Sentencing in the context of a joint submission

In Canada the sentencing of an offender always lies in the judge's hands. Joint submissions as to sentence, while afforded much weight, do not bind the Court and the Court must independently conclude that the joint submission is appropriate.

The recent Court Martial decision in R. v. Tully-Hébert, 2010 CM 3013
sets this principle out well. Note how the Court considers the requirements of sentencing in detail before agreeing to the joint submission. The Court holds:

[6]               In this case, the prosecution and defence counsel have presented a joint submission on sentencing. They recommended that the Court sentence you to 30 days' imprisonment and a $2000 fine.

[7]               The Court Martial is not bound by this recommendation. However, it is well established in case law that there must be compelling reasons for the Court to disregard it. It is also generally recognized that the Court should accept the recommendation unless doing so would be contrary to the public interest or bring the administration of justice into disrepute.

[8]               The fundamental purpose of sentencing in a Court Martial is to ensure respect for the law and maintenance of discipline by imposing sanctions that have one or more of the following objectives:

            to protect the public, which includes the Canadian Forces;

            to denounce unlawful conduct;

            to deter the offender and other persons from committing the same offences;

            to separate offenders from society, where necessary;

            to rehabilitate offenders; and

            to reform the offender.

[9]               When imposing sentences, a military court must also take into consideration the following principles:

a sentence must be proportionate to the gravity of the offence, and to the responsibility and previous character of the offender;

a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances—in short, the court should impose a sentence of imprisonment or detention only as a last resort; and,

lastly, all sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.