1

Chapter 9 From Sentencing to Release

2

Introduction• judge may order a probation officer to prepare a pre-sentence report, which describes the offender's situation, also include interviews with the offender, person's history and potential for rehabilitation

• defence and Crown have the right to respond to sentencing and to call witnesses to testify about the offender's background

• judge must refer to the Criminal Code which specifies the penalties available (minimums or maximum sentences)

3

Imposing a Sentence

• judges have considerable freedom in imposing a sentence

• judge will often refer to precedents but don’t have to follow

• may consider the time spent in custody awaiting trial and/or sentencing, the circumstances of the convicted person and the potential for rehabilitation

• judge may ask for a victim impact statement

• judge must consider the will of Parliament

4

Purpose and Principles of Sentencing• 1995 Parliament stated that the appropriate sentence promotes respect for the law and the maintenance of a just, peaceful and safe society

• historically the four main goals when punishing offenders are: deterrence, rehabilitation, retribution, and segregation

5

• Deterrence– deter an offender from committing a criminal offence in the future (specific deterrence)

– all members of society should be deterred from committing a similar crime (general deterrence)

• Rehabilitation– sometimes called resocialization– to reduce recidivism (return to prison upon being convicted of a new offence)

• Retribution– not a sentencing objective, according to the Criminal Code

• Segregation– one purpose of sentencing is to segregate offenders from society

– Canada's incarceration (imprisonment) rate is one of the highest in the world (not as high as US)

6

Other Goals of Sentencing• judges consider reparations (repayment) for harm done

• the Criminal Code also states that sentences should reflect the harm done to victims and to the community

7

Proportionality in Sentencing• mitigating circumstances (circumstances of the crime that lessen the responsibility of the offender)

• aggravating circumstances (circumstances of the crime that increase the responsibility of the offender)

• defines aggravating as an offender’s bias or hatred toward the victim, evidence that the offender abused a spouse or child, abused a position of trust in relation to the victim, or committed a crime in association with a criminal organization

8

Sentencing an Offender

• because of the high cost of maintaining the prison system, diversion programs--sentences that keep offenders out of the prison system which prevents socialization with other criminals and to lower the cost of carrying out sentences

9

Discharges

• an absolute discharge has no conditions

• a conditional discharge-conditions are laid out in a probation order given at the time of sentencing

• used if sentence is less than 14 years and carries no minimum sentence(e.g., a first time shop lifter)

• no conviction is recorded against the offender if the conditions are followed

10

Suspended Sentence and Probation

• sentence is delayed and may never be served with a suspended sentence

• still has a record of conviction and could be placed on probation for up to three years

• a probation order requires that the accused keep the peace, be of good behaviour, appear before the court when required to do so and do anything else the judge orders

11

Conditional Sentence

• if a sentence is less than two years and the crime carries no minimum sentence the judge may impose a conditional sentence

• e.g., offender sentenced to less than two years but allows the offender to serve the time in the community

• are intended to be heavier than suspended sentences

12

Suspension of a Privilege• punishment for many offences• e.g., suspension of a drivers license (a person whose license is suspended will usually surrender it before leaving the courtroom)

• authorities can refuse to issue or renew a license if a fine has not been paid

13

Peace Bond

• is a court order requiring a person to keep the peace and be of good behaviour for up to 12 months

14

Restitution or Compensation• victims may ask for restitution at the time of sentencing

• courts must now consider restitution in all cases involving harm to property or expenses arising from bodily harm

• the victim can still sue the offender

• penalty for ignoring a court order granting restitution is imprisonment

• restitution may be ordered to be paid before any fine is imposed

15

Community Service Orders• have an offender work a certain number of hours for a local organization or on a government project

16

Deportation

• anyone who is not a Canadian citizen and who commits a serious offence within Canada can be deported to his or her country of origin

• under the Extradition Act, Canadian residents who commit serious offences in other countries can be returned to those countries to stand trial or receive punishment

17

Fines--for summary offences• Criminal Code generally set at $2000 maximum but other statutes can be higher (e.g., for Corporations the maximum is $25000)

• no maximum fine for indictable offences• if the penalty for an indictable offence is five years or less, the offender may pay a fine instead of going to prison

