Chapter 9: Sentencing and Punishment
• Sentencing is the process by which a judge imposes a punishment on a convicted criminal.
• The punishments available to the sentencing judge depends on the offence committed by
• Sentences can include incarceration, fines, community service orders or probation.
• Judge’s decisions can be based on a number of factors such as objective factors like the
seriousness of the offence and characteristic of the offender, or the pre sentence report.
• Presentence reports are prepared for judges by probation officers in order to help judges
determine an appropriate sentence.
• The court can request a presentence report only after an offender has been found guilty
or enters a plea of guilty.
• Age, maturity, character, behavior, history are often taken into account.
• The Philosophical Rationale of Sentencing
• A consistent finding concerning public opinion of sentencing in Canada, the US, and the
UK is that sentences are not harsh enough.
• Most Americans believe that the offender should be punished appropriately for what they
• The majority of American’s support the justice model over rehabilitation, but 61% also felt
that most or all offenders should be rehabilitated.
• Many Canadian’s view sentencing as the most important stage in the criminal justice
system, since at that point the offender gets punished.
• A judge may decide to combine certain punishments such as a fine and a probation order,
which is known as a split sentence.
• Critics argue that sentences are too lenient or too long, as it is very rare that every one
• Punishing offenders serves two ultimate purposes:
• The deserved infliction of suffering on evil doers and the prevention of crime.
• Four rationales have been given for punishment imposed by the courts: deterrence,
rehabilitation, selective incapacitation, and justice.
• By punishing an offender, the state indicates its intent to control crime and deter potential
• Deterrence is the oldest of the four main sentencing goals, as it refers to the protection of
society through the prevention of criminal acts.
• Too lenient of a sentence might encourage more people to engage in criminal activity
because they would not fear punishment for their offence; too strict could impose
punishments that are regarded as unfair, which could increase criminal activity.
• For the deterrence model to work, it must strike balance between fear and justice among
both offenders and lawabiding citizens. • There are two types of deterrence: specific and general.
• Specific attempts to discourage through punishment to an individual offender from
continuing another crime.
• General refers to a sentence that is severe enough to stop other people from committing
• It has been shown, that specific deterrence rarely works.
• Relies on the certainty and speed of punishment.
• Selective Incapacitation
• Removal or restriction of the freedom of offenders, making it almost impossible for them to
commit crime during their period of incarceration.
• An offender who is considered a significant risk to society may be sentenced to a long term
• Incarcerating those individuals who commit the most heinous or the greatest number of
criminal offences is thought to reduce the crime rate.
• The goal is to prevent future crimes by imprisoning individuals on the basis of their past
• This is achieved mainly by imprisoning offenders for lengthy periods of time by
implementing punishments such as the three strikes law in the US.
• Favours much longer sentences.
• Critics argue that it is flawed because it does not include proportionality for specific types
of criminal offences.
• Another argument is society is only protected when the offender is in prison, and some
argue that after they have served their time, they may actually be more predisposed to
committing more crime.
• A sentencing approach that emphasizes rehabilitation is based on the belief that many, but
not all, offenders can be treated so that when they are released they will live crime free in
• Attempts are made to “correct” the behaviour and personality of offenders through a
variety of programs.
• Supporters argue that it is fairer and more productive to treat certain offenders rather than
punish them without treatment.
• The purpose of this approach is to treat the social and psychological problems of offenders
in hope of returning them to society as law abiding citizens.
• Rehabilitation based sentencing is built on reform in the future rather than on the criminal
• The success of rehabilitation programs has been strongly contested.
• Recent findings show that it can help if the right programs are used.
• These sentences don’t always include imprisonment. • The Justice Model
• Offenders should be punished no more or less severely than their actions warrant.
• The severity of the sentence should depend on the severity of the crime.
• This approach specifies that all punishments should be equally and fairly given to those
who have committed the same crime.
• Focus on the crime committed and not the individual.
• Extralegal factors such as race, gender and social class are not to be considered.
• Different individuals who commit the same crime, would only receive different sentences
because of aggravating or mitigating factors.
• Focuses on the individual’s past behaviour as the justification for sentencing rather than
his or her future criminality and the protection of society.
• Believes that sentences, while determinate, should be shorter than longer.
• Focuses mainly on repairing the harm that has been done as a result of a crime.
• This is to be accomplished by examining the harm done to the victim and to the
• There shouldn’t be a minimum punishment for offences.
• Fines, community service, compensation, reconciliation, and apologies are to be preferred
over imprisonment for many crimes.
