After the serpent beguiled me : Entrapment and sentencing in Australia and Canada

Undercover investigations frequently result in allegations of entrapment by the accused. These allegations can give rise to judicial remedies designed to censure the misconduct of law enforcement, to acknowledge the accused's diminished culpability, or to do both. The authors survey the Australian and Canadian jurisprudence, revealing an important divergence that has emerged in the use of sentencing as a judicial response to entrapment. In both Canada and Australia, a judge may order the exclusion of evidence or a stay of proceedings where the accused was induced to commit a crime that he or she would not have contemplated but for the inducement by investigators. In Australia, however, courts also have the discretion to mitigate an offender's sentence in instances where police conduct may have fallen short of entrapment but nevertheless contributed to or escalated the offender's illegal conduct. Canadian judges do not enjoy this discretion, even where the conduct of investigators raises questions about the offender's culpability. The authors offer a set of principles to guide entrapment sentencing, beginning with the principle that an offender who is ready, willing and able to commit the offence should not ordinarily be entitled to a reduction in sentence, even where there may have been improper conduct by investigators. Where investigators have used entrapment-type practices that escalated an offender's criminal behaviour, courts should only impose lighter sentences where those practices raise questions about the extent of the offender's culpahility. If the courts are not seeking to recognize reduced culpability, but to censure the particular law enforcement practices, they should exclude the evidence obtained from those practices.