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Research – Sentencing

Introduction

Sentencing is the process of imposing legal sanctions on a person found guilty of a crime. In Canada, sentencing options range from absolute discharge (no punishment served) to imprisonment for life. Sentencing deliberations must consider the principles and purposes of sentencing outlined in the criminal code, the seriousness of the offence, laws which set sentencing guidelines for judges, rules that limit the length of prison sentences, and victim impact statements. Furthermore, sentencing options for young offenders are different than those for adults and any prison sentences may be shortened due to parole.

Principles and Purposes of Sentencing

The Criminal Code of Canada was amended in 1996 to include a set of principles intended to guide judges in handing down fair sentences in order to punish an offender adequately, but also fairly. These amendments came following years of complaints about the sentences offenders were receiving, as many felt they were very inconsistent and simply a reflection of the biases of individual judges.

Section 718 of the Criminal Code now states that the fundamental purposes and principles of sentencing are: 1) that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender and 2) that all reasonable available sanctions other than incarceration must be first considered, especially in the case of aboriginal people. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:

  1. Denouncing unlawful conduct.
  2. Deterring offenders and the public from committing crimes.
  3. Separating offenders (by incapacitation) when necessary from the rest of society.
  4. Assisting the rehabilitation of offenders.
  5. Providing reparations for harm done to victims or the rest of the community.
  6. Promoting a sense of responsibility in offenders and acknowledging the harm they caused the victims and community.

Judges are free to choose which purposes they will apply, however, and some experts argue that sentences are still very inconsistent. Some types of cases require that particular objectives be given primary consideration. For example, section 718.01 states that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Each purpose of sentencing is discussed in detail below.

Denunciation

Denouncing crime involves marking criminal behaviour as blameworthy and unacceptable by community standards. The goal of denunciation is to educate people that specific behaviours will not be tolerated in Canada and that sentences are meant to express the public’s hatred for the crime. The difficulty with this purpose is that not all of society agrees on what conduct is unacceptable, as in the case of marijuana use, for example.

Deterrence

Deterrence is the principle that is most widely used; it encompasses efforts both to discourage the initial commission of a crime as well as to discourage repeat offences by convicts. There are two types of deterrence, specific (individual) and general deterrence. Specific deterrence discourages an offender from reoffending due to the fact that they have been punished for their first offence. The goal is to “teach a lesson” to the offender so they will not reoffend.

General deterrence, on the other hand, is the threat of punishment that discourages the populace from committing potential crimes. The belief is that the general population, observing that offenders are punished for a crime, will not want to commit that crime in fear of the consequences. Cautionary examples are made out of criminals and their punishments, and it is the fear of punishment that deters a like-minded person from committing the same crime in the future.

Incapacitation

Incapacitation renders an offender incapable of offending for a period of time. This purpose of sentencing is usually used in the name of public protection, as the incarcerated offender is separated from the community.

Rehabilitation

Rehabilitation attempts to modify the offender’s attitudes and behaviours, provide education and skills, and provide assistance to overcome substance abuse or anger problems. Rehabilitation is an important purpose of sentencing because it helps the offender to reintegrate into society as a contributing member of the community rather than returning to crime.

Reparation

The goal of reparation is to “repair” the damage that the offender has caused victims or the community. One method of achieving this is through restitution in which the offender restores or replaces stolen property or pays for monetary damages caused by bodily harm. Compensation is another way in which a victim can receive reparation and involves the offender paying money to the victims for having to endure the crime committed against them (this must be applied for through the Criminal Injuries Compensation Board). The limitation of reparation is that damages resulting in bodily injury or psychological suffering are often not repairable; the offender cannot “repair” the physical or emotional damage and loss.

Responsibility

The final goal of sentencing is to promote a sense of responsibility in the offender; to have the offender realize they are accountable for their criminal actions and to recognize the harm they have caused. Responsibility is related to both the rehabilitation and reparation purposes. If offenders feel a sense of responsibility, it is believed that their ability to be rehabilitated will increase and they will be more agreeable to making restitution.

