Legal Studies 3080
The Sentencing Process
Deciding on an appropriate sentence after an accused has
been found guilty of an offence is one of the most difficult things a
judge has to do. The judge must balance the safety of the community -
and the community's sense that justice has been done - with the best
interests of the offender.
This can be a very tricky task. A judge may, for instance, believe that a jail sentence would only turn a youthful offender into a hardened criminal who would cause society a great deal of harm once released. The public, meanwhile, might be calling for a lengthy jail sentence to serve the young criminal right and to lock him or her up so that no one else can be harmed.
To help with the task of making decisions on sentencing, judges turn to a number of sources. They may first order a pre-sentence report - a report prepared by a probation officer, which outlines such things as the offender's work record, education, family situation, health, and attitudes. A pre-sentence report will also make recommendations as to the type of sentence the offender should receive.
The next important piece of information judges consider is the offender's previous criminal record. The Crown presents this information to the judge along with a recommendation for sentencing.
|Teacher's Note||Do you remember Kevin, the young man convicted of two counts of dangerous driving causing death? At Kevin's trial, the Crown had asked for a sentence of 8 to 14 months in prison due to the seriousness of the case. The Crown felt that this would send a message to other young people and so act as a deterrent to similar behavior. The judge, however, rejected this recommendation.|
In recent years, an increasing amount of use has been made of victim impact statements . Put simply, victim impact statements allow the victims of crimes (and sometimes other people, such as family members) to explain the effect the crimes have had on their lives.
Something to Think About
Victim impact statements can be disturbing accounts of
how crimes have devastated the lives of those affected. Judges have
traditionally tried to make sentencing decisions based on reason and a
dispassionate assessment of the case. Do you think it is a good idea to
give victims of crime the chance to affect judges' decisions with impact
statements? Give reasons for your answer.
|While victims of crimes and their families often want to see those who have wronged them punished severely, this is not always the case. The turning point in the sentencing decision in Kevin's case, for example, came when the victim's families read a statement that they had prepared for the judge not to send Kevin to prison. The families felt that Kevin had suffered enough and that he would have to live with what he had done for the rest of his life. The judge was so moved that he chose to sentence Kevin to 750 hours of community service and three years probation.|
In helping the judge reach a sentencing decision, the
Crown prosecutor may provide other information that he or she thinks is
relevant in the case. If the defence lawyer disagrees with the Crown,
the Crown will be asked to substantiate the information. Offenders
themselves will also have an opportunity to make a statement to the
court. In it, they may explain what caused them to commit their crimes
and how they have tried to turn their lives around since. The Crown has
the same right as the defence to question the validity of such
statements and ask for substantiation.
In 1987 the Canadian Sentencing Commission was set up to
study sentencing and ways of improving it. From the commission's report
came a number of recommendations as to what judges should consider when
sentencing. Following are some of the suggested points to consider:
- whether the offender had previous convictions
- whether the victim provoked the offence
- whether the victim suffered substantial financial loss
- whether the offender was under stress at the time
- whether the offender has made restitution (repayment) to the victim