Law of Sentencing

1
Law of Sentencing

• Audrius Stonkus

2
Historical Perspective

• The common forms of punishment in ancient
  communities included
• (1) capital punishment (over time, capital
  punishment has taken many forms stoning,
  throwing the offender off a cliff, burning at the
  stake, crucifixion, being buried alive, being
  hanged (dragged, quartered, entrailed), the
  guillotine, electrocution, gas chamber, etc.)
• (2) physical mutilation (e.g., cutting the hand
  off of a thief, or cutting off a tongue or ear,
  or branding)
• (3) corporal punishment (e.g., whipping, torture
  etc.)
• (4) confiscation of property
• (5) exile (as an alternative to capital
  punishment)
• (6) loss of civil status
• (7) forced labour (e.g., working in the salt
  mines or in the galley of a boat or forced to
  participate in gladiatorial combat)
• (8) prison was usually only used to hold persons
  awaiting trial or execution, or for debtors
• (9) public shaming or denunciation was used for
  minor offences.

3
Canadian perspective

• The BNA Act s. 91(28) also assigned
  responsibility to the federal government for
  establishing and maintaining "penitentiaries" and
  s. 92(6) assigned responsibility for local jails
  and reformatories to the provinces.
• Capital punishment (hanging) was officially
  abolished in 1975, but the last hanging to occur
  in Canada was in 1962. New rules for parole
  ineligibility were set for murder -- no parole
  eligibility for 25 years, subject to a "faint
  hope clause" application to a jury after 15 years
  to reduce parole eligibility to something less
  than 25 years.
• Throughout the 20th century, imprisonment
  remained as the primary sentencing response to
  crime, although fines and probations gained some
  ground during the course of the twentieth century.

4
Softer or More Realistic?

• The "Changing Focus of Punishment" from the 18th
  to the 21st centuries is summarized as follows
• At the end of the eighteenth century, most
  sentences were directed at the body of the
  offender either in the form of execution or
  mutilation.
• Exclusion was also a dominant feature, achieved
  through transportation, banishment, and civil
  disability.
• The birth of the penitentiary provided a change
  in course, to stipulated periods of deprived
  liberty during which, optimistically, some
  reformative process would take place.
• Initially, the engines of reformation were
  thought to be penitence, discipline, and hard
  labour.
• Later, the rehabilitative ideal replaced these
  regimes with psychological, vocational, and
  education programs.

5
Recent Changes

• In the twentieth century, various factors
  produced a renewed interest in fines and the new
  sanction, probation.
• Now, at the beginning of the twenty-first
  century, we are in the midst of a debate about
  the overuse of imprisonment and the continuing
  search for non-custodial alternatives.
• Factors like rapidly expanding costs of
  imprisonment, the enthusiasm for restorative
  justice, and dissatisfaction about the state of
  criminal justice in aboriginal communities
  combine to encourage new community-based
  alternatives with a large role for members of the
  community, both as contracted service providers
  and volunteers.

6

• Sentencing (imposition of punishment) often
  follows immediately after conviction. There may,
  though, be a delay--either for the defence to
  prepare its arguments, or for a pre-sentence
  report by a probation officer.

7
Discharges

• Even if a court finds you guilty of an offence,
  under some circumstances it might not convict
  you, but instead might give an absolute or
  conditional "discharge". This means there will be
  no punishment, and you will not have a criminal
  record as such (although the discharge itself is
  recorded).
• The conditions that may be part of a conditional
  discharge can include things like the payment of
  restitution for damages, or counselling. The
  conditions will be imposed through a probation
  order. If these conditions are not kept, the
  discharge can be revoked, and a conviction
  entered after all.
• A discharge is not possible if there is a minimum
  penalty for the offence, as with impaired
  driving, or if the maximum punishment for the
  offence is 14 years or more in jail.
• To grant a discharge, the judge must be convinced
  it is in the best interests of the accused, and
  is not contrary to the public interest.
• If a discharge is not granted, and a conviction
  entered instead, the sentence can be a money
  fine, a period of probation, a term of
  imprisonment, or a combination of these
  punishments. A fine will usually have a surcharge
  added on top of it, that is supposed to go into a
  fund for compensation of victims.

8
Probation

• The judge may "suspend" sentence while you follow
  a programme of probation.
• If this is not properly completed, the suspended
  (more severe) sentence can then be imposed
  s.738.
• The terms that can be included in such a
  probation order are set out in the Criminal Code
  s.737.

9
Restitution

• There may also be an order for "restitution"--that
  is, you must make a payment to someone who has
  suffered loss because of your criminal acts
  s.725.

10
Aggravating and Mitigating Factors

• Aggravating factors increase the severity of
  the sentence
• Mitigating factors decrease the severity of the
  sentence

11
Aggravating Factors

• Aggravating
• -offence motivated by bias, prejudice or hate
• -abuse of the offenders spouse or child during
  the commission of an offence
• -abuse of a position of trust while committing an
  offence
• -involvement of organized crime in the offence

12
Mitigating Factors

• -offender pleaded guilty
• -offender has provided restitution to
  (compensated) the victim
• -offender has good character references
• -offender has limited or no previous criminal
  record
• -age of the offender (very young or very old)

