Sentencing Procedure PDF

Sentencing  Sentencing and Goals  Sentence: punishment imposed on a person convicted of committing a crime  Goals: protection of the public, retribution, deterrence, rehabilitation, restitution, and denunciation  Protection of the person, their property, and their righ...

Sentencing  Sentencing and Goals  Sentence: punishment imposed on a person convicted of committing a crime  Goals: protection of the public, retribution, deterrence, rehabilitation, restitution, and denunciation  Protection of the person, their property, and their rights and freedoms. Remember, when a person commits an offence, that individual harms not only the victim but everyone in society.  Sentencing and Goals  Retribution: punishment to avenge a crime, ensuring that offenders suffer the consequences of their actions. (eye for an eye)  Specific deterrence: punishment to discourage criminals from reoffending  General deterrence: punishment to discourage people in general from offending  Rehabilitation  Rehabilitation: punishment combined with treatment and training to help offenders function in society.  Educational programs, medical and psychiatric treatment are combined with punishment.  Example: going to prison for theft because of unemployment. Would prison alone help? Prison employment program?  Show Me the Money  Restitution: punishment that requires the offender to pay the victim or society back for the harm or loss suffered.  Community service for society, and actual payment for damages for individual  Denunciation  Denunciation: punishment designed to show condemnation of the offender’s conduct.  A message that the offender’s conduct has violated society’s basic code of values and that such conduct will be punished.  Judges weigh the facts of each case to decide which goals are most important to achieve. (like denunciation, protecting the public, deterring the individual, etc.)  Summary vs. Indictable  After a defendant is convicted, sentencing process begins.  For summary/minor offences, it takes place immediately.  For indictable/serious offences, sentencing is more complex and is often delayed to allow time for the judge to make an informed decision.  Three perspectives must be considered in the sentencing process: the offender, the victim, and society  Pre-sentence Report  Pre-sentence report: background information about the convicted offender, prepared for the judge prior to sentencing.  Prepared by a probation officer, includes offender’s background, family, education, employment history, physical and mental health, social activities, potential ability, motivation, and friends.  Psychiatric assessment: a report describing the mental history of the offender.  Describes the mental history of the offender and may include results from psychiatric tests. Victim Impact Statement  S. 722 of the Code requires the court to consider any statement prepared by the victim of an offence.  Victim impact statement: a statement prepared by a crime victim or the victim’s family describing the harm done or the loss suffered as a result of the offence.  The Crown If the accused is found guilty, the Crown has the right to recommend an appropriate sentence. Crown can introduce the offender’s previous criminal record if they want to argue for a substantial prison term.  Sentence Hearing  Sentencing hearing: the Judge’s opportunity to listen to recommendations and to consider all the facts before passing sentence.  Judge examines: o Criminal record of the accused o Pre-sentence report findings o Nature and severity of the crime o Offender’s background o Circumstances leading to and surrounding the offence o Offender’s family and employment situation o Offender’s attitude toward their own conduct  Aggravating Factors  Aggravating factors: circumstances that may increase the severity of the sentence.  They suggest that rehabilitation is unlikely or that a strong deterrent is necessary.  Example of an aggravating factors would be an ongoing pattern of assault against the same person.  Mitigating Factors  Mitigating factors: circumstances that may decrease the severity of the sentence  Offender can be rehabilitated, does not pose a threat to society, or doesn’t need strong deterrent measures  Examples: first-time offence and evidence of remorse, even a drunk driver voluntarily entering a treatment program.  Remember, Judge needs to keep in mind the goals of sentencing.  Discharge or Release  Most lenient sentence is a discharge or release. For minor or first-time offences that do not carry a minimum sentence and for which the penalty is less than 14 years. Two types, absolute and conditional.  Absolute discharge: releasing a convicted offender and erasing the criminal record after one year. (even though the accused is found guilty)  Conditional  Conditional discharge: releasing a convicted offender under certain terms, and erasing the criminal record after 3 years if the terms are met.  For minor offences.  If the terms are violated, the discharge is revoked and a more severe sentence is imposed.  Probation: a sentence that allows a person to live in the community under the supervision of a parole officer. In addition or in place of a prison term.  Failure to comply with these conditions can lead to facing additional terms or probation can be revoked, and offender will be sentenced on the original conviction.  