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Tom Rees | Criminal Defence Lawyer Winnipeg
3
May

General Deterrence and Denunciation – More Jail on Faith

 

A Manitoba Provincial Court recently sentenced a young woman to a Suspended Sentence for Assault Causing Bodily Harm. The assault occurred at a bar, and the injury was a broken nose.

The Crown asked for a period of probation with conditions to be attached to a suspended sentence, meaning that young woman would receive a criminal record. Defence argued for those same conditions, but that the probation could be attached to a Conditional Discharge, meaning the young woman would not have a criminal record if she successfully completed the probation.

The young woman had been to addictions counselling, anger management counselling and had done everything she could have to reform herself between the incident and her sentencing date according to the Judge. However, the Court sentenced her in such a way that she received a criminal record.

The Judge said that despite everything the young woman did to demonstrate her remorse and willingness to reform herself, a discharge was not appropriate because of the nature of the injury. The Judge also made reference to the probable negotiations between Defence and Crown, suggesting that the Crown had only agreed to a suspended sentence after receiving a very positive report about the young woman.

In the balancing between general deterrence and her specific rehabilitation, the Judge decided that rehabilitation must take a back seat to general deterrence and denunciation, stating that it was contrary to the public interest to allow this young woman to receive a discharge.

Courts rely on general deterrence and denunciation to sentence people to more restrictive or harsh sanctions every day. However, the concepts of general deterrence and denunciation are problematic.

First, being deterred is dynamic — a state of being at a certain time — not a state that is permanent. For instance, I am currently deterred from killing anyone. The reason I don’t kill people is that I personally feel like it is wrong, and I would regret hurting anyone. I would suffer because my view of myself — that I am a gentle, kind person who doesn’t hurt people on purpose — would not be consistent with my actions. I would disappoint the people who know me, and negatively affecting my friends, family and community. I’m also aware that murder is illegal and you can go to prison for killing people.

However, if I was ever presented with a situation that was sufficient to overcome my rationale for avoiding the consequences of causing someone’s death, I would then be in a state where I’m no longer deterred. The defence of Provocation, which reduces murder to manslaughter, is evidence that lawmakers are aware that people can go from being deterred to being not deterred, depending on the circumstances.

Another issue with general deterrence is that the Crown does not need to present any evidence to show that the sentence they are suggesting will actually deter anyone in the public. How long a jail sentence is required to deter other people from committing a similar offence? We, the Judge, Crown and Defence Counsel, simply don’t know. By virtue of our jobs, we are people who are already deterred from committing crimes. We are just guessing how much jail is necessary to deter some imaginary person in the public.

General deterrence and denunciation start from the premise that crime pays. The benefits of committing a crime outweighs the consequences of getting caught. It assumes that the offender will complete a cost/benefit analysis prior to committing offences and that the public have access to complete information about the justice system’s response to certain offences at certain times.

Let’s use this example: What is the average length of sentence for an aboriginal women convicted of being a party to a break and enter of an attached garage by watching out for police? If you don’t know, then how can you be deterred? Other factors are considered by the Judge like the age of the offender and her record. You need that information to be able to perform your theoretical cost/benefit analysis before committing your break and enter. Which Judge will ultimately sentence you? You will also need to know that prior to your crime spree if you are to make a decision about whether to be deterred.

Currently, the Provincial Court system in Manitoba can not provide statistics about the punishments for similar crimes across the province throughout history. Even as the Province is trying to collect more statistics, they certainly are not collecting enough information about the circumstances of each offender at the time those people are sentenced.

The public actually receives their information about crime from the media. The media is not burdened with the obligation to provide complete information about the Criminal Justice System to properly further the sentencing principles of general deterrence and denunciation. Instead, their motivation is to sell a product and make a profit, meaning that they only report about crimes that will sell that product, and they will only talk about it in such a way as to further their aims.

It is fair to conclude that the public does not have access to the information necessary to be properly deterred.

Part of the reason we need a justice system is to prevent a mob from deciding punishments for crimes on the basis of emotion and mob mentality. Instead, the idea is to have an independent person decide an appropriate sanction using a line of reasoning developed to produce just and fair results.

Anyone who reads online news papers and the comments left by users is aware that opinions about the severity of punishments vary greatly. They range from people who seem to think that life in jail is a suitable sentence for most people who commit crimes, to people who believe that a less restrictive sentence would have been appropriate.

In the end, general deterrence and denunciation are merely words that allow a Judge to sentence a person to a more harsh, lengthy or restrictive sentence by drawing from their own values and life experience, not evidence of the existence or effectiveness of the factors they are relying on. This leads to a greater variation between Judges in the court, and thereby less predictability and stability in the court system. Had that young women been in front of a Judge who had less faith in the effectiveness of deterrence, and a different opinion about the public interest, she may have been discharged.

My view is that no person was deterred from committing any offence as a result of that young woman’s sentence. No person in the public is even aware of her case. Even if a person was aware of her case, the odds of that person being sentenced by the same Judge is approximately 1/48. Another person could have done less to demonstrate their remorse and done less to reform themselves, but end up with a Judge that has a different view about what might deter an imaginary person in the general public.

Denunciation and general deterrence are factors used by the approximately 48 Provincial Judges everyday to sentence people who have been convicted. Offenders can and should take action to reform themselves after they are charged with a crime. However, when they are receiving their sentences, the key factor is whether their sentencing Judge is one of the ones who does not have faith in the effectiveness of denunciation and general deterrence, and who’s opinion is that rehabilitating offenders is in the public interest.

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