Lecture 6: Sentencing Flashcards
1
Q
Define sentencing
A
- sentencing: the judicial determination of a legal sanction upon a person convicted of an offence (i.e. punishment for being convicted of a crime)
2
Q
What are the 6 fundamental purposes of sentencing?
A
- 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 sanctions that have one or more of the following objectives:
- (a) to denounce unlawful conduct;
- (b) to deter the offender and other persons from committing offences;
- Specific & general deterrence
- (c) to separate offenders from society, where necessary;
- Note: only where necessary
- Will try to put them on house arrest most of the time so they aren’t completely isolated
- The longer someone is isolated, the longer it takes to be rehabilitated back into society
- (d) to assist in rehabilitating offenders;
- (e) to provide reparations for harm done to victims or to the community; and
- (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.”
- Problem of which to pick? Not really; the problem of which goal is more dominant falls away when considering specific cases before court
3
Q
What is sentencing disparity?
A
- sentencing disparity: “Any difference in severity between the sentence that an offender receives from one judge on a particular occasion and what an identical offender with the identical crime would receive from either the same judge on a different occasion or a different judge on the same or different occasion”
- Single most important problem w/ sentencing in Canada
4
Q
What are the two main extra-legal sources of sentencing disparity?
A
- 1) Systematic disparity: consistent disagreement among judges about sentencing
- Could stem from personality, philosophy, experience
- Not as problematic & leads to a more robust legal system
- 2) Unsystematic disparity: a given judge’s inconsistency over occasions in judging similar cases
- Could stem from mood, focusing on irrelevant stimuli, etc.
5
Q
What are the 6 fundamental principles of sentencing?
A
- “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
- (a) a sentence should be increased or reduced to account for any relevant mitigating and aggravating circumstances relating to the offence or the offender”
-
Mitigating factors: a circumstance that doesn’t exonerate the person, but which reduces the penalty associated with the offence
- e.g. Lack of intentionality, first time offence, confessing to a crime (i.e. taking responsibility for your actions, ability to be rehabilitated)
- It shall be deemed aggravating circumstances if:
- (i) evidence that the offence was motivated by bias, prejudice or hate based on the race, nationality, colour, religion, sex, age, mental or physical disability or sexual orientation of the victim, or
- (ii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim
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Mitigating factors: a circumstance that doesn’t exonerate the person, but which reduces the penalty associated with the offence
- (b) sentence should be similar for similar offenders committing similar offences under similar circumstances
- (c) Where consecutive sentences are imposed, the combined sentence should not be unduly harsh or long
- (d) An offender should not be deprived of liberty if less restrictive sanctions are appropriate under the circumstances
- e.g. If someone is remorseful & hopeful of being rehabilitated, they might be able to be moved to a medium security prison
- (e) If reasonable, sanctions other than imprisonment to be considered, for all offenders
6
Q
What are the 6 different sentencing options?
A
- Absolute and conditional discharge
- Probation
- Restitution
- Fines and community service
- Conditional sentence
- Imprisonment
7
Q
Describe the considerations behind absolute and conditional discharge, exclusions, and how conditional discharge is different from probation.
A
-
Considerations:
- Is this in the best interest of the offender?
- Is it not contrary to public interest?
- Trying to find a balance between both
- Exclusions: Offence w/ a minimum sentence; e.g. a term of 14 years w/o parole or life sentence
- Very rare to give an absolute discharge; will often give a conditional discharge that becomes an absolute discharge
- A conditional discharge requires the offender to follow certain rules for a specified length of time as set out in a probation order
- When duration has passed and the conditions are met, the discharge becomes absolute
- Conditional discharge different from probation b/c if you complete your conditions & it becomes absolute → offender becomes regarded legally as not convicted
- i.e. It says you were given absolute discharge on your record but you won’t be further penalized for it after you’re discharged
8
Q
Explain how probation is imposed, the mandatory and optional conditions, and what happens in case of probation violation.