Probation  Probation as three compulsory conditions o Offender must keep the peace and demonstrate good behaviour o Appear in court when required o Notify the Court or probation officer of any change of name, address, or employment.  Other Types of Sentences  Suspended sentence: a judgement that is not carried out, provided certain requirements are met. Only for offences that have no minimum punishment required by the Code.  First-time or minor offences. Offender still has a criminal record and could be placed on probation.  Intermittent sentence: a sentence served on weekends and at night. Less than 90 days.  For offenders who are not violent, have steady jobs, and whose families depends on their income.  Conditional sentence: a prison sentence that can be served in the community, with strict terms attached. (community service, seeking treatment)  More Sentences  Electronic Monitoring: allowing an offender to serve a sentence at home under electronic supervision from a remote location. (ankle monitor)  Binding Over: a sentence ordering the defendant to keep the peace and demonstrate good behaviour for up to 12 months. Imposed on someone who threatens another person or that person’s family or property. The complainant and defendant appear before a judge together.  Restraining order lasts until the hearing can be held, and no criminal offence occurs unless the peace bond is violated or the defendant refuses to be bound. Deportation  Anyone who is not a Canadian citizen and commits an indictable offence in Canada can be deported.  Deportation: a sentence of expulsion from the country  Fines  Fines: specific amounts of money paid as penalties for offences (summary offences, max fine of $2000)  Before imposing a fine, the Judge considers the offender’s ability to pay.  Take Something Away!  Suspension of privilege: a sentence that withholds a privilege for a specific period or a lifetime. (driver’s license, or license to own a firearm)  Majority of people charged with criminal offences never go to trial! (Why do you think?)  Plea Bargain  Plea Bargain: a negotiated deal whereby the accused pleads guilty in exchange for a lighter sentence.  Ex. someone accused of first-degree murder may agree to plead guilty to second-degree murder.  Instead of receiving a life sentence with no eligibility for parole for 25 years, the offender will be eligible for parole after 10 years.  Real Life Plea Bargain Crown and Karla Homolka in 1993. In exchange for sworn statements against her estranged husband, she was charged with two counts of manslaughter in relation to the homicides of two people. The Crown imposed two 12-year sentences to be served at the same time.  Incarceration  Incarceration: imprisonment for a specified period. Each criminal offence has a maximum sentence.  Robbery and manslaughter is imprisonment for life.  Aggravated sexual assault is 25 years.  Judges tend to use a range of punishments in determining appropriate sentences.  Incarceration Cont’d  Max penalty for a first, non-violent offence is less than 4 years; the judge is not bound to give any prison sentence at all and may opt for an alternative form of punishment.  Some carry a mandatory minimum sentence like second-degree murder.  Length of imprisonment depends on the penalty attached to the offence, details regarding the crime and offender, and whether multiple sentences should be served.  Sentences less than 2 years are served in provincial, 2+ are served in federal institutions  Middle Name is Danger  Dangerous offender: someone who constitutes a threat to the life, safety, or well-being of others.  In such cases, s. 753 (4) of the code requires the judge to impose an indeterminate sentences (who knows when they’re out)  May apply for parole, but will remain in prison until a parole board believes that they can be released safely  Concurrent/Consecutive  If you’re convicted of more than one offence at a time, you must serve more than one sentence.  Concurrent sentences: sentences served at the same time (2, 4 year terms would be 4 years: Karla’s Case)  Consecutive sentences: sentences served one after another (2, 4 year terms would be 8 years)  Restorative Justice Restorative justice focuses on using joint problem solving to deal with the harmful effects of crime. Unites victims, offenders, and the community to have offenders assume accountability for their crimes and to maybe make amends. (s. 717)  Restorative Justice  May help with rebuilding the offender’s self- respect and it helps by easing the burden of backlog in the courts and lowering the Court and prison costs.  Examples of restorative justice practices include victim-offender mediation, family group conferencing, and victim-offender panels.  Victim-Offender Mediation  Victim-offender mediation: an alternative measures program designed to determine restitution; involves the victim, the offender, and a mediator.  4 stages: o Case referral and acceptance o Preparation o Mediation o Follow-up  Each side explains their sides of the events and they may agree to appropriate restitution for the offence (payment, services)  Family Group Conferencing  Family group conferencing: an alternative measures program in which the victim and the offender meet with family members and other concerned parties to determine restitution. Only when an offender admits guilt.  