Classification of Offences

Offences are categorized into three different types, each with specific sentence guidelines. These offences include:

  1. Summary offences are the least serious offences, have the most lenient sentences, and are tried by a judge only. These cases normally proceed right away and have a maximum jail sentence of 6 months and a maximum fine of $2000. This includes such offences as causing a disturbance in a public place or soliciting a prostitute.
  2. Indictable offences are the most serious offences, are usually tried by a judge and a jury, but can be tried by a judge alone. These cases are preceded by a formal accusation naming specific persons and crimes. Murder and assault are indictable offenses.
  3. Hybrid offences can be tried as either summary or indictable. The Crown decides which type of offence the crime will be tried as and can change this as long as it is done before the trial actually begins. Less serious hybrid offences are usually tried summarily but carry a longer maximum sentence (18 months instead of 6 months). More serious hybrid offences are usually indicted; however the accused is allowed to choose whether to have the trial the provincial court or Supreme Court level.

Finding an Appropriate Sentence

One of the difficulties in the sentencing process is finding the most suitable sentence appropriate to the nature of the crime and the offender. The factors usually considered in sentencing are:

  • the degree of premeditation and planning involved;
  • the circumstances surrounding the offence: the amount of violence, weapons used, and the specific involvement of the offender;
  • the maximum sentence set out in the Criminal Code;
  • the attitude of the offender at the time of the crime;
  • previous criminal records;
  • the age, lifestyle, and personality of the offender;
  • recommendations of the trial judge and pre-sentence report;
  • incidence of crime in the area; and
  • sentences usually imposed for similar offences.

These factors can be considered aggravating or mitigating factors depending on the context of each case.

Victim Impact Statements

One consideration that a judge will take into account when determining an appropriate sentence is the impact that the crime had on the victim. Victims are able to have their say to the court through the victim impact statement. Victim statements can be given orally or in writing, and describe the physical, emotional, social, psychological, and financial harms that were caused by the offender. In Canada, the court is obligated under the Criminal Code to consider victim impact statements during the sentencing process.

Sentencing Options

Sentences range from the mildest of no conviction to the harshest of life in prison. All except discharge impose some type of disturbance to the offender’s life. Canadian courts have these sentencing options:

  1. Discharge: Absolute or Conditional

    A discharge sentence is the most lenient that a convicted offender can be given. When an offender is sentenced to a discharge they are found guilty of the crime but will not have a criminal record. A discharge may be given to any offender as long as the maximum punishment for the crime is under 14 years. The sentence also must be in the best interest of the accused while still protecting society. Anyone who is a danger to society, therefore, cannot be sentenced to a discharge.

    Discharge sentences may be absolute or conditional. An absolute discharge means that the offender is seen as having never been convicted of the offence. In the eyes of the court, the crime never happened. A conditional discharge requires a probation period before the offender can be totally discharged. Probation conditions usually involve treatment programs or school attendance. If an offender breaches the terms of the probation, they may be brought back to court and given a harsher sentence.

  2. Suspended Sentence

    A suspended sentence involves the formal conviction of a crime, but does not require the offender to actually serve their sentence. A suspended sentence may be unconditional, whereby the conviction goes on the public record but the offender is discharged without stipulation, or conditional, whereby the judge declares a suspended sentence that will be held as long as the offender exhibits good behaviour. For example, if a person was convicted of shoplifting for the first time, the judge could impose thirty days of incarceration as a penalty and then suspend the imprisonment on the condition that the defendant not commits any crimes during the next year. Once the year passes without incident, the penalty is discharged. However, if the defendant does commit another crime, the judge is entitled to revoke the suspension and have the defendant serve the thirty days in jail.

  3. Fine

    A fine is one of the most common sentences handed down by the courts for summary offences. A fine requires the offender to pay a specified amount of money to the court. This money does not go to the victim but is considered a form of taxation to the provincial government. A fine may be added to a sentence of probation or imprisonment, as long as the offender can afford it. There are some restrictions to imposing a fine on top of a sentence of imprisonment.

    In imposing a fine, the judge must determine an amount appropriate to the crime, but not excessive and within the means of the offender. In addition, the court must specify how it should be paid and the time in which it must be paid. If an offender does not pay a fine under the specified time, they are taken back into custody and sentenced to a prison term.

  4. Probation

    Probation is a term of conditions that are supposed to restrict the offender, or encourage their rehabilitation. The court may prohibit an offender from engaging in certain activities, associating with certain people, or possessing a weapon. A court may only order probation in addition to another sentence. While on probation an offender must check in with a probation officer, who is responsible for ensuring that all requirements of the probation have been met. If an offender does not follow their probation, or 'breaches' probation, they can be taken back to the court and re-sentenced.

