sentencing cln4u. sentencing from section 718.1 of the criminal code from section 718.1 of the...
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SentencingSentencing
From Section 718.1 of the From Section 718.1 of the Criminal Criminal CodeCode
The fundamental purpose of The fundamental purpose of sentencing is to contribute, along with sentencing is to contribute, along with crime prevention initiatives, to respect crime prevention initiatives, to respect for the law and the maintenance of a for the law and the maintenance of a just, peaceful, and safe society by just, peaceful, and safe society by imposing just sanctions that have one imposing just sanctions that have one or more of the following objectives…or more of the following objectives…
SentencingSentencing to denounce unlawful conduct;to denounce unlawful conduct; to deter the offender and other persons to deter the offender and other persons
from committing offences;from committing offences; to separate offenders from society, to separate offenders from society,
where necessary;where necessary; to assist in rehabilitating offenders;to assist in rehabilitating offenders; to provide reparations for harm done to to provide reparations for harm done to
victims or to the community; andvictims or to the community; and to promote a sense of responsibility in to promote a sense of responsibility in
offenders, and acknowledgment of the offenders, and acknowledgment of the harm done to victims and to the harm done to victims and to the communitycommunity
ActivityActivity
What would be the sentencing objective(s) in What would be the sentencing objective(s) in the following scenarios?the following scenarios? An offender is charged with his/her second An offender is charged with his/her second
impaired driving offenceimpaired driving offence A first time offender with an alcohol abuse problem A first time offender with an alcohol abuse problem
is charged with assault causing bodily harmis charged with assault causing bodily harm An offender is charged with robbery with a weaponAn offender is charged with robbery with a weapon An offender is charged with importing narcotics An offender is charged with importing narcotics
into Canadainto Canada A father ends the suffering of his severely disabled A father ends the suffering of his severely disabled
child and is convicted of second-degree murderchild and is convicted of second-degree murder
Sentencing OptionsSentencing Options
IncarcerationIncarceration ProbationProbation DischargeDischarge FinesFines RestitutionRestitution Conditional SentencingConditional Sentencing
IncarcerationIncarceration If sentence > 2 years: Federal penitentiaryIf sentence > 2 years: Federal penitentiary If maximum penalty < 2 years: Provincial If maximum penalty < 2 years: Provincial
institutioninstitution For less serious offences (less than 90 days), the For less serious offences (less than 90 days), the
judge may impose an intermittent sentencejudge may impose an intermittent sentence Criminal Code outlines maximum (and sometimes Criminal Code outlines maximum (and sometimes
minimum) sentencesminimum) sentences Exceptions can be made for a person designated a Exceptions can be made for a person designated a
dangerous offenderdangerous offender Caused serious personal injuryCaused serious personal injury Pose a continued threat to societyPose a continued threat to society Dangerous offenders are subject to an indeterminate Dangerous offenders are subject to an indeterminate
sentence (no max)sentence (no max) Review for parole after 7 years, and every 2 years Review for parole after 7 years, and every 2 years
thereafterthereafter
ProbationProbation no incarceration, but must meet certain no incarceration, but must meet certain
conditions:conditions: keeping the peacekeeping the peace good behaviourgood behaviour making court appearancesmaking court appearances notifying the court of any change in addressnotifying the court of any change in address
Judge may also impose other conditions:Judge may also impose other conditions: Reporting to probation officerReporting to probation officer Remaining within the jurisdictionRemaining within the jurisdiction Abstaining from alcohol/drugsAbstaining from alcohol/drugs Community service (up to 240 hours over 18 Community service (up to 240 hours over 18
months)months)
DischargeDischarge no conviction is recordedno conviction is recorded used if in best interests of offender and publicused if in best interests of offender and public not used if:not used if:
mandatory minimummandatory minimum offence is punishable by 14 years – lifeoffence is punishable by 14 years – life offender must have plead guilty or been found guiltyoffender must have plead guilty or been found guilty
Absolute Discharge:Absolute Discharge: No criminal recordNo criminal record
Conditional Discharge:Conditional Discharge: Must meet conditions under a probation orderMust meet conditions under a probation order Breach of conditions may revoke discharge and result in Breach of conditions may revoke discharge and result in
a new sentencea new sentence
RestitutionRestitution
Compensate victim for harm doneCompensate victim for harm done i.e. replace property, pay for loss of i.e. replace property, pay for loss of
income, moving expensesincome, moving expenses
FinesFines
sum of money paid to courtsum of money paid to court cannot be used as sole sentencing cannot be used as sole sentencing
option for mandatory minimum option for mandatory minimum offencesoffences
court can impose a prison term is court can impose a prison term is offender fails to make paymentoffender fails to make payment
maximum fine for summary maximum fine for summary conviction is $2,000conviction is $2,000
Conditional SentencingConditional Sentencing Term if imprisonment is impose, but sentence is Term if imprisonment is impose, but sentence is
served in the communityserved in the community Conditions attachedConditions attached Key case: R. v. ProulxKey case: R. v. Proulx
Dangerous driving causing death and dangerous driving Dangerous driving causing death and dangerous driving causing bodily harmcausing bodily harm
Conditional sentence not given – objectives of Conditional sentence not given – objectives of denunciation and deterrencedenunciation and deterrence
Manitoba Court of Appeal substitutes conditional Manitoba Court of Appeal substitutes conditional sentencesentence
Supreme Court ruled in favour of original trial judgeSupreme Court ruled in favour of original trial judge 3 part test:3 part test:
no mandatory minimumno mandatory minimum prison term < 2 yearsprison term < 2 years offender not a danger to communityoffender not a danger to community
Sentencing ConsiderationsSentencing Considerations
No “cruel and unusual” punishmentNo “cruel and unusual” punishment Aggravating and Mitigating factorsAggravating and Mitigating factors Parity and TotalityParity and Totality RestraintRestraint
Cruel & Unusual PunishmentCruel & Unusual Punishment
s. 12 of the Charter: “Everyone has the s. 12 of the Charter: “Everyone has the right not to be subject to cruel and right not to be subject to cruel and unusual punishment.”unusual punishment.”
