What is Sentencing?
Sentencing is the process by which a judge decides what consequences or sanctions are appropriate for youth if they are found guilty of a crime or have pled guilty. The YCJA has a set of principles to guide judges in deciding on a fair and appropriate sentence. Sentencing is meant to hold youth accountable through fair consequences or sanctions that ensure meaningful consequences for youth and promote rehabilitation and reintegration into society for youth charged with a crime.
Did You Know?
Under the old Young Offenders Act (the Act that was in place before the new Act):
- For 8 of the 9 most common crimes in youth court, youth got longer periods of custody than adults who got custody for the same crime.
- Youth generally spent more time in custody than adults with similar sentences due to the terms for an adult conditional release.
- Eighty percent of custodial sentences for youth were for non-violent offences.
- Almost half of youth sentenced to custody were given custody because they failed to comply with a disposition order, or settlement. They were brought back to court on a breach. A breach is when a youth fails to obey what has been ordered in court. For instance, the youth may have a curfew or an order not to drink, but is caught past his or her curfew or caught drinking.
What are Some of the Main Considerations in Sentencing?
- Not be more severe than what an adult would get for the same crime
- Be similar to youth sentences given in similar youth cases
- Be in line with the seriousness of the crime and the degree of your responsibility for the crime
- The degree of participation
- The harm done to the victim
- Whether the harm was intentional or reasonably foreseeable
- Previous findings of guilt
- Any other aggravating or lessening circumstances
- Be within the limits of proportionality. This means that the sentence needs to be "in line" with the seriousness of the offence and the degree of responsibility youth had in doing the offence
- Be the least restrictive alternative
- Be the sentencing option that is most likely to rehabilitate and reintegrate youth
- Give youth a sense of responsibility and an acknowledgement of the harm done by the crime
When sentencing youth charged with a crime, the judge will also consider:
- All other options that can hold a youth accountable besides custody
- Sanctions or consequences other than custody, with particular attention to the needs of Aboriginal youth
- Whether custody is being used as a substitute for child protection, for mental health, or any other social measure
Not putting a youth in custody unless:
- The youth committed a violent crime
- The youth failed to comply with non-custodial sentences
- The youth committed a serious crime for which an adult could serve more than two years and the youth has a history that shows a pattern of crimes
- The youth committed a serious crime and it is difficult to impose a sentence other than custody. The judge must give reasons for doing this
There only needs to be one of these conditions for a judge to be able to impose a custodial sentence. If a judge does impose a custodial sentence, he or she needs to give reasons for doing so. Custody is used mainly for violent and serious repeat offenders. Usually, about one-third of custodial sentences are served and supervised in the community. The judge must not think of that when deciding on the length of the sentence.
- Principles guide judges in deciding on a fair and appropriate sentence
- The purpose of sentencing is to hold the youth accountable through "just sanctions" that ensure meaningful consequences for them and which promote their rehabilitation and reintegration into society
- Sentences should not be more severe than what an adult would receive for the same offence and should be similar to youth sentences in similar youth cases
- Sentences should be proportional to the seriousness of the offence and the degree of responsibility of the youth
- The sentence should be the least restrictive alternative most likely to rehabilitate and reintegrate the youth and should also promote in the youth a sense of responsibility and an acknowledgement of the harm done
- Before custody is considered, all reasonable alternatives that will hold the youth accountable should be used
- Sanctions other than custody should be considered for all young persons, with particular attention to the circumstances of Aboriginal youth
A youth cannot be committed to custody unless:
- A violent offence was committed,
- The youth failed to comply with non-custodial sentences,
- The youth committed a serious indictable offence where in similar circumstances an adult could serve more than 2 years and the youth has a history that indicates a pattern of offences, or
- In exceptional cases, where in the circumstances of the indictable offence it would be difficult to impose a sentence other than custody
- Custody is to be used primarily for violent and serious repeat offenders
- Approximately one-third of custodial sentences are served and supervised in the community