    The mandatory conditions of a probation include a) keep the peace and be of ‘good’ behaviour b) appear before the court when required to do so c) notify the court or probation officer of changes to name, address or job

    In addition to the mandatory conditions, the court has the option to demand extra conditions including a) report to the probation officer when required b) remain within the jurisdiction c) abstain from consuming alcohol or drugs d) abstain from owning, possessing or carrying a weapon e) provide support or care to dependents f) perform up to 240 hours of community service g) participate wilfully in a treatment program h)any other conditions the court reasonably feels will protect society and help reintegrate the offender to the community

  5. Order For Restitution

    Restitution requires an offender to repay victims for material loss or damage caused by the offence. This does not include harm caused to the victim’s body or mental health. An offender may be ordered to pay restitution in addition to other sentences as well. There are three circumstances in which offenders must pay the victims: a) repay them for their loss of property, b) if the victim had bodily harm resulting in a loss of income and c) if the victim lived with the offender and they had expenses due to moving out of the home.

  6. Imprisonment

    Imprisonment is supposed to be the last sentencing option considered. Imprisonment requires an offender to serve their sentence in a penitentiary for a certain amount of time. When in prison, the offender is physically separated from the rest of society, and therefore, cannot cause direct harm to the general public. The length of the prison sentence depends upon the crime committed and the circumstances surrounding the crime.

    Factors that influence prison terms are based in criminal laws or the judge’s interpretation of the offender and the crime. Sentences of two or more years are served in a federal penitentiary, while sentences of less than two years are served in a provincial prison.

    When deciding on the length of a sentence, judges must follow maximum and minimum standards set out in the criminal code. For example, kidnapping has a minimum sentence of 5 years in prison for the first offence and first degree murder has a maximum sentence of life imprisonment.

    Some prison sentences do not follow the usual rules of incarceration. Conditional sentences may be applied when an offender is sentenced to less than two years in prison. For an offender to be given a conditional sentence, they must not be a danger to the community. Conditional sentences are not served in jail but do involve restrictions; a popular example would be ‘house arrest’.

    An intermittent sentence may be applied when the sentence is less than 90 days in prison and the court decides that it can be served on non-consecutive days. This usually means serving the prison sentence on weekends while living at home during the week. This type of sentence is given mainly to offenders who are not violent and have steady jobs.

Length of Imprisonment

There are many elements that influence the length of prison sentences:

  1. Aggravating vs. Mitigating Factors

    Aggravating and mitigating factors are outlines in the Criminal Code for judges to consider. Aggravating factors increase the severity of the sentence:

    • if the offence was motivated by any kind of bias, prejudice, or hate based on race, gender, etc. (example: assaulting someone for being homosexual).
    • the offender abused a position of trust or authority in relation to the victim (example: a teacher sexually assaults one of their students).
    • the offence was committed in association with a criminal organization (example: murder committed by someone contracted by a gang).
    • The offender has a precious criminal record.

    Mitigating factors lessen the severity of the sentence and include first offence, young age, and non-violent offence.

  2. Determinate vs. Indeterminate Sentences

    Determinate sentences are fixed or limited to an established amount of time. Most prison sentences are determinate because the judge usually orders a specific length. Indeterminate sentences detain the offender for an indefinite amount of time. This is an option when someone is declared a dangerous offender. The offender remains in prison for as long as is seen as required because they are a threat to the safety of society.

  3. Concurrent vs. Consecutive Sentences

    Sometimes offenders are convicted of more than one offence at a time and, therefore, have to serve more than one sentence. When this happens, there are two options, concurrent or consecutive sentences. Concurrent sentences have been imposed for separate crimes but the sentences are served at the same time. This means the time served in prison will not be longer than the longest sentence imposed (if an offender received a sentence of 2 years for one crime and 3 years for another, the offender would serve a total of 3 years in prison).

    Consecutive sentences are served one after another, not at the same time. Using the scenario above, the two sentences would then be added together and the offender would serve a total of 5 years in prison. Consecutive sentences are rarely used; concurrent sentences are the usual way that a judge will apply more than one sentence.

  4. Parole

    Whatever the length of his or her sentence, there is a possibility that an offender could be released early on parole. The National Parole Board determines whether an offender receive parole. For offences in which the sentences are less than two years, offenders are eligible for parole after they have served one-third of the sentence. For offenders who are serving more than two years in prison, the eligibility for parole is either one half of the sentence or ten years, whichever is less.