s. 718.1 of the Criminal Code: “A s. 718.1 of the Criminal Code: “A sentence must be proportionate to the sentence must be proportionate to the gravity of the offence and the degree of gravity of the offence and the degree of responsibility of the offender.”responsibility of the offender.”
Proportionality may determine whether Proportionality may determine whether the sentence is “cruel & unusual”the sentence is “cruel & unusual”
Aggravating FactorsAggravating Factors (from s. 718.2 of the Criminal Code):(from s. 718.2 of the Criminal Code): evidence that shows the crime was evidence that shows the crime was
motivated by prejudice or hatemotivated by prejudice or hate evidence the offender engaged in spousal evidence the offender engaged in spousal
or child abuseor child abuse evidence of abuse of trust in relation to evidence of abuse of trust in relation to
the victimthe victim evidence that the offence was committed evidence that the offence was committed
for the benefit of a criminal organizationfor the benefit of a criminal organization evidence that the offence was an act of evidence that the offence was an act of
terrorismterrorism
Mitigating FactorsMitigating Factors
first time offencefirst time offence remorseremorse good charactergood character positive reputation in the communitypositive reputation in the community good employment recordgood employment record engagement in a rehabilitation engagement in a rehabilitation
programprogram
ParityParity
““A sentence should be similar to A sentence should be similar to sentences imposed on similar sentences imposed on similar offenders for similar offences offenders for similar offences committed under similar committed under similar circumstances.” circumstances.” (s. 718.2 of the (s. 718.2 of the Criminal Code)Criminal Code)
TotalityTotality
““Where consecutive sentences are Where consecutive sentences are imposed, the combined sentence imposed, the combined sentence should not be unduly long or harsh.” should not be unduly long or harsh.” (s. 718.2 of the Criminal Code)(s. 718.2 of the Criminal Code)
RestraintRestraint
s. 718.2 of the Criminal Code: “An s. 718.2 of the Criminal Code: “An offender should not be deprived of offender should not be deprived of liberty, if less restrictive sanctions liberty, if less restrictive sanctions may be appropriate in the may be appropriate in the circumstances.”circumstances.”
The Role of the VictimThe Role of the Victim
As we’ve seen, under Retributive Justice As we’ve seen, under Retributive Justice (upon which our system has historically (upon which our system has historically been based), the role of the victim is been based), the role of the victim is minimizedminimized Crime is seen as a conflict between the Crime is seen as a conflict between the
offender and societyoffender and society As more Restorative Justice principles As more Restorative Justice principles
enter into our system , victims have enter into our system , victims have become more involved in the process, become more involved in the process, particularly during sentencingparticularly during sentencing
The Role of the VictimThe Role of the Victim
In 1999 the Criminal Code was In 1999 the Criminal Code was amended to include the right of a amended to include the right of a victim to prepare and read a victim victim to prepare and read a victim impact statement in courtimpact statement in court
Also requires offenders to pay fines Also requires offenders to pay fines (victim surcharge) in addition to their (victim surcharge) in addition to their sentencesentence
Victim Impact StatementsVictim Impact Statements
Details the harm/loss suffered as a result Details the harm/loss suffered as a result of the offenceof the offence
Can read in court or present in any other Can read in court or present in any other manner considered appropriate by the manner considered appropriate by the courtcourt
Spouse/partner/family can write the Spouse/partner/family can write the statement if the victim is dead or illstatement if the victim is dead or ill
Is optional, but if submitted must be Is optional, but if submitted must be considered by judgeconsidered by judge
Copy provided to the offender, the Copy provided to the offender, the defense, and the Crowndefense, and the Crown
Victim Impact StatementsVictim Impact Statements
What’s the point?What’s the point? Provides closure for victimsProvides closure for victims Court can hear firsthand the impact of Court can hear firsthand the impact of
the crimethe crime
Victim SurchargeVictim Surcharge
Imposed in addition to whatever sentence the Imposed in addition to whatever sentence the court imposes (including absolute discharge)court imposes (including absolute discharge)
Money goes to victims’ assistance programsMoney goes to victims’ assistance programs If sentence is a fine, victim surcharge = 15%If sentence is a fine, victim surcharge = 15% For non-fine sentences, surcharges are at For non-fine sentences, surcharges are at
least $50 (summary) and $100 (indictable)least $50 (summary) and $100 (indictable) There is no maximum surchargeThere is no maximum surcharge
Offender can be exempted from surcharge if Offender can be exempted from surcharge if they can establish undue hardshipthey can establish undue hardship