• if more than 5 years then a fine may be imposed in addition to imprisonment

• instead of paying a fine an offender can earn credits for doing work similar to community service (not available in Ontario)-referred to as the fine option program

18

Imprisonment• maximum imprisonment for most summary convictions is 6 months

• judge decides if the amount of time an offender has been kept in custody before trial will count toward a sentence (pretrial custody is equal to twice the time when considering a penalty)

• kept in a local detention centre if sentence 30 days or less

• provincial prison or reformatory is sentence greater than 30 days and less then 2 years

• over two years kept in a federal institution (penitentiary)

19

• Concurrent Sentence– is when they are convicted of two or more crimes and serve both penalties at the same time

– used when the offences are similar or where they were committed at the same time

• Consecutive Sentence – is when they are convicted of two or more crimes and they serve the penalties one after the other

– used when the offences differ from each other and where a longer prison term is deemed appropriate.

20

Intermittent Sentence• serving it on weekends or even at night while maintaining a job--available only if the original sentence is less than 90 days--also issued with a probation order

• used where the offender has committed minor crimes and has been sentenced to less than 90 days

• the principle of totality guides sentencing in that someone who is convicted of several violations of the same offence usually does not receive an overlong prison term but not so lenient that people are encouraged to commit multiple crimes.

21

Sentencing Dangerous and Long-Term Offenders• a serious personal injury (indictable offence) offence may be declared a dangerous offender or a long-term offender

• to be declared a dangerous offender one of the following conditions must exist1) has a pattern of aggressive behaviour that is unlikely to change2) is indifferent to the consequences of his or her behaviour3) committed such a brutal offence that future behaviour is likely to be abnormal4) has sexual impulses that will likely cause injury or pain to others

22

• prospects for treatment or a cure are irrelevant

• receives an indeterminate sentence (sentence with no fixed length)

• the National Parole Board reviews the situation of dangerous offenders regularly

• to protect society from sexual offenders a new sentencing category--long-term offenders--was added to the Criminal Code in 1997

• Crown applies for this designation if it cannot prove the offender is dangerous

23

Long-term Offenders:

a) repeatedly displays behaviour that could cause death, injury, or psychological harm

b) would likely reoffend following a sexual offence

• sentenced for the original offence and receives an additional sentence of up to 10 years of community supervision

24

Capital Punishment

• in 1962 there were two categories of murder

• capital murder (murder requiring the death penalty)

• non-capital murder (punishable by life imprisonment)

• after 1962, all death sentences were commuted to life imprisonment

• in 1976 Parliament abolished the death penalty

25

Restorative Justice and Victims of Crime• focus on healing and forgiveness—dealing with the damage done to victims in particular, but also the pain and suffering of the offender

• supporters say it allows victims to describe to offender the affect crime has had on them and the offender can explain their actions and express remorse and compensate the victim

• non-supports say the victims are afraid to meet offenders and there is too much focus on the offenders needs and less on the victims needs and societies needs

26

Sentencing, Healing, and Releasing Circles used by Aboriginals

• sentencing circles brings together the offender, the victim, family and community members, a judge, lawyer and the police to recommend the sentence for the offender

• healing circles are held to resolve the conflict between offender and victim

• releasing circles are held in Aboriginal communities at the end of a sentence to help prepare the offender for the successful return to the community

27

Victims of Crime• Crown prosecutes a criminal matter on behalf of

society, not the victim• Victim Impact Statement (provided by victims

and others affected by the offence) will outline the harm done or the losses caused but will not suggest a sentence-this will help the judge understand the impact of the offence on the victim

• the victim can read this statement in court and can be called as a witness at a sentencing hearing

• most provinces victims can obtain some support services at the time of the offence (24 hour crisis and support lines frequently available)

• Criminal code lets the Crown request restitution for the victim (restitution can even be ordered for "indirect" victims)

• the victim has the right to know the offence for which the offender has been convicted, the length of their sentence and where they are serving it at

28

• Criminal Injuries Compensation Fund– uses public money to compensate a person who is injured in some way when a crime is committed when a person assists an officer an makes an arrest, makes a citizens arrest or tries to prevent a crime

– victim must return the money if he or she successfully sues the offender for compensation

• Victim Assistance Fund– establish to set up education, counseling and other programs for victims of crime

