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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. • There are 6 sentencing objectives and principles stated in Section 718.1 of the Criminal Code. They are: GOALS OF SENTENCING 1. DENUNCIATION 2. DETERRENCE • Punishment designed to • To discourage the offender condemn the offender’s from re-offending : action SPECIFIC DETERRENCE or, – to send a message that the • To discourage members of offender’s conduct has society from committing violated society’s basic code of values and that such similar crimes: GENERAL conduct will be punished. DETERRENCE. GOALS OF SENTENCING 3. SEGREGATION/PROTECTION OF THE PUBLIC 4. REHABILITATION • i.e. Imprisonment • To help offenders become • Offenders cannot pose a law-abiding citizens; threat to personal safety • Punishment is combined or property if they are with treatment and imprisoned, or separated training to help offenders from the rest of society. function in society; • The idea is also to prevent RECIDIVISM – when an offender returns to crime after release from prison. GOALS OF SENTENCING 5. REPARATIONS/RESTITUTION 6. RESPONSIBILITY • Requires offenders to pay • To ensure an offender has society back for the injury, accepted that his/her loss, and suffering they actions were wrong, and caused; acknowledged the harm • Includes community done to the victim and to service or actual monetary society. payment, for example SENTENCING CONSIDERATIONS • Different perspectives must be considered in the sentencing process, including: 1. Considering the Offender; 2. Considering the Victim; 3. Considering Society; 4. Considering Other Factors. SENTENCING CONSIDERATIONS 1. 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 CONSIDERATIONS 2. 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 CONSIDERATIONS 3. 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 CONSIDERATIONS 4. 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. • 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; • Aggravating and mitigating factors – 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 CONCERNING THE OFFENDER Aggravating Factors Mitigating Factors •Premeditation •Impulsive act •Previous criminal record •Young or first offender •Large profits from the offence •Guilty plea •Involving others in the offence •Co-operating with police •Ring leader of the group •Mental or physical disability •Continuing offence over time •Short life expectancy CONCERNING THE OFFENCE Aggravating Factors Mitigating Factors •Violent offence •Minor offence •Number of victims •Time spent in custody •Need for deterrent •Delay in trial ASSIGNMENT • Read the following cases: 1. R. v. Ferguson p. 292 questions 1 – 4; 2. R. v. Gladue p. 297 questions 1 – 4.
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