Sentencing Options. Introduction to Sentencing and Corrections Traditional Objectives of Sentencing

Transcription

1 Introduction to Sentencing and Corrections Traditional Objectives of Sentencing retribution, segregation, rehabilitation, and deterrence (general & specific) Political Perspectives on Sentencing Left Wing focus on rehabilitation focus on eventual reintegration into society supports community based sentences supports parole cognizant of detrimental effects of incarceration supports tailored and individualized sentences cognizant of maintaining some control offenders upon release Sentencing Spectrum focus on segregation Right Wing focus on deterrence (both specific and general) supports incarceration highly focused on safety of the community highly focused on recidivism (reoffence) rates focus on parity (equity of sentences) tends not to support parole may support capital punishment The Purpose of Sentencing (According to Section 718 of the Criminal Code of Canada)...to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Dividing the Responsibility Under our Constitution, responsibility for corrections is divided between federal and provincial governments. The Correctional Service of Canada is responsible for offenders serving sentences of two years or longer (including life sentences). Provinces are responsible for offenders sentenced to probation and prison terms of less than two years as well as youth corrections. Sentencing Options The National Parole Board makes conditional release decisions for offenders held in federal and territorial institutions and in provincial facilities of seven provinces (Quebec, Ontario, and British Columbia have their own parole boards for offenders in their custody). 1

2 Imprisonment the most serious sentencing option available in Canada. intended as a last resort (when less restrictive alternatives are inappropriate) courts are to consider all other available sanctions first maximum term of incarceration: summary conviction offences à six months. indictable offences à 2 years to life. sentences of less than two years are served in provincial prisons. sentences of two years or more are served in federal penitentiaries. Intermittent Sentence Where the court imposes a sentence of incarceration not more than 90 days, the court may order that sentence be served intermittently (i.e. on weekends). A probation order must accompany an intermittent sentence and is usually applicable only at such times the probationer is not confined. If the intermittent sentence is to be followed by a further probation, a second probation order is often made. Fines The most frequently used sentencing option in Canada; 45% of convicted adult offenders in Canada are fined (Canadian Centre for Justice Statistics, 1997, May). Any person convicted of an offence, except an offence punishable by a minimum term of imprisonment, may receive a fine in addition to, or in lieu of, any other sanction imposed. A court may fine an offender only if the court is satisfied that the offender is able to pay the fine or work it off in a fine option program. The maximum fine for summary conviction offences used to be $2,000.00, but changed to $5, in For more serious offences (indictable offences), there is no limit to the amount of the fine. An order will be made that: Fines Continued clearly sets out the amount of the fine, the way the fine is to be paid and the time(s) by which the fine, or portion of the fine, must be paid. A copy of the order will be given to the offender. A number of options are available to assist in the collection of fines: fed. and prov. governments can refuse to issue or renew permits or licenses until the fine is paid. fines can be enforced through the civil courts. What if the Fine Isn t Paid? If an offender, without reasonable excuse, refuses to pay or work off a fine, the offender will serve a term of imprisonment. The term of imprisonment is calculated as follows: the unpaid amount of the fine + the costs and charges of committing and conveying the defaulter to prison 8 hours per day X provincial minimum hourly wage The term of imprisonment served for not paying the fine cannot exceed what the court could have imposed at the time of sentencing for the original offence. Any payments of part of the fine, or work done in a fine option program, will result in a proportionate reduction of the prison term. s. 737 Criminal Code Victim Surcharge The court will also normally impose a victim fine surcharge. a victim fine surcharge is an additional payment of: up to 30% extra on top of a fine, or, in cases not involving fines: up to $ for a summary conviction up to $ for an indictable conviction This money goes into a special victims' fund to pay for programs for all victims of crime. 2

