Property Offences

Striking a Balance: Aggravating Factors and the Parity Principle

Written on behalf of Barrison Law
View of a jewelry display through a window, representing a jewelry store robbery and sentencing

When it comes to sentencing, judges must weigh various factors to determine the appropriate punishment for a convicted individual. Among the factors that come under scrutiny are aggravating factors that can elevate the severity of the sentence. However, Canadian criminal law also utilizes the parity principle to maintain the equilibrium of sentences among similar offenders in similar circumstances.

In a recent decision, an accused appealed his sentence to the Court of Appeal for Ontario, asking the Court to reduce his nine-year sentence based on two grounds of appeal, including the principle of parity.

Accused sentenced to nine years imprisonment following guilty plea

In R. v. Sithravel, the accused (the “appellant”) pled guilty to one count of robbery and was subsequently sentenced to nine years imprisonment. The offence in question was “a carefully planned, violent robbery” which took place at a jewellery store and involved the use of an imitation firearm. Although the appellant was not a participant in the robbery, he participated in planning the offence and was “to be the fence for the proceeds of the robbery.”

The appellant appealed the nine-year sentence and argued the sentence should be reduced to a maximum of eight years on the basis of the parity principle. In Canadian criminal law, the principle of parity explains that a sentence imposed on an offender for an offence should be similar to that of similar offences committed by similar offenders in similar circumstances.

Sentencing judge considers accused absconding as aggravating factor

During the time between the guilty plea and the sentencing hearing date, the appellant absconded, and sentencing proceeded “in absentia.” However, the appellant’s two grounds of appeal were linked to his absconding. In particular, the appellant appealed the sentence based on the treatment of his absconding as a factor in sentencing, as his disappearance resulted in the sentencing judge not having “the benefit of defence submissions.”

The Court of Appeal first addressed the issue of whether the sentencing judge erred in principle by treating the appellant’s absconding as a factor in sentencing. The Court noted that the fact that the appellant absconded was nuanced. The Court quoted a portion of the sentencing judge’s decision, which explained that absconding was not an aggravating factor, but rather, it diminished “taking of responsibility from the guilty plea, negatively impacted the appellant’s prospects for rehabilitation, and increased the weight to be given to specific deterrence.”

Lack of factual clarity can “generate errors” in sentencing and appellate review

During the appeal, the Court found counsel dealt with the facts surrounding the guilty plea in an ” unsatisfactory manner.” The Court noted that the previous hearing transcript indicated a discussion occurred between counsel regarding the fact that the defence would qualify some of the facts the Crown sought to have admitted. However, it was also evidence that many of these facts were not discussed with the Crown before court. Although the Court noted that an accused who is pleading guilty is not required to admit all the facts in support of the guilty plea, details regarding qualifications should be addressed before the plea is entered into, “both as a matter of clarity of the facts admitted in support of a guilty plea and efficient use of court time.”

Facts that are admitted are critical in sentencing, as the accused gives up their right to require the Crown to prove such facts and aggravating factors. As in this case, a lack of factual clarity can “generate errors in relation to factors relied on as aggravating or mitigating and create difficulties in ascertaining the factual record for appellate review.”

Court of Appeal reduces sentence based on parity principle

The Court turned to the appellant’s concern that the sentencing judge’s determination that the appellant was the “mastermind” behind the robbery was a “significant aggravating factor.”

The Court highlighted that the transcript from the guilty plea indicated that the appellant never admitted to being the mastermind behind the robbery. As such, the sentencing judge erred in principle by considering the mastermind allegation as an aggravating factor in sentencing.

The appellant’s two co-accused had been sentenced to eight and eight and a half years, respectively. As such, the Crown sought an eight-year sentence for the appellant in accordance with the principle of parity. However, the sentencing judge associated a higher degree of culpability with being a “mastermind” and absconding, resulting in a higher sentence. On appeal, the Court determined that a sentence of eight years and three months was appropriate in accordance with the parity principle while considering his absconding.

Contact Barrison Law for Exceptional Representation Defending Against Robbery Charges

The knowledgeable criminal defence lawyers at Barrison Law provide clients with practical legal advice on their options and work to develop strategic defences against a variety of charges, including robbery, firearms offences, and other property crimes. Located across the street from the Durham Consolidated Courthouse, our firm serves clients across the Durham Region, including Pickering, Ajax and Whitby. To schedule a free initial consultation with one of our criminal defence lawyers about your case, contact us online or call our office at 905-404-1947.