Sentencing
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Sentencing. Objectives (Principles/Goals), Considerations , and Procedures. GOALS OF SENTENCING. A judge’s discretion in the sentencing process is guided by the principles and objectives of sentencing that are codified in the Criminal Code of Canada.

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Sentencing

Sentencing

Objectives (Principles/Goals), Considerations, and Procedures


Goals of sentencing
GOALS OF SENTENCING

  • A judge’s discretion in the sentencing process is guided by the principles and objectives of sentencing that are codified in the Criminal Code of Canada.

  • There are 6 sentencing objectives and principles stated in Section 718.1 of the Criminal Code. They are:


Goals of sentencing1
GOALS OF SENTENCING

1. DENUNCIATION

2. DETERRENCE

To discourage the offender from re-offending : SPECIFIC DETERRENCE or,

To discourage members of society from committing similar crimes: GENERAL DETERRENCE.

  • Punishment designed to condemn the offender’s action

    • to send a message that the offender’s conduct has violated society’s basic code of values and that such conduct will be punished.


Goals of sentencing2
GOALS OF SENTENCING

3. SEGREGATION/PROTECTION OF THE PUBLIC

4. REHABILITATION

To help offenders become law-abiding citizens;

Punishment is combined with treatment and training to help offenders function in society;

The idea is also to prevent RECIDIVISM – when an offender returns to crime after release from prison.

  • i.e. Imprisonment

    • Offenders cannot pose a threat to personal safety or property if they are imprisoned, or separated from the rest of society.


Goals of sentencing3
GOALS OF SENTENCING

5. REPARATIONS/RESTITUTION

6. RESPONSIBILITY

To ensure an offender has accepted that his/her actions were wrong, and acknowledged the harm done to the victim and to society.

  • Requires offenders to pay society back for the injury, loss, and suffering they caused;

  • Includes community service or actual monetary payment, for example


Sentencing considerations
SENTENCING CONSIDERATIONS

  • Different perspectives must be considered in the sentencing process, including:

    • Considering the Offender;

    • Considering the Victim;

    • Considering Society;

    • Considering Other Factors.


Sentencing considerations1
SENTENCING CONSIDERATIONS

  • CONSIDERING THE OFFENDER

    • The judge may order a PRE-SENTENCE REPORT

      • A document prepared by a probation officer;

      • Provides background information about the offender, such as their family, education, employment history, physical and mental health, social activities, friends, previous criminal record, etc.

    • A PSYCHIATRIC ASSESSMENT might also be ordered

      • Prepared by a qualified psychiatrist;

      • Describes the mental history of the offender and may include results from psychiatric tests.

      • Includes information on the offender’s attitude toward his/her conduct.

      • Often an important factor in determining an appropriate sentence.


Sentencing considerations2
SENTENCING CONSIDERATIONS

  • CONSIDERING THE VICTIM

    • The judge is required to consider a VICTIM IMPACT STATEMENT

      • This is a statement prepared by the victim of the crime, or by the victim’s family, describing the harm done or the loss suffered as a result of the offence;

      • Enables the victim to confront the offender.


Sentencing considerations3
SENTENCING CONSIDERATIONS

  • CONSIDERING SOCIETY

    • The judge may also consider:

      • The Crown’s recommendation of an appropriate sentence;

      • The nature and severity of the crime;

      • Public opinion;

      • the availability of resources;


Sentencing considerations4
SENTENCING CONSIDERATIONS

  • OTHER FACTORS TO BE CONSIDERED

    • At the SENTENCING HEARING, the judge considers all the facts about the crime before passing sentence.

    • Other factors to be considered include:

      • Circumstances leading to and surrounding the offence;

      • Whether or not there is a STATUTORILY PRESCRIBED MINIMUM PENALTY for the crime as stated in the Criminal Code, i.e. The minimum sentence for 1st degree murder is 25 years in prison, so the minimum sentence for 1st degree murder is 25 years in prison.


Sentencing

  • Precedent – what has happened in earlier cases with similar facts – to ensure different sentences are not given for the similar cases (aka the Principle of PARITY), and to ensure that the sentence is not excessively harsh or long (aka the Principle of TOTALITY);

  • The Charter, such as the right of Canadians to not be subject to “cruel and unusual treatment or punishment”;

  • Restraint, meaning that the judge not use incarceration if less restrictive options are available;


Sentencing

  • Aggravating and mitigating factors similar facts – to ensure different sentences are not given for the similar cases (aka the Principle of

    • AGGRAVATING FACTORS increase the severity of the sentence, because they suggest that rehabilitation is unlikely or that a strong deterrent is necessary.

    • MITIGATING FACTORS decrease the severity of the sentence, suggesting that the offender can be rehabilitated, does not pose a threat to society, or does not need strong deterrent measures.


Aggravating vs mitigating factors
AGGRAVATING VS. MITIGATING FACTORS similar facts – to ensure different sentences are not given for the similar cases (aka the Principle of

CONCERNING THE OFFENDER

CONCERNING THE OFFENCE


Assignment
ASSIGNMENT similar facts – to ensure different sentences are not given for the similar cases (aka the Principle of

  • Read Sections 9.1 – 9.2 (p. 252 – 257) of your text and complete the following:

    • R. v. Goltz p. 254 questions 1 – 3;

    • R. v. Gladue p. 256-257 questions 1 – 4.

  • Read the cases on the handout provided, and answer complete:

    • R. v. Owens q. 1 and 2;

    • R. v. Germain q. 1 – 4.