    There are four basic types of parole:

    • temporary absence – released for a period between 48 and 72 hours and the offender may be escorted or unescorted depending on what the NPB deems is appropriate.
    • day parole (eligible after 6 months) – offenders usually have to stay in a halfway house.
    • full parole – conditional release of the offender as outlined above.
    • statutory release (with mandatory supervision) – automatic release after 2/3 of sentence is served, unless they are deemed a dangerous offender or are serving a sentence of life imprisonment in which case they may not be eligible for release at that time.

Sentencing Circles

At the beginning of this article, it was stated that “that all reasonable available sanctions other than incarceration must be first considered, especially in the case of aboriginal people.”  Special attention here is given to aboriginal people because recently it has come to light that they make up a disproportionate percentage of the prison population. In fact, across Canada aboriginals accounted for 22% of incarcerated offenders, while only representing 3% of the Canadian population.

To address the issue of the disproportionate numbers of aboriginal offenders in prison, the criminal justice system has recently implemented the use of sentencing circles. Sentencing circles have historic roots in the traditional “healing circles” used by aboriginal peoples to address wrong-doings, but follow parameters set out in the Criminal Code, usually taking the place of criminal court hearings once guilt has been established. A typical sentencing circle usually consists of the court inviting interested members of the community, along with the judge, prosecutor, defence counsel, social service providers, community elders, the offender, and the victim and their family to meet and discuss the crime, factors concerning its commission, sentencing options, and rehabilitation and reintegration options for the offender. Sentencing circles rarely hear cases that carry a minimum sentence of over 2 years imprisonment. Occasionally, some communities allow sexual assault cases to be heard by a circle, but they almost never hear crimes as severe as murder.

The sentences that a circle usually imposes are restorative community sentences that involve some type of restitution to the victim, community service, and/or treatment services; sentencing circles rarely recommend a term of imprisonment. It should be noted that while judges do take the recommendations of the sentencing circle seriously, they are not bound to accept them and may give a different sentence than the one suggested by a circle.

Young Offenders

The Youth Criminal Justice Act sets out sentencing rules specific to young offenders.  The main principles surrounding the sentencing of young offenders are that the justice system must protect the public by (i) holding young person’s accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young person’s to programs or agencies in the community to address the circumstances underlying their offending behaviour.

Sentencing for young offenders differs from that for adults in several ways in that it is based on the principle of diminished moral blameworthiness or culpability, and emphasizes rehabilitation and reintegration where adult sentences focus on deterrence and denunciation. Furthermore young offenders often receive a shorter prison sentence then an adult would for the same offence. This is because a young person’s perception of time is different than that of adults. For example, a 1 year sentence for a young offender would have the same effect as a 5 year sentence for an adult. Young offenders are most often given sentences of community service or restitution to the victim. This is especially the case when the young person has committed a non-violent offence.

Conclusion

Sentencing is an important part of the justice system for both the victim and the offender. For an offender, the sentence they receive can affect their lives greatly by placing restrictions on the activities they can do, and/or separating them from the rest of society all together. For the victim, the sentence the offender receives will also affect their lives in that they may receive restitution for damages the offender caused or feel safer if the offender is incarcerated. The sentencing process attempts to find a suitable punishment that will deter the offender from committing future crimes, while assuring the community and the victim that criminal offences are not, and will not be, tolerated.

Sources

Andrew Ashworth. 2005. Sentencing and Criminal Justice. 4th Ed. Cambridge, UK; New York: Cambridge University Press.

Scott, Charles L. 2009. Handbook of Correctional Mental Health. Arlington: American Psychiatric Publishing.

Victims INFO. 2010. Types of Offences. Found online at http://www.victimsinfo.ca/en/investigation-to-charge/charges/types-of-offences on August 10th, 2010

Saunders, R.P. and McMunagle, J. 2002.Criminal Law In Context: An Introduction to the Theoretical, Social and Legal Contexts. Thompson Canada Ltd: Toronto.

Erez, Edna and Roberts, Julian. 2007. Victims of Crime, 3rd Ed. Victim Participation in the Criminal Justice System. Sage Publications: London.

Perreault, Samuel; Statistics Canada. The incarceration of Aboriginal people in adult conrrectional services. Juristat. July 2009 Vol. 29, no. 3. Accessed online on August 17th 2010 at http://www.statcan.gc.ca/pub/85-002-x/2009003/article/10903-eng.pdf

Vago, Steven and Nelson, Adie. 2008. Law and Society 2nd Ed. Pearson: Toronto.

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