13
Speaking to Sentence

• If you plead guilty, or are convicted after a
  trial, you will have a chance to tell the judge
  about anything you think should make the sentence
  lighter. This will be done for you by your
  lawyer, if you have one, or you can speak for
  yourself. The most important things to
  concentrate on, after you've given the judge a
  brief personal background with details of your
  age and education, family, home and work
  situation, etc., are
• personal factors that should cause the judge to
  be more sympathetic towards you, such as poor
  health or other difficulties
• personal circumstances or achievements that show
  you are a good citizen, like schooling, job,
  family attachments, volunteer work, courses or
  counselling taken, etc.
• circumstances surrounding the offence that make
  what you did less blameworthy, or at least more
  understandable
• facts that make your situation unique, so that a
  heavy penalty is not needed to act as a general
  deterrent against crime in society
• any reason why a particular sentence might be
  especially hard on you--for instance, why you
  would find it difficult to pay a fine, or why a
  jail sentence would cause family hardship
• your feelings about the offence, that show you
  are unlikely to do it again, so that a harsh
  punishment is not necessary for your own
  deterrence.
• Most importantly, if there were circumstances
  that made you act the way you did, if you regret
  doing so, and/or do not intend to do so again,
  make sure the judge knows all that. For most
  offences, the judge has a lot of discretion in
  how big a sentence to impose, and a serious,
  respectful and apologetic attitude on your part
  will go a long way towards getting him or her to
  be lenient.

14
Tools Used by the Courts to Determine Appropriate
Sentences

• Pre-sentence report by probation officer who
  investigates and reports on many issues including
  offenders age, maturity, character, behaviour,
  attitude and willingness to make amends s. 721
  (3)
• Victim impact statement which is an account by
  the victim or a relative describing the negative
  effects of the crime on their lives

15
Tools Used by the Courts to Determine Appropriate
Sentences

• Evidence including witnesses statements
• Convicted persons statements
• Criminal record of the offender
• Defence and Crown submissions (arguments about
  the sentence)

16
Most Common Sentences Involving Incarceration

• Concurrent Sentence
• The sentence of the different crimes may be
  served at the same time
• Consecutive Sentence
• If the accused is convicted of more than one
  crime not related to each other, then the
  sentences may run one after the other

17
Most Common Sentences Involving Incarceration

• Intermittent Sentence
• To help a convict maintain a job or finish
  schooling, the fail time for some crimes may be
  served on weekends and evenings.
• Indeterminate Sentence
• Criminals classified as dangerous offenders get
  sentences of indefinite length that could last
  their lifetime.

18
Most Common Sentences Involving Incarceration

• Capital Punishment
• The death penalty was revoked in Canada in the
  1960s
• Conditional Release
• Often criminals do not serve their entire
  sentence in prison

19
Type Reasons/Conditions Time
Day parole To prepare for full parole or statutory release at the discretion of the national Parole Board (NPB) parolee returns to an institution at night 6 months before full parole after one-sixth of sentence for first-time non-violent convicts
Full parole To prepare for full parole or statutory release at the discretion of the national Parole Board (NPB) conditions attached to the offenders release Usually after the lesser of one-third of sentence or seven years
Statutory release To prepare for reintegration while being supervised by a parole officer If the offender is not on parole then for most crimes the law requires the convict to be released before the end of the sentence not for lifers or those serving an indeterminate sentence Usually after two-thirds of sentence.
20
Custodial Sentences - Jail /Prison/ The Slammer
/The Big house/ The Pokey

• Sentences of two years or more are served in
  federal penitentiaries- shorter sentences are
  served in provincial detention centers.
• This is why you sometimes see sentences of two
  years less a day.
• Normally a convict will serve the last 1/3 of his
  sentence on parole- parole may allow him to be
  supervised while out of custody so as to better
  integrate back into society.

21
Speaking to Sentence

• If you plead guilty, or are convicted after a
  trial, you will have a chance to tell the judge
  about anything you think should make the sentence
  lighter. This will be done for you by your
  lawyer, if you have one, or you can speak for
  yourself. The most important things to
  concentrate on, after you've given the judge a
  brief personal background with details of your
  age and education, family, home and work
  situation, etc., are
• personal factors that should cause the judge to
  be more sympathetic towards you, such as poor
  health or other difficulties
• personal circumstances or achievements that show
  you are a good citizen, like schooling, job,
  family attachments, volunteer work, courses or
  counselling taken, etc.
• circumstances surrounding the offence that make
  what you did less blameworthy, or at least more
  understandable
• facts that make your situation unique, so that a
  heavy penalty is not needed to act as a general
  deterrent against crime in society
• any reason why a particular sentence might be
  especially hard on you--for instance, why you
  would find it difficult to pay a fine, or why a
  jail sentence would cause family hardship
• your feelings about the offence, that show you
  are unlikely to do it again, so that a harsh
  punishment is not necessary for your own
  deterrence.
• Most importantly, if there were circumstances
  that made you act the way you did, if you regret
  doing so, and/or do not intend to do so again,
  make sure the judge knows all that. For most
  offences, the judge has a lot of discretion in
  how big a sentence to impose, and a serious,
  respectful and apologetic attitude on your part
  will go a long way towards getting him or her to
  be lenient.

22
Recent changes to sentencing Law,
diversion/alternative measures

• In September, 1996, the part of the Criminal Code
  dealing with sentencing was completely
  re-written, and one of the big changes was a
  clear statement that judges should avoid giving
  jail time, if at all possible.
• Another change made official what has long been
  done in the "Diversion" programme. For minor
  first offences, where the accused person admits
  what he or she has done, and wants to make
  amends, the whole thing can sometimes be dealt
  with outside the regular justice system.
• If you are in this situation, and are willing to
  take responsibility for whatever you have done
  (and avoid a criminal record), it might be worth
  asking the prosecutor's office if they are
  willing to consider Diversion (officially called
  Alternative Measures). This would usually be done
  after the first appearance in court.
• If the Crown is willing, there will be an
  interview with whichever group is responsible for
  the programme in your province, and if they too
  approve, a contract will have to be signed.
• The contract acknowledges the harm that you have
  done, and sets out what you will do to make up
  for it, often by some form of community work.
• Once the contract is signed, the Crown normally
  enters a stay of the charge against you, so that
  you do not have to appear in court any more.