Youth Criminal Justice – Sentencing Process

What happens when I am found guilty?

The judge may decide that there should be a conference held to consider what an appropriate punishment would be.

The judge will also consider anything that you and your lawyer, your parents / guardians, and the prosecutor tells the judge about you and you will all have a chance to make suggestions to the judge about the appropriate sentence for you.

May the Judge consider anything else in deciding the appropriate punishment? 

Yes. The judge may also consider a Pre-Sentence Report. a medical or psychological report, and any other relevant information.

Conferences 

A conference is a group of people who meet and then give advice to the judge about many different parts of the court process including sentencing.

Many different people may sit on the conference. It may be the same as a youth justice committee if there are youth justice committees in your province or territory. It may have various people from the community involved, including police officers, teachers, youth workers, the victim, support people for the victim,  you, your family, support people for you, elders in your community, or anyone else who would have something to add to the conference.

Pre-Sentence Reports 

A pre-sentence report is a report about your personal life, including your family life, or your school life, or employment, past and present. Someone will investigate and give a report to the judge (usually in writing) if the judge wants more information about you before deciding on a sentence.

Often the reports are prepared by probation officers who may have an opinion about what sentence would be best for you.

The judge may want a pre-sentence report no matter what sentence they are thinking about giving you, but the judge must get a pre-sentence report if they are thinking about giving you time in custody.

The person who writes the report will meet with you, and other people including your parents / guardians, other family, teachers, other adults who know you, the victim, and will include in the report any relevant information gathered in these meetings.

The report will also contain:

• the recommendations from a “conference”, if one was held,
• your age, maturity, character, behaviour, attitude, and willingness to make up for your offence,
• your plans for the future, especially for getting yourself together,
• your history of offences and sentences,
• any history of  alternative measures, or extra-judicial measures programs,
• any services available in your community and your willingness to participate in those services,
• your relationship with your parents and / or other family members, and
• your school and employment record.

Usually a probation officer will prepare this report. You and your lawyer, and the prosecutor will get a copy, and your parent(s) / guardian(s) may get a copy of the Pre-Sentence Report.

If you disagree with the Pre-Sentence Report, you will have a chance, through your lawyer, to question, or “cross-examine” the person who wrote the report. It will be prepared after you are found guilty but before you are sentenced.

If the judge orders that a pre-sentence report be prepared, you will not be sentenced right away and your case will be adjourned to give the person time to prepare the report. So, even though you have been found guilty you will still have to wait a little while to find out what your sentence will be.

Whether you can go home while you wait for the Pre-Sentence Report to be completed will depend on whether or not the prosecutor can show that you should be kept in detention.

Medical or Psychological Reports 

The judge may also want to have a medical or psychological report about you. A medical or psychological report is prepared if you and the prosecutor agree, or if the judge thinks that you are suffering from a physical, mental, emotional or psychological problem, or a learning disability. It can also be prepared if you have a lengthy record of offences or have committed a serious violent offence. 

The report is written by a qualified expert, for example a doctor or a psychologist who will meet with you and examine you.

How long it takes to make the report depends on your case. The judge will adjourn your case to give the expert time to write the report.

The judge can order you to be detained while the report is being written if the prosecutor convinces the court that detaining you is necessary to get the assessment done. The detention cannot be longer than thirty (30) days.

Usually you will get a copy of the report. Your lawyer, the prosecutor, and sometimes your parent / guardian, and of course the judge will also get a copy of the report.  However, if the judge believes that giving you (or your parents) the report or some parts of the report would seriously harm your treatment or recovery, or would likely endanger the life, safety, or cause emotional harm to another person, then the report or a part of the report can be kept from you. This should only happen for very special reasons because it is usually your right to see all reports about you. 

Your lawyer will always get a full copy of the report to make sure that your interests are protected. If you disagree with the contents of the medical or psychological report, through your lawyer, you will get a chance to question, or cross-examine, the person who wrote the report. In this way you can show why you think that the judge should not pay attention to all or part of the report.