– offenders pay a surcharge on their fines which goes into this fund

– 15% of the fine or an amount not greater than $10000 where no fine is imposed

29

Appeals

• both accused and the Crown can appeal

• appellant is the person requesting the appeal and the respondent is the other party

• generally 30 days is allowed for an appeal

• new evidence referred to as fresh evidence, is admitted only if it is relevant, credible and would have affected the results of the trial

• the defence can appeal a conviction, a verdict, a sentence or rulings on fitness to stand trial for a summary conviction offence

30

• Defence can appeal a conviction for an indictable offence based on a question of law and/or fact, and any reason the appeal court believe is worthy

• Crown can appeal a decision of not guilty for an indictable offence based on questions of law, the sentence if the court gives its permission, or a trial judge orders that an indictment is invalid or the judge stays the proceedings

• appeal court may change the verdict, change the sentence or order a new trial

31

Prison-Entering the Prison System• closed custody is reserved for offenders who are dangerous, likely to escape, or are hard to manage

• open custody institutions provide an opportunity for the inmate to work (forest management, farming)

• community correctional facilities allow inmates to work or go to school on a daily basis, returning to the correctional facility at night

32

• Federal correctional facilities have different levels of security: maximum, medium, and minimum

• an institution is selected, based on the level of risk to society, the type of rehabilitation program needed,the type of offence committed, the risk of escape, the availability of rehabilitation programs, the location of the offenders family members and the opportunity for contact with the offenders language and culture

33

Conditional Release

• goal is to allow an offender to return to society under supervision in preparation for an unsupervised release

34

Temporary Absence

• escorted and unescorted absences may be granted to allow offenders to participation in rehabilitation programs, obtain medical treatment, or attend significant family events

• all are eligible for absences based on medical, or humanitarian grounds

• all offenders are eligible for escorted absences from the time they enter prison

• unescorted absences are not given to maximum-security offenders

35

Day Parole

• an offender is released during the day to go to work or school but must return to the institution or halfway house each night

• this prepares the offender for full parole

36

Full Parole• any judge imposing a penalty of two or more years has the right to increase the minimum time that must be served before parole eligibility to ½ of the sentence or 10 years, which ever is less

• Information a judge would consider for full parole:1.conduct record of an offender2.results of personality assessment3.rehabilitation treatments received and progress towards rehabilitation

4.offenders appreciation of the nature and seriousness of the offence

5.prospects working for the offender in the community (housing and jobs etc)

37

Parole for Murder• Criminal Code says that those convicted of

first-degree murder and sentenced to life in prison are not eligible for full parole for 25 years

• those convicted of second-degree are eligible for parole between 10 and 25 years

• both groups may be eligible for unescorted temporary absences and day parole three years before their full parole eligibility date

• those sentenced to serve more than 15 years before being eligible for full parole may apply for a judicial review after 15 years (faint hope clause)

• judge must consider the character of the applicant, the offender's conduct in prison, the nature of the offence, any victim impact statement, and any other relevant information

38

Accelerated Review

• offenders serving their first term in a penitentiary and who did not commit a violent offence, a drug offence, a sexual offence, or a criminal organization offence, are eligible for an accelerated review provided that the judge did not set parole eligibility at one-half of the sentence

39

Statutory Release

• by statute, prisoners are entitled to statutory release--to spend the final one third of their sentence in the community under supervision

• exception are offenders serving life or indeterminate sentences

• statutory release is automatic, the parole board can add conditions to the release

40

Royal Prerogative of Mercy• federal government power• an inmate may have a fine or prison sentence rescinded (revoked) or may be issued a free pardon or an ordinary pardon

• a free pardon is granted when evidence shows that the convicted person is innocent

• an ordinary pardon is usually granted on compassionate grounds

41

Criminal Records• penalty for having a criminal record: embarrassment, loss of job opportunities, (can't be bonded), refuse entry to other countries

• bonding--insurance that guarantees the honesty of a person who handles money or other valuables

• when accused is given an absolute or a conditional discharge they remove the record from its computer

42

• for those who apply to the National Parole Board for a pardon their record is kept separate if successful

• apply for a pardon after a waiting period (3 to 5 years after completing the sentence) while being free of other convictions

• Human Rights Act of each province also prohibits employment discrimination against anyone with a criminal record

• Canadian Human Rights Act forbids discrimination based on a pardoned conviction