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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.
• 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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