• Parsimony criminal justice authorities must be able to justify the sentences handed out.
• Control over those who have power by virtue of their positions within the criminal justice
• Reprobation the criminal justice system should place offenders in positions where they
can experience community disapproval.
• Reintegration offenders back into society.
• Shorter sentences.
• Healing is a broad notion that encompasses restorative justice.
• Reintegration of victims and offenders at the individual and community levels.
• Concerned with reasonable processes or ceremonies to resolve conflicts with more than
• Process of negotiation and agreement between parties in a conflict. Searching for the truth
encourages a better understanding of their own behaviour.
• Native Law Centre various options available to sentencing circles:
• Peer counseling, community service work, mediation, aboriginal spiritual activities, talking
and healing circles.
• How do Judges Decided on a Sentence?
• Their options are restricted by law referred to as the structure of sentencing.
• Impossible to sentence an offender to life imprisonment for a summary offence. • They do have certain parameters within which they can individualize sentences on the
basis of the offender’s characteristics as well as mitigating and aggravating factors.
• In some cases such as 1 and 2 degree murder and manslaughter, there are minimum
sentences that the judge cannot change.
• Sentencing principles that a judge must follow:
• Prevalence of crime in an area is not to be the primary consideration in sentencing.
• A custodial sentence on a first time offender should not be imposed without either a pre
sentence report or some other very clear information about the accused background and
• Proportionality requires the sentence to reflect the seriousness of the offence, the
accountability of the offender, and the harm caused by the offence.
• The role of the courts requires the imposition of appropriate sentences.
• Judges have a large amount of discretion.
• For most offences, the Criminal Code specifies a maximum punishment.
• Sentences are governed by factors such as:
• The discretion given in the statues in relation to the particular offence.
• Rules and principles that offer guidance to the judge as to which outlooks should be used.
• The personal characteristics of the judge.
• Since they have a number of sentencing options available to them, they must first
determine what they hope to accomplish with the sentence.
• Sentencing can be defined as the judicial determination of a legal sanction to be imposed
on a person found guilty of an offence.
• A disposition refers to the actual sanction imposed in sentencing or the judicial
determination of legal sanction to be imposed on a person found guilty of an offence.
• PEI has the highest rate of incarceration.
• The lowest rates were in New Brunswick and Nova Scotia followed by Saskatchewan and
• If a particular jurisdiction has a higher than average percentage of more serious crimes, it
may also have a higher rate of incarceration.
• Different areas punish different such as PEI where first time impaired driving offenders
commonly receive a period of incarceration and because this category of offences
accounts for almost 30% of all guilty offences in the province, their average is higher.
• Sentencing Options
• Imprisonment can be served in a federal or provincial correctional facility. Government
has been trying to limit the use of imprisonment except for the most serious offences.
• Intermittent Sentences These sentences allow offenders to serve their time on an
intermittent basis such as weekends, so that they can continue to engage in other activities
such an employment. By law, such sentences are limited to 90 days.
• Fines These can be given out by judges in combination with incarceration and probation
or independently of other types of punishments. When only a fine is given, the offender is
not believed to be a threat to the community. • Restitution and Community Service restitution and community service are paid to injured
parties. These punishments are also referred to as reparations. Restitution is made directly
to the victim community service is an attempt to make the offender do something that will
benefit the community.
• Probation Offender are allowed to spend their sentence or part of it in the community
under supervision, provided that they follow certain conditions set by the court.
• Restorative Justice Some judges feel that when a crime has been committed, the
relationship between the offender and the victim can be healed by having them meet and
discuss the offence.
• Absolute and conditional discharge An offender who receives an absolute or conditional
discharge is not considered to have been convicted of an offence. A conditional discharge
means that an offender is discharged with conditions and will be supervised as if on
probation. An absolute discharge means that the offender does not need any supervision.
• Communitybased sanctions this approach emphasizes noncriminal alternatives to
traditional punishments, such as substance abuse programs.
• Conditional sentence Execution of the prison sentence is suspended. More serious than
probation, but less serious than imprisonment.
• The Sentencing Process
• A pre sentence report is a very valuable document for judges.
• It is complied by a probation officer and these reports provide relevant information about
the crime, the impact of the victim and a large amount of information on the offender.
(where the individual is employed, family support).
• A joint submission by the Crown and defense lawyer may recommend a sentence. This is
usually the result of a plea bargain struck between the prosecution and the defense.
• The judge does not have to accept these recommendations, but the usually will if it will
• Judge’s will also consider t