When a judge in Ontario is considering a criminal sentence, they must consider mandatory sentencing restrictions. However, some factors can influence their decisions, such as aggravating and mitigating factors that can reduce or increase the sentence. This post will define these key phrases and examine what factors a judge will consider in criminal sentencing.
Mitigating Factors are any information or evidence that may lessen the crime’s severity, resulting in a lighter sentence. Lack of a criminal record can be a mitigating factor.
Aggravating Factors are evidence or information that increases the crime’s severity, such as a prior criminal record or association with a criminal gang. Aggravating Factors can result in a more severe sentence.
A Deeper Look At Aggravating Factors
According to the criminal code, “A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.”
Factors the judge can consider as aggravating are:
- Did the offender have a previous criminal record for the same crime?
- Did the crime involve a weapon?
- Was the offence motivated by bias, prejudice or hate based on race, sex, religion, age, sexual orientation or gender identity?
- Did the offender abuse the offender’s intimate partner or a member of the victim or the offender’s family?
- Was the victim under 18 years of age?
- Did the offender abuse a position of trust or authority in relation to the victim?
- Did the victim experience serious financial or physical harm or psychological injury?
- Was the offender part of a criminal organization or terrorist group?
Example An individual committed a crime where the victim was under 18, and the offender was someone in a position of power over them. These would be considered aggravating circumstances.
A Deeper Look At Mitigating Factors
Mitigating Factors can result in a lighter sentence. Circumstances the judge can consider as mitigating include:
- No Previous Criminal Record. A first-time offender is generally treated with more leniency.
- A conviction would punish you in other ways such as:
- Paying more/loss of car insurance
- Losing your driver’s licence
- Losing your job
- Being unable to travel
- Losing access to your children
- Have immigration consequences
- The judge can also look at sympathetic facts of the offence such as:
- The offender had an addiction or mental health issues at the time of the crime.
- The offender turned themselves in and cooperated when arrested.
- Your Behaviour since the crime – Showing remorse through actions is generally viewed favourably, such as:
- They returned or replaced any stolen or damaged property.
- They did volunteer work or gave money to a charity to repair the damage caused.
- They followed the release order if one was given.
- They took steps to address addiction or mental health issues, such as counselling or support groups.
- The judge can also consider other personal mitigating circumstances such as:
- Age – young offenders under the age of 18 have special considerations and more sentencing options
- Health – if you are unwell, a judge can take this into consideration.
- Cultural background, such as whether you have Indigenous heritage
- Work history and potential work opportunities
- If you have children and other dependents, and the difficulties your possible sentence could cause them
- If you are viewed as likely to address your issues through mental health therapy, addiction counselling, which can make you less likely to commit another crime
- A history of abuse or lack of family support
- If you pled guilty, which saves the expense of a trial
- If you had strict pre-trial bail conditions, especially house arrest, and whether you should be given extra credit as a result of those conditions
Example: An individual with no previous convictions but with a history of mental health issues robbed a convenience store. The lack of a criminal record and mental health history would be mitigating factors.
Making a Case For a Reduced Sentence
If you are looking for a reduced sentence, your lawyer is the best person to advocate for you. A judge is responsible for making sure the sentence fits the severity of the crime and any aggravating or mitigating circumstances of the accused. Your lawyer can help you understand these criminal sentencing considerations and can advise you on the best circumstances to present to a judge and how to present your case in the best light.
You should be prepared to speak to the judge about your personal circumstances and present mitigating factors that affect your case along with your plans for rehabilitation or treatment to correct issues that may have led to your crime.
If you are facing criminal charges or have questions about aggravating or mitigating factors in criminal sentencing, contact William Jaksa. William Jaksa is an experienced criminal defence lawyer who can help you understand the charges and take you through your options. Contact William Jaksa for a legal consultation today.