of a lesser criminal offence (an offence that has no minimum penalty and a maximum penalty of less than 14 years in prison), and
- it is not contrary to the public interest.
Appeals
If you believe there was a serious error, you may appeal. You do not always have a right to appeal, in some cases you may have to seek permission to appeal from the judge (called leave to appeal). You can appeal your conviction, your sentence or both. If you wish to appeal, you need good legal reasons for it. You should see a lawyer for legal advice. This is a technical area of law with complex rules and documents to file. Even if you have good reasons for an appeal, your appeal may not go ahead if you don't follow the proper procedures. You must begin the process within thirty days of the judge's decision.
Public Legal Education and Information Service of New Brunswick is a non-profit organization. Its goal is to provide New Brunswickers with information on the law. PLEIS-NB receives funding and in-kind support for the Department of Justice Canada, the New Brunswick Law Foundation and the New Brunswick Department of Justice and Consumer Affairs.
We gratefully acknowledge the cooperation of the New Brunswick Legal Aid Services Commission in the production of this fact sheet. We also appreciate the comments and suggestions offered by members of the Law Society on New Brunswick, provincial court judges and the Public Prosecution Branch, Office of the Attorney General of New Brunswick. Finally, we wish to thank British Columbia Legal Services Society, Legal Information Society of Nova Scotia and Community Legal Information Association of Prince Edward Island, for providing us with copies of similar publications to use as a model.
This fact sheet does not contain a complete statement of the law in this area. Changes may occur over time. Anyone needing specific advice on her or his own legal position should consult a lawyer. PLEIS-NB will not be responsible for any loss or damage caused by reliance on any statement contained in this publication made negligently or otherwise.
Published by:
Published by:
Public Legal Education and
Information Service of New Brunswick
P.O, Box 6000
Fredericton, NB
E3B 5H1
Tel: 506-453-5369
Fax: 506-462-5193
http://www.legal-info-legale.nb.ca
Revised: March 2007
ISBN: 978-1-55396-937-2
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Disclaimer: Please note that our website contains general information about the law. This is not a complete statement of the law on particular topics. We try to update our publications often, but laws change frequently so it is important for you to check to make sure the information is up to date. The information in our publications is not a substitute for legal advice. To receive legal advice about your specific situation, you need to speak to a lawyer.
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