Difference with this and victim-offender are the extra people that could be there: family members, community support groups, police officers, social welfare officials, and lawyers.  Offender can end this and go to court ay any time.  FGC involves 3 stages: o Preparation (explanation of events from both parties) o Conference (negotiations) o Post-conference (terms of agreement are monitored)  Victim-Offender Panels  Victim-Offender Panels: moderated discussions that allow victims and offenders, linked by a common crime, to express their feelings about the offence. (not the exact same crime)  Victim Impact Panel: a panel that allows victims and drunk driving offenders to express their views and feelings (organized by MADD)  Sentencing Circles  Over the years, there has been a disproportionate number of Aboriginal people incarcerated, so the federal government proposed changes to the Code to accommodate alternative measures.  Sentencing circles: an alternative measures program that involves a process of healing for both the victim and the offender (not for sentence over 2 years in prison)  Includes the offender and their family, the victim and their family, elders, other members of the Aboriginal community, police officers, and a trial judge. Research Time: Healing Lodges What is a Healing Lodge?  Who operates them?  Purpose Where are they located Who are healing lodges designed for?  Types of offenders Government of Canada Correctional Service  Back to the Money  Prison is the toughest and most expensive penalty for offenders. Costs about $5 billion annually.  Cost of keeping an offender in a federal penitentiary is about $115 000/year.  In Canada there are about 104 prisoners for every 100 000 people (US – about 650)  Max to Min Security Federal institutions are classified as maximum, medium, or minimum security. Prisoners can be moved between max and medium with good behaviour.  Provincial Correctional System Peoplein the provincial correctional system are either awaiting trial or serving sentences of less than 2 years.  Parole  Parole: release of an inmate, on a promise of good behaviour, into the community before the full sentence is served.  Except for first-degree murder, prisoners must be reviewed for parole after one-third of the full sentence has been served, or after seven years.  Inmates need to meet certain conditions to qualify for parole  Protection of society is the most important factor in any decision to release an offender Day vs. Full Parole  Day parole: conditional absence from custody during the day only (low-risk offenders after serving one-sixth of their sentence)  Full parole: conditional release from custody after serving one third to one half of a sentence  National Parole Board  National Parole Board need to review information first to make an assessment of the risks: o The offence, criminal history, social problems, mental status, performance on earlier releases, relationships and employment opportunities, psychological/psychiatric reports, opinions from professionals, victim impact statement  Then they look at information about the inmate (behaviour while incarcerated, evidence that behaviour has changed, benefit from correctional programs, treatment for any disorder)  Other Sentences  Conditional release: serving part of the sentence in the community under supervision  Unescorted temporary absence: brief release from custody for community service or personal reasons (medical issues, family contact)  Work release: conditional absence from custody to perform paid or voluntary work under supervision  Statutory release: release, by law, after serving two- thirds of a sentence (not for serving life or indeterminate sentences)  That’s a Long List…  Any offender released on parole or statutory release must agree to all of the conditions: o Travel directly on release to the place of residence, report to parole supervisor. o Provide parole officer with an address and report any changes of information (job, address, family, finances) o Remain in Canada at all times o Obey the law and keep the peace o Inform the parole supervisor if arrested or questioned by police o Carry the release certificate and identity card o Report to the police if instructed to o Do not own, possess or have any control over a weapon o If on day parole, return to the penitentiary at the date/time set out on the certificate  Best Case Scenario Pardon: the setting aside of a person’s record of conviction  Does not erase the fact that a person was convicted of an offence and some countries may not allow that person in at all!  When to apply? Summary offence 3 years after serving, Indictable offence, 5 years  97% of the 350 000 pardons are still in affect from 1970-2007 Pardon is automatically revoked if a person is later convicted of an indictable offence.  NPB can also rescind a pardon for: o A conviction for a summary offence o Unacceptable conduct o False information at the time of application  I beg your Royal Pardon  Queen, now King can extend a Royal Prerogative of Mercy (release or sentence reduction granted by the Queen under the authority of the Act of Parliament)  The RPM is the only potential remedy for persons who have exhausted their rights of appeal and are unable to show that their sentences conflict with the charter. R. v. Latimer Case