Occasionally in sexual assault cases both the Crown and defence can agree on a sentence they would like the judge to give. This involves both sides coming to an agreement in a resolution meeting and then making what is called a joint sentencing submission to a judge.
The judge decides whether to accept the submission or reject it and set a different sentence. In order to reject a submission, they must apply what is is known as the public interest test. They can only reject it if it is in the public interest. This blog examines an example in which this test was applied.
Reasons for a joint sentencing submission
A joint sentencing submission is seen as mutually beneficial for both sides. The defence and Crown can strike a deal in exchange for a guilty plea. The sentence will be more lenient if the accused pleads guilty than if they say they plead not guilty, and they are later convicted at trial.
It’s a win-win. The Crown secures a conviction without the need for a trial and the accused gets a lesser punishment.
Public interest test
The Court of Appeal of BC applied the public interest test in an appeal of in a case in which a man, referred to as CRH, pled guilty to five counts of sexual assault against children.
Counsel for the accused and the Crown made a joint sentencing submission on an appropriate sentence to the sentencing judge. They recommended: a 12-month probation, two years’ incarceration followed by three years’ probation, a lifetime restraining order, a lifetime Sex Offender Information Registration Act order, an order for the collection of DNA samples, and a firearms prohibition order.
The judge rejected the submission and instead imposed a sentence of his own. CRH appealed the sentence arguing that the judge failed to properly apply the public interest test.
Sentencing
The sentencing judge’s reasons for rejecting the joint submission was that it was “extraordinarily lenient”. The case R v Anthony-Cook established guidance for when a judge can reject a joint submission. A trial judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.
CRH and the Crown both argued the sentencing judge failed to apply the test set out in R v Anthony-Cook properly. The Court of Appeal found that the sentencing judge erred by failing to provide “cogent reasons for departing from the join submission”.
The Court of Appeal judges said: “In saying during submissions that the joint submission was ‘extraordinarily lenient’ I see the judge focussing only on the duration of actual incarceration proposed in the submission. It was incumbent upon him to see if there was anything other than the length of the sentence that engaged the public interest…”
The joint sentencing submission was imposed in place of the trial judge’s punishment.