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PSY328H1 (73)

Lecture #7.docx

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William Huggon

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Lecture #7: Sentencing, parole, and psychology (The Canadian System) Plan for today - The purpose and principles of sentencing in Canada - Sentencing options - Factors affecting sentencing decisions - Parole Purpose and principles of sentencing in Canada - Sentencing (ON TEST) o The judicial determination of a legal sanction upon a person convicted of an offence  The judge decides some kind of punishment for someone convicted of an offence (the punishment for a crime)  So this doesn‟t mean jail time, it just means punishment for a crime  going to jail is the last time - Bill C-41 (1996) o Most comprehensive reform of the law of sentencing in Canadian history o Created 718 of the Criminal Code of Canada The fundamental purpose (718) - “of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions that have one or more of the following objectives:” Reasons for sentencing (purposes) (VERY IMPORTANT) - Know six objectives - 1. To denounce unlawful conduct; o We want to make sure that people know that they shouldn‟t do things, because it‟s bad - 2. To deter the offender and other persons from committing offences; o Also known as specific and general deterrents  (the individual who committed the crime and others who are thinking of doing it) - 3. To separate offenders from society, where necessary; - 4. To assist in rehabilitating offenders; o One of the big basis points for the Canadian system (the whole idea of rehabilitation) o The difference between Canada and the states (on a continuum)  Focus of American system  you committed this crime, we‟ll punish you  Focus of Canada  who are you, what were the conditions, can we rehabilitate you, should we punish you? (focus on rehabilitation) - 5. To provide reparations for harm done to victims or to the community; and o If you commit a crime, you have to pay a fine  because the majority of crimes aren‟t violent (i.e. shoplifting, petty crime) - 6. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community o Also related to rehabilitation Reasons for sentencing - Problems? o They‟re all competing objectives  which one do you use? i.e. rehabilitate them, fine them, separate them from society, deter other offenders?  In general it‟s a little bit difficult Problems in our sentencing - Sentencing disparity o Any difference in severity between the sentence that an offender receives from one judge on a particular occasion and what an identical offender with the identical crime would receive from either the same judge on a different occasion or a different judge on the same or different occasion  Idea that if you‟ve committed a very similar crime and you‟re a very similar offender and circumstances, the idea is that you should get the same sentence  i.e. manslaughter in BC versus manslaughter in Ontario  one gets 4 months, other gets 25 years o single most important problem with sentencing in Canada Sources of sentences disparity - extra-legal factors from two major sources: o systematic disparity o unsystematic disparity Systematic disparity - Refers to consistent disagreement among judges about sentencing o One judge may want to punish them, whereas the other wants to rehabilitate - Could stem from personality, philosophy, experience Unsystematic disparity - Refers to a given judge‟s inconsistency over occasions in judging - Same judge on a very similar case, and they make different decisions - Could stem from mood, focusing on irrelevant stimuli - Much worse o E.g. proff and his driver‟s license Mcfatter (1986) - Looked at real judges - Bunch of problems in this study o Participants were 6 judges  not enough people  But still pretty impressive - 13 crime scenarios o Given brief details of the crime o Wide range of crimes  from petty to murder - Rated various aspects of crime - Returned two months later and repeated the procedure Results - Good  good deal of agreement about severity of crime; however, there was sentencing disparity! - Sentences for the mid-range crimes (i.e. armed robbery on the street) ranged from probation (i.e. follow them around) to 25 years in prison o Sentencing disparity - Sentences were much more lenient in phase 2 o These are real judges and they came in for a psych experiment  first time they take it really seriously, second time they don‟t care as much  Know all six purposes! The fundamental principle - Section 718.1 of the Criminal Code o “A sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender” o In the American system, it‟s only proportionate to the gravity of the offence  Therefore they follow a more harsh and punitive system - 718.2 A court that imposes a sentence shall also take into consideration the following principles: o A) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender  Mitigating:  A circumstance that doesn‟t exonerate the person, but which reduces the penalty associated with the offence  They still committed the crime, they‟re still found guilty for the crime, but it‟ll reduce the penalty for the offence  Euthanasia o You‟re trying to help them out  not found guilty at all  i.e. Young age or first time offender o two people that both commit grand theft auto and this person‟s doing it because they‟re a career criminal, and the other‟s doing it because it‟s a joyride  in the states it‟s not/might be taken into account o The teenager may get a fine, have to apologize to a neighbor, etc.  i.e. Self-defense  shall be deemed aggravating circumstance if:  i. evidence that the offence was motivated by bias based on the race, nationality, color, religion, sex, age, mental or physical disability or sexual orientation of the victim , or  ii. evidence that the offender in committing the offence, used their position of power o i.e. Sex crime (normal) vs. sex crime (used position of power)  i.e. they used their position of power  do this or you won‟t get the promotion (they‟ll get a harsher punishment)  committing the exact same crime as someone else, but it‟s way worse because of the moral implications  normally if you‟re on trial for a crime, the jury‟s not supposed to know of previous crimes ,the judge is allowed though and should take it into account o in Canada, we have hate crime legislation, but only for spreading hate propaganda that might lead to somebody being hurt o however, if you assaulted someone and it‟s based on race (hate), you‟re still charged with assault, but the sentence is going to be different  because this one is aggravated (you still get the same verdict though) Aggravating circumstances: crimes motivated by hate - R. v. Miloszewski, Synderek, Nikkel, Leblanc, and Kluch (1996) - Manslaughter case - 5 young men pleaded guilty to manslaughter, beat an Indian to death - Hated racial minorities and discussed committing crimes against this minority - So the crown was able to establish that the crime was racially motivated - The sentence from manslaughter is anywhere from a suspended sentence to life in prison  but the average is 5 years o 2 of them got 18 years, and 3 of them got 15 years - Section 718.2 A(i): o Crimes motivated by hate or bias should result in the imposition of a harsher than average penalty o Judge‟s concluding statement :  “What can be achieved by what I am doing today is to send a loud, clear, and unequivocal message, not only to these five accused, but to others who share their views, that if they commit acts of violence against persons out of hatred they will be condemned and punished severely”  General and specific deterrents o  note, pleading guilty is also a factor! o D and e weren‟t used - Case of assault o He rebutted with saying that they were using racial slurs  he was a black man o Both women are both about 5 foot tall, and he was around 6 foot 2 o They got to park in the handicap spot, and he didn‟t like that because it was a prime spot for picking up kids o He was found guilty of assault, the justice even said that he‟s not a really nice man  lied to court, bring up evidence that they were being racist o He was found guilty of assault, but he didn‟t get any aggravated charges for hate (no evidence to say that it was sexually orientation motivated)  needs to show that somewhere in the background that there is a history of hate  if he was to ask for six sentencing purposes  be able to talk about mitigating and aggravating separately Sentencing principles 718.2A - b) sentence should be similar for offenders committing similar offences under similar circumstances - idea that someone should only be punished similarly to other people depending on the circumstances o i.e. if two different people committed second degree murder, under the same circumstances, they should get the same punishment o so not only the crime, but also the circumstances behind the crime should be the same - c) where consecutive sentences are imposed, the combined sentence should not be unduly harsh or long o i.e. if you committed 5 thefts in one day and were charged with 5 charges of theft for 5 years each, you should not be sentenced to 25 years in total o usually in Canada, unless it‟s really important to do this, if you‟re given life in prison with no chance of parole, there‟s no point in given three life sentences - d) an offender should not be deprived of liberty if less restrictive sanctions are appropriate under the circumstances o least restrictive facilities r
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