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 offender’s 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 “offender’s 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 person’s 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

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.