3 Community Service A fine option program is a program which allows offenders to work off their fines. A fine option program typically involves community service. Work is done in the community and credits are earned at a specified amount per hour. These credits go toward paying off the fine. The work may include snow shovelling, cleaning up the park or delivering meals to the elderly. Maximum number of working hours is 240. Maximum time span of community service order is 18 months. Restitution a payment made by an offender directly to the victim to cover expenses resulting from the crime, such as property loss or damage or personal injury available to victims of crime who have suffered property loss or damage or personal injury also available to persons acting in good faith who unknowingly become victims of criminal activity, ie. unknowingly purchasing stolen property, or loaning the offender money on the security of stolen property, which is later confiscated by police and returned to the lawful owner The amount of restitution is equal to the replacement value of the property. When someone is injured, the restitution may cover medical bills and lost income. Restitution for pain and suffering is not available through the criminal courts. Victims seeking compensation for pain and suffering must make their claims in civil court. Victims can make an application to the court for restitution. Restitution orders can be enforced by the civil courts. Considerations Aggravating factors (tending to increase sentence): actual or threatened violence previous convictions cruelty towards victim particularly vulnerable victim (very old, young, disabled, etc.) impediment of victim s access to justice multiple victims or multiple incidents substantial economic loss to victim Considerations Mitigating factors (tending to reduce sentence): absence of previous convictions offender is physically or mentally impaired offender is quite young or elderly offender acted under duress victim provoked the offender restitution was made to the victim by the offender offender played minor role in the offence breach of trust (victim had placed trust in the perpetrator) planned or organized criminal activity Suspended Sentences, Conditional Sentences, Discharges, and Probation Conditional Discharge This occurs when an offender is found guilty of an offence, but the judge decides to not enter a conviction against the offender. Rather, the offender is discharged on the conditions prescribed in a probation order. If an offender is convicted of a subsequent offence during the term of probation, the court may decide to revoke the probation order and impose any sentence that could have been imposed at the time the order was made. 3

4 Absolute Discharge This occurs when an offender is found guilty of an offence, but the judge decides to not enter a conviction against the offender. Rather, the offender is discharged with no conditions at all! A discharge can only be applied to cases where: no minimum sentence stipulated under the CC.; the maximum penalty is not greater than 14 years; the accused is not perceived as a danger to society. Usually applied to cases where: the accused has suffered greatly from publicity and trial; the accused may have already served time. Clarifying the Difference Between a Conditional Discharge and a Conditional Sentence, by Judge Joe Kenkel When an accused pleads guilty or is found guilty at the end of a trial, the court enters a finding of guilt. However, Section 730 of the Criminal Code says that, for certain offences, the court may decline to register a conviction and instead discharge the accused, either absolutely or conditionally on probation terms. The significance of not registering a conviction relates to a criminal record. If a conviction is registered, then that becomes part of a criminal record. If you receive a discharge, technically that is not a criminal conviction and while a record is kept of it for 3 years (conditional) or 1 year (absolute), after that it s automatically removed from the system and you don t have to apply for a pardon. Example: For an Assault, a court may grant the accused a conditional discharge and place the accused on probation for one year with an order to do 40 hours of community service. On the same facts, the court could also register a conviction, suspend the passing of sentence (i.e. a conditional sentence) and place the accused on probation for one year with the same 40 hours CSO. The sentences would look similar, but the Suspended Sentence would involve a permanent criminal record, whereas the Conditional Discharge would not. Some Points to Ponder, by Judge Joe Kenkel Under the YCJA young persons can now receive discharges. They couldn t under the prior YOA but it didn t really matter as Youth Court records were sealed at 18 anyway. Not clear why they made that change. The USA doesn t recognize conditional discharges and sometimes absolute discharges so if you say you don t have a record at the border and you have a conditional discharge, while the answer is technically correct here you may be refused entry to the USA or worse for not telling them about what they view as a criminal record (if you cross a border while the discharge is still on the system) Hypothetically If a student is about to go to the US on an NCAA scholarship and they commit a serious offence that normally would not receive a discharge, should they get one anyway to permit them to pursue that opportunity? Would you make them do something before being sentenced to earn that unusual sentence? Would that be giving elite athletes, business travelers and others breaks that the average person doesn t get? If yes, then is that fair? Suspended Sentence Note: S. 737(1)(a), regarding Suspended Sentences was in force up to September 3, This section has been replaced by S. 741 regarding Conditional Sentences. Conditional Sentence On September 3, 1996, Bill C-41 was proclaimed in force, providing for the conditional sentence, a new sentence of imprisonment, now included in Part XXIII of the Criminal Code of Canada. This legislative innovation was intended by Parliament to reduce the rate of incarceration in provincial institutions while promoting principles of restorative justice. It is thought that the conditional sentence scheme was adopted in order to introduce an element of flexibility; stated otherwise, the time-honoured scheme was unduly rigid. 4

