Friday, August 4, 2017

Standards for appellate review of sentences

The Court Martial Appeal Court of Canada has handed down its ruling in R. v. Hoekstra, 2017 CMAC 5, an appeal by the government on the ground that the sentence was too lenient. The unanimous decision, written by Justice Patrick Gleeson, usefully articulates the governing principles -- and increases the sentence from 60 days to 14 months' confinement, while staying the unserved portion. Excerpt:
[26] In this case, the sentencing reasons are devoid of any consideration of what might be an appropriate punishment or why the sentencing precedents placed before the Military Judge were neither applicable nor helpful in the sentencing process. In addressing the parity principle, the Military Judge did not adopt a different range or reject a range previously considered in the jurisprudence. Precedents were not considered. The absence of any reference to relevant precedents by the Military Judge, together with the substantial divergence from comparable sentences, invites a probing consideration of the fitness of the sentence. It opens the door to a potential finding that the sentence is demonstrably unfit.

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