Although your consent is necessary in some situations, the judge can still order you to go for an examination and may put you in custody to make sure it happens. You could decide not to co-operate when you are being examined. This may not be a good idea because it may make the judge think that you are unreasonable or difficult, which could influence your sentence.

If you or your lawyer do not agree with the results of the first report, your lawyer might be able to get a different report written by another expert. You and your lawyer can discuss whether this is possible, or whether it would be a good idea.

What if I have committed more than one offence? 

You may receive a separate sentence for each offence. This means, for example, that for 2 offences you could have 2 fines to pay. Where you have committed more than one offence the combined time of the sentence imposed for these offences cannot be more than 3 years, except for first or second degree murder.If you commit a new offence before the sentence for your old offence is finished, the judge can give the maximum sentence for the new offence. So, the combined total for the old and the new offence could be more than 3 years.

What factors will the judge consider in deciding my sentence? 

In addition to the Pre-Sentence Report, other reports, and any recommendations made by a conference, the judge will also consider things such as:

• your role in the offence – whether you were the leader, or how much you participated,
• the seriousness of the offence – how much harm was done, and whether the harm was intentional, or you should have known that harm would be done,
• whether the offence involved serious violence,
• any reparation that you have made to the victim or the community,
• the time spent in detention before being found guilty,
• your record – Youth Justice Court record, or record of participation in alternative measures or extrajudicial measures, and
• whether reasonable alternatives to custody have been considered.

The court is not supposed to order custody just because there isn’t another place to take care of you.

Can the judge give any punishment that he or she thinks is right for the offence? 

Yes, but the sentences must be within certain limits, and in line with certain principles that the judge must consider. You should talk to your lawyer about what the likely sentence is for the offence with which you are charged. In addition to the limits outlined above, here are some other important limits and principles:

• You cannot get a more serious sentence than the maximum sentence that an adult could get for the same offence.
• The sentence you get must be similar to sentences that other young people would get for an offence in a similar situation.
• The seriousness of the sentence must be linked to the seriousness of the offence and the extent that the young person should be held responsible.
• The sentence should be the least restrictive option that is still a meaningful response to the offence, and promotes the young person’s healthy participation in the community.
• The sentence should be the one that is most likely to rehabilitate the young person, promote a sense of responsibility, and acknowledge the harm done to the victim(s) and to the community.

If my friend and I are both found guilty of the same offence, will we get the same punishment? 

Not necessarily. As mentioned before, the judge considers more than just the crime. For instance, if your friend has a record and you don’t, then your friend might get a more serious sentence. Or if you planned the whole thing and your friend just showed up and participated at the last minute, then you might get a more serious punishment.

Will I be able to find out why I received the sentence I did? 

Yes. The judge must give his or her reasons for giving the sentence, and you have a right to have a copy of the reasons if you ask for one.

What if I disagree with the sentence the judge gives? 

In some situations you may have the right to appeal your sentence – which is different than appealing the finding of guilt. You can also sometimes appeal certain parts of your sentence. There are many important details about appeals that you should discuss with a lawyer. See section on Appeals.

Do Aboriginal Youth have Special Rights? 

Aboriginal youth includes Inuit, First Nations, Indian and Metis youth, whether they are living on or off reserves.

The YCJA requires that the needs of aboriginal youth be taken into account in any measures taken against them. This is a recognition that in the past young aboriginal people have not been treated fairly by the criminal justice system, and that they may not have had the same advantages as other youth. Therefore, at each stage of the procedure against the young person, police, prosecutors and judges must respect and respond to the particular needs of aboriginal youth.

The circumstances of aboriginal youth must be taken into account when they are sentenced. Too many aboriginal youth have ended up in custody in the past. Therefore, any factors that help to explain why the young person committed the offence should be taken into account. These factors might include low income, poor housing, lack of education, loneliness and other stresses in the community.

Judges and prosecutors should be aware of alternative forms of sentencing for aboriginal youth, especially those which are connected to the aboriginal community. This may include such things as “sentencing circles”, and other forms of restorative justice, which are meant to heal the entire community, including the offender and the victim, rather than focusing on punishing the offender.