A
-
Probation: may be imposed 1) on its own, 2) as a suspension of sentence (i.e. substituting the rest of your jail time as probation), or 3) in addition to other sentencing options (e.g. a fine)
- If you’re given a probation, the crime goes on your record
-
Mandatory conditions:
- 1) Keep the peace and be of good behaviour
- 2) Appear before the court when required
- 3) Notify the court or the probation officer of any change of name or address, employment or occupation
- Plus optional conditions—judge decides additional mandatory conditions based on specifics of the case
- e.g. Stay away from the convenience store you committed a crime at, stay away from firearms, community service, etc.
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Probation violation: breach of probation is a crime & incurs stiff penalties
- Punishable by a term of imprisonment of up to two years
- You won’t necessarily always get imprisonment, you might just get a warning if it’s a minor violation
- If you got probation as a suspension, you might go to jail again
9
Q
Explain what a restitution is
A
- Restitution: payment made by an offender to the victim to cover expenses resulting from the crime
- The amount of restitution is equal to the amount of damage incurred
- If it involves injury, criminals can also be ordered to pay medical bills
- Restitution for (mental) pain and suffering is not available through the criminal courts but is settled through civil court
10
Q
Explain how fines and community service are given out
A
- The fine is the most frequently used sentencing option in Canada
- 45% of convicted adult offenders in Canada are fined
- Not saying that murders just pay a fine & get away w/ it, but that most crimes committed are able to be settled via fine
- In lieu of paying a fine, you can go to prison, or vice versa (e.g. $2000 for 6 months in jail, or a certain number of hours doing community service)
- The two could be given together, but could also be given separately
11
Q
Describe a conditional sentence (or a suspension) and what happens in the case of a violation.
A
-
Conditional sentence: prison sentence is ‘suspended’ (and served in the community) as long as the offender abides by the rules imposed by the court
- Alternative to incarceration if:
- Jail sentence <2 years
- You do not pose a threat to public safety
- Alternative to incarceration if:
-
Conditional sentence violation: Suspension cancelled
- May be required to serve the remainder of his/her sentence in prison
12
Q
Describe imprisonment and intermittent imprisonment and their conditions.
A
- The Government of Canada’s approach to criminal justice is a balanced one
- Includes tough measures for high-risk, violent offenders
- But encourages the appropriate use of community alternatives for offenders convicted of less serious crimes
-
Intermittent imprisonment: Only for a term of imprisonment for <90 days
- The court will specify the times when the term of imprisonment will be served (e.g. weekends)
- Must comply with the conditions set out in a probation order when not serving
- Usually given if you going to prison will put undue burden on other people
- Imprisonment is the most serious option in Canada
- Intended as a last resort
- Most serious penalty that can be imposed is: life imprisonment
- A “life sentence” maxes out at 25 years & offenders can typically apply for parole after serving two-thirds of their sentence in custody (statutory release)
13
Q
[T] What is the Gladue report and what is it meant to remedy?
A
- Gladue report: prior to sentencing for Aboriginal offenders, Judges must document info regarding the background of the offender (e.g., mental health, residential school experience) and information about the available alternatives to incarceration (e.g. healing procedures specific to the community)
- Gladue courts: specialized courts to hear cases from Aboriginal persons
14
Q
[T] What did Doob & Roberts (1998) find in regards to public opinions about sentencing decisions?
A
- Had 1/2 participants read news media report of a case of assault while other 1/2 read the court documents on the case
- Perpetrator in this case was sentenced to 21 months in prison
- News media: 63% rated sentence too lenient
- Court documents: 52% rated sentence too harsh
15
Q
[T] What are the different types of prisons?
A
- Jails and remand centres are distinguished from prisons by their function
- Jails might consist of short-term holding cells operated by cities and administered by local authorities (such as municipal police or the RCMP)
- Remand centres are operated by the provinces and territories
- Provincial and territorial correctional centres, prisons, and penitentiaries hold convicted criminals for longer periods of time, sometimes decades
- minimum-security institutions: for offenders convicted of non-violent or less serious charges, or those who have demonstrated positive and low-risk behaviour for a long period of time in custody
- maximum security institutions: include perimeters that consist of walls or high fences and control towers posted with armed correctional officers. Inmate movement, opportunities for interacting with other inmates, and privileges are strictly regulated