5 Conditional Sentence Conditional Sentence Outlined under Section of the Criminal Code, the conditional sentence provides courts an alternative to incarceration. Conditional sentences allow custody-bound offenders to serve their prison terms in the community under strict conditions. To be eligible for a conditional sentence: Section of the Criminal Code of Canada Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (a) imposes a sentence of imprisonment that is less than two years, and no minimum sentence prescribed by the Crim. Code for the offence; the judge decides that the sentence should be less than two years; offender is not perceived as a danger to the public; and the judge is convinced that a conditional sentence is consistent with the purposes and principles of sentencing set out in the Criminal Code. An offender who breaches any mandatory or optional conditions attached to the sentence order may be required to finish serving the term in a correctional facility. (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the purposes and principles of sentencing set out in sections 718 to The court may, for the purposes of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section Meant to reduce the incarceration rate of adults in Canadian prisons, a rate that is one of the highest in the western world. Adult Probation Animal killer Kayla Bourque released to live in Vancouver Adult probation is a court disposition that authorizes the offender to remain at large in the community subject to conditions prescribed in a probation order. In Ontario, Probation Officers in 127 offices provide supervision to approximately 53,000 adult probationers on any given day. When Probation Can Be Used: Probation can be ordered, for a period of up to three years, by way of a conditional discharge or conditional sentence, or it may be included with any one of the following dispositions: fine; imprisonment for a term not exceeding two years; Video Link: intermittent sentence; and Revocation of the Probation Order: When is it mandatory? Offenders with a conditional discharge, conditional (aka suspended) sentence, or intermittent sentence must be placed on probation. The Probation Order: When a person on probation with a conditional (suspended) sentence or a conditional discharge has been charged and convicted of a subsequent offence during the term of the order, the Crown Attorney may apply to the judge to have the probation order revoked. The court may then: cannot remain in force for more than three years; cannot be made to run consecutive to another order (although orders do run concurrently where the offender is bound by a number of different orders at the same time); and end only on the expiry date unless the court revokes or terminates the order early. The court can also, at any time, decrease the term of probation. for a conditional sentence: impose any sentence that may have been imposed had the passing of sentence not been suspended; or for a conditional discharge: revoke the discharge, convict the probationer on the original charge, and impose any sentence that could have been imposed had the discharge not been granted initially. 5

6 Enforcement of the Probation Order: Failure to comply with probation without a reasonable excuse is a hybrid offence (Breach of Probation) summary conviction: max. penalty 18 months in jail and/or a fine not exceeding $2, indictable conviction: max. penalty not exceeding 2 years in jail. Revocation is NOT Double Jeopardy! A conditional (aka suspended ) sentence is not considered a final sentence, since an accused who is convicted of breaching the conditions of a probation order may, in addition to being sentenced for the offence of breach of probation, also have the conditional (suspended) sentence revoked. Once a conditional sentence is revoked, the court which originally sentenced the accused may re-sentence the accused. This has been held not to be a case of double jeopardy because a suspended sentence is not a final order. Kayla Bourque, animal killer, arrested for breach of probation Bourque was arrested over an alleged offence committed between March 10-16, Link: Conditional Sentencing: A Focus on the Conditions Mandatory Conditions - The offender must: keep the peace and be of good behaviour; go to court when required; report to a criminal justice system supervisor regularly; stay in the area under the court's authority and get written permission to travel outside this area; and tell the court or criminal justice system supervisor before moving or when changing jobs. Optional Conditions They offender may be required to: pay the victim restitution; make other reparations to the victim or to the community; participate in a treatment program (ie. alcohol, drug, anger management); provide support for any dependents (such as a child or spouse); do up to 240 hours of community service work; or respect a curfew (stay at home except for work or approved activities). The offender may be prohibited from: using alcohol or drugs, and possessing a gun, rifle or other weapon. Restorative Justice Restorative justice invites the victims of crime and the community to participate in a process of dealing with offenders and repairing the harm caused by the offender. Retribution and punishment, key elements of traditional criminal justice processing, play less of a role. Restorative justice programs have spread throughout North America, Europe and elsewhere around the globe. One such program is the Restorative Resolutions (RR) program that operates in Winnipeg. Parole Method: Offenders for whom the Crown was seeking sentences of at least six months were referred to RR. Upon further screening, a community-based plan was developed with input from the victim(s) and submitted to the Court. If endorsed by the Court, RR staff implemented the plan and supervised the offender in the community. Restorative justice influenced paras e & f of Section 718 CC. 6

