Sentencing

Traditionally sentencing has been reserved for the court and courts have enjoyed discretion to impose sentences. In Canada there is still much judicial discretion as Parliament frequently defines offenses broadly to cover behavior of varying degrees of culpability and only sets high and infrequently maximum penalties to limit the judge’s sentencing discretion. In contrast, many US jurisdictions rely more on statutory gradations of crimes and minimum sentences attached to each degree of any particular crime.

In Canada, sentencing is not only discretionary because judges have few statutory limits but also because they can emphasize multiple purposes or justifications for punishment, i.e., sentencing depends on what a judge believes is more important in a particular case.

Proportionality principle

The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender.

Purpose of sentencing: to respect the law and the maintenance of a just, peace and safe society by imposing sanctions with one or more of the following objectives:

Retribution (denounce unlawful conduct)

Deterrence (both specific and general)

Rehabilitation of the offender.

Separation of offenders from society.

Reparations for harm done to victims or the community.

Promotion of sense of responsibility in offenders and acknowledgement of harm done to community and victims.

Other principles:

Principle of parity: a sentence should be similar to sentences imposed on similar offenders for similar offenses committed in similar circumstances.

The totality principle:

Where consecutive sentence are imposed (for more than one offense) the sentence should not be unduly long or harsh.

Principle of restraint in punishment

No incarceration if less restrictive sanctions may be appropriate, with particular attention to the circumstances of aboriginal offenders.

PROCEDURAL ISSUES

Guilty plea:

No trial, directly to sentencing stage. It is an important mitigating factor as it shows remorse and saves the victim and the state the costs of a trial.

Sometimes a guilty plea is accompanied by a joint submission by the Crown and the accused concerning sentencing, which is not binding.

Sentencing hearing:

It is less formal than a trial. The accused retains procedural rights, e.g., to call evidence, cross-examine witnesses and address the court. If there is a dispute about a fact, the party alleging it must establish it on a balance of probabilities, except that the prosecutor must prove an aggravating factor or a previous conviction beyond reasonable doubt.

Judges may also call witnesses and they are required to give reasons for their sentences.

Victim impact statements and reports by probation officers.

Sentencing circles when sentencing aboriginal offenders.

Sentencing appeals

Both the Crown and the accused can appeal the sentence. The Court of Appeals has a broad jurisdiction to consider the appropriateness of the sentence within the limits prescribed by law. But the Supreme Court held that absent (i) an error in principle, (ii) failure to consider a relevant factor, or (iii) overemphasis of the appropriate factor, a Court of Appeal should normally not intervene.

Aggravating and mitigating factors

Prior convictions are aggravating factors.

Good character, youth, old age, ill health, remorse and early guilty plea are mitigating factors. Provocation.

Constitutional considerations

Section 12 of the Charter prohibits cruel and unusual punishments.

Alternatives

· Absolute and conditional discharges: if the offense is subject to less than 14 years of imprisonment and there is no minimum sentence.

· Probation

· Conditional sentences of imprisonment: if convicted to less than 2 years, i.e., house arrest.

· Fines

· Restitution

· Crown pardons.

SENTENCING MODELS

Indeterminate sentencing models:

The offenders are more likely to participate in their own rehabilitation if they can reduce the amount of time they have to spend in prison. Inmates on good behavior will be released early, while recalcitrant inmates will remain in prison until the end of their terms. In Canada, the Criminal Code rarely sets lower limits, leaving the judge to select a penalty within a range that has no lower limit but a fairly high maximum to be reserved for the worst case scenario. ("The defendant shall serve not less than 5 and not more than 25 years in prison.")

Structured sentencing:

Determined sentencing

A convicted offender is sentenced to a fixed term, which may be reduced by good time or earned time.

Mandatory sentencing: a fixed sentence regardless of the circumstances.

No leeway in sentencing.

Sentencing guidelines:

They specify a sentencing range for each criminal offense from which judges must choose. If a particular case has atypical features judges are allowed to depart from the guidelines.

The problem in the US is that sentencing hearings are not before a jury and they are based on presentence reports made by the probation officer on the basis of evidence (new or only mentioned in the trial) which does not have to be proved beyond a reasonable doubt. In October the US Supreme Court will hear a case to determine the legality of the Federal Sentencing Guidelines (Booker case).