7 SERVING A FEDERAL SENTENCE ELIGIBILITY FOR UNESCORTED TEMPORARY ABSENCE (1/6th of sentence or three years, which ever is shorter; CSC or NPB decision) ACCELERATED ELIGIBILITY FOR DAY PAROLE Under the Accelerated Review Process for low-risk offenders. (1/6th of sentence; NPB decision) SENTENCE BEGINS THE COMMUNITY ELIGIBILITY FOR DAY PAROLE (six months prior to 1/3rd of sentence; NPB decision) END OF SENTENCE (full release once entire sentence has been served) STATUTORY RELEASE (2/3rd of sentence; detention possible for some offenders) ELIGIBILITY FOR FULL PAROLE (1/3rd of sentence; or 7 years, whichever is less. NPB decision) Temporary Absences Temporary Absences may be granted to offenders for medical, administrative, community service, family contact, and personal development reasons (relating to rehabilitation) where it is considered that the inmate will not present an undue risk to society. An escorted temporary absence (ETA) may be granted at any time during the sentence while an unescorted temporary absence (UTA) may be granted after an offender has served one-sixth of the sentence or six months, whichever is greater. Temporary Absences are authorized by either the Warden of the penitentiary or by the National Parole Board (NPB), depending on factors such as the type of release, the offender s sentence and security classification. Offenders classified as maximum security do not qualify for UTAs. The success rate for ETAs and UTAs is over 99 per cent. This means that offenders do not commit a new offence nor do they break any of the conditions attached to their release. Work Release Work release allows an offender, classified as minimum or medium security and who is judged not to pose an undue risk, to do paid or voluntary work in the community under supervision. Besides offering practical experience to the offender and assistance to the community, work releases contribute to public safety, because they assist an offender s reintegration into society and reduce the chances of reoffending. Day Parole Day parole allows an offender to participate in community-based activities to prepare for release on full parole or statutory release. Generally, offenders become eligible to be considered for day parole six months before their full parole eligibility date. A new Day Parole program was introduced in Bill C-55 and came into force on July 3, This "Accelerated Parole Review" applies only to first time, non-violent, federal offenders. These offenders are reviewed for Day Parole after having served 1/6 th of their sentence. Those imprisoned for either first or second-degree murder become eligible for day parole three years before they are eligible for full parole. The offender is usually required to return to an institution or a halfway house each night. About 85 per cent of day parolees are successful. Full Parole Inmates are normally eligible to be considered for full parole by the NPB after serving one-third of the sentence, or seven years, whichever is less. Under the CCRA, judges have, at the time of sentencing, the option of lengthening the time that violent and serious drug offenders spend in prison by delaying eligibility for full parole until they have completed one-half of their sentence. Offenders sentenced to life for first degree murder or high treason are not eligible to be considered for parole until they have served 25 years. Those sentenced to life for second degree murder may apply for parole after serving between 10 and 25 years, as determined by the Court. However, anyone convicted of murder who must serve more than 15 years before full parole eligibility, may apply after serving 15 years for a judicial review by a Superior Court judge and a jury who may reduce parole eligibility dates. Offenders who are serving life sentences and who are granted parole remain on parole for the rest of their lives. On average, approximately 80 per cent of those released on full parole are successful. Statutory Release By law, most offenders who are serving sentences of fixed length, and who have not been granted parole or had their parole revoked, must be released on statutory release after serving two-thirds of their sentence. Although statutory release decisions are not made by the NPB, the Board may add conditions to the release to protect society and assist the offender to adjust to the outside world in a law-abiding fashion. Failure to comply with these conditions can result in a suspension by the Correctional Service of Canada (CSC) and revocation of the release by the NPB. The offender would then be returned to a correctional facility. If the NPB believes that the offender is likely to cause serious harm or commit a serious drug offence before the expiration of the sentence the Board may, upon referral from CSC: grant the offender "onechance" statutory release; order the offender to live under strict residential conditions; or order the offender to be detained in penitentiary until the end of the sentence. Statutory release does not apply to offenders serving life or indeterminate sentences. 7

8 In Summary Spectrum of Correction Options (In order of proximity to incarceration) Crim. charge Trial; accused found guilty Discharge; (conditional or unconditional) Accused released with no conviction. Probation; (always conditional) Accused convicted, but released. Incarceration; convicted serves time within a correctional facility. Parole (released on conditions) Day Full Statutory (1/6 to (1/3 or (2/3) 1/3) 7years) Free! 8