YCJA Youth Sentencing December 2002 1 S.38(1) Purpose of Sentencing S. 38(1) The purpose of youth...

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YCJA Youth SentencingYCJA Youth Sentencing

December 2002

S.38(1) Purpose of Sentencing

S. 38(1) The purpose of youth sentences is to hold a young person accountable for an offence through the imposition of sentences that

• have meaningful consequences for the young person, and

• promote his or her rehabilitation and reintegration into society

thereby contributing to the long-term protection of society.

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December 2002

S.3(1)(c)S.3(1) The following principles apply in this Act:

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values;(ii) encourage the repair of harm done to victims and

the community;(iii) be meaningful for the individual young person

given his needs and the level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration; and

(iv) respect gender, ethnic, cultural, linguistic and other differences and respond to the needs of aboriginal young persons and of young persons with special requirements

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December 2002

S. 38(2)(a) Principles of Sentencing

S. 38(2) A youth sentence shall be imposed in accordance with the principles set out in S. 3 and the following principles:

(a) the sentence shall not result in a greater punishment than an adult would face for a similar offence;

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December 2002

S. 38(2)(b) Principles of Sentencing


(b) the sentence must be similar to sentences imposed on other young persons in the region found guilty of the same offence committed in similar circumstances;

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December 2002

S. 38(2)(c) Principles of Sentencing

S.38(2) A youth sentence shall be imposed in accordance with the principles set out in S. 3 and the following principles:

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for the offence;

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December 2002

S.38(2)(d) Principles of Sentencing


(d) sanctions other than custody that are reasonable in the circumstances shall be considered for a young person, with particular attention to the circumstances of aboriginal young persons;

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December 2002

S. 38(2)(e) Principles of Sentencing


(e) subject to proportionality, the sentence must

(I) be the least restrictive sentence capable of achieving accountability,

(ii) be the sentence most likely to rehabilitate the young person and reintegrate him into society, and

(iii) promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community.

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December 2002

S.35 Referrals

S.35 A youth justice court may, at any stage of proceedings against a young person, refer the young person to a child welfare agency for assessment to determine whether the young person is in need of child welfare services.

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December 2002

S. 38(3)(a),(b), and (e)Sentencing Factors

S.38(3) In determining a youth sentence, the court shall take into account:

(a) the degree of participation of the young person in the commission of the offence;

(b) the harm done to the victims and whether it was intentional or reasonably foreseeable;

(e) the previous findings of guilt of the young person;

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December 2002

S. 38(3)(c) and (d)Sentencing Factors


(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

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December 2002

S. 38(3)(f)Sentencing Factors


(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purposes and principles of sentencing.

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December 2002

S.39(1)(a), (b), and (c) Restrictions on the Use of

Custody

S.39(1) A young person shall not be committed to custody unless:

(a) he has committed a serious violent offence;

(b) he has failed to comply with non-custodial sentences;

(c) he has committed an indictable offence which would attract an adult sentence of 2 years or more and there is a pattern of criminal convictions;

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December 2002

S. 39(1)(d)Restrictions on the Use of

CustodyS. 39(1) A young person shall not be

committed to custody unless:

(d) the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

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December 2002

S. 39(3) Considerations for Reasonable Alternatives to Custody

S.39(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider:

(a) the alternatives that are available;

(b) the likelihood that the young person will comply with a non-custodial sentence;

(c) the alternatives to custody that have been used by young persons for similar offences.

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December 2002

S.39(2) Alternatives to Custody

S.39(2) If a young person is eligible to be considered for a custodial sentence under S.39(1)(a) to (c), the court shall not impose a custodial sentence unless the court has considered all alternatives to custody raised at the custody hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative to custody that is in accordance with the purpose and principles set out in S. 38.

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December 2002

S. 39(9) Reasons Why Non-Custodial Sentence is Inadequate

If a youth justice court judge imposes a sentence that includes a custodial portion, the court shall state the reasons why a non-custodial sentence is inadequate to achieve the purpose set out in S. 38(1), including, where necessary, why the case is an exceptional case as referred to in S.38(1)(d).

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December 2002

S.39(3)(a) Considerations for Reasonable Alternatives to Custody

S.39(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) the alternatives to custody that are available;

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December 2002

S.39(3)(b) Considerations for Reasonable Alternatives to Custody


(b) the likelihood that a young person will comply with a non-custodial sentence, taking into account his compliance with previous non-custodial sentences;

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December 2002

S.39(4) Previous Non-Custodial Sentence

S.39(4) The previous imposition of a particular non-custodial sentence does not preclude the court from imposing the same or any other non-custodial sentence for another offence.

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December 2002

S.39(3)(c) Considerations for Reasonable Alternatives to Custody


(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

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December 2002

S.39(5) Custody as a Social Measure Prohibited

S.39(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.

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December 2002

Sources of Information During Sentencing

• pre-sentence reports

• conferences

• victim impact statements

• medical, psychological and psychiatric reports

• submissions and representations

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December 2002

S.40 Pre-sentence Reports

YCJA• S.40(2) a pre-sentence report

shall include, to the extent it is relevant to S.38 and S.39:

• S.40(2)(c) a pre-sentence report shall include recommendations resulting from any conference referred to in S.41

• S.40(2)(e) a pre-sentence report shall include any information that may assist the court

YOA• S.14(2) a pre-disposition

report shall include: (no reference to principles or purposes of sentencing)

• (no reference to conferences)

• (no reference to a general inclusion of relevant information)

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December 2002

S.41 Conferences

S.41 When a youth justice court finds a young person guilty of an offence, the court may convene or cause to be convened a conference under S.19 for recommendations to the court on an appropriate youth sentence.

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December 2002

S.19(1) Convening a Conference

S.19(1) A youth justice court judge, the provincial director, a justice of the peace, a prosecutor or a youth worker may convene a conference for the purpose of making a decision required to be made under this Act.

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December 2002

S.19(2) Conference Mandates

S.19(2) The mandate of a conference may be to give advice on

- appropriate extrajudicial measures

- conditions for judicial interim release

- sentences

- review of sentences, and

- reintegration plans

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December 2002

S.722 Criminal Code Victim Impact Statements

S.722(1) For the purpose of determining the sentence to be imposed on an offender, the court shall consider any statement that may have been prepared by a victim of the offence describing the harm done to, or the loss suffered by, the victim arising from the commission of the offence.

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December 2002

S.34(1) Medical, Psychological, and Psychiatric Reports

S.34(1) a youth justice court may, at any stage of the proceedings, require that the young person be assessed by a qualified person,(a) with the consent of the young person and the prosecutor; or(b) if the court believes a report is necessary and

(i) the court has reasonable grounds to believe the young person is suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning or a mental disability,

(ii) the young person’s history indicates a pattern of repeated findings of guilt, or

(iii) the young person is alleged to have committed a serious violent offence

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December 2002

S.34(2) Purpose of Report

S.34(2) a youth justice court may make an order for a report under S.34(1) for the purpose of

(c) making or reviewing a youth sentence

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December 2002

S.42(1) Submissions and Representations

S.42(1) a youth justice court shall, before imposing a youth sentence, may consider

• any recommendations submitted by a conference

• any pre-sentence report

• any representations made by the parties to the proceedings and their counsel

• any representations made by the parents of the young person

• any other relevant information before the court

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December 2002

New Youth Sentencing Options

• reprimand

• intensive support and supervision order

• non-residential program

• deferred custody and supervision order

• custody and supervision order

• intensive rehabilitative custody and supervision order

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December 2002

S.42(2)(a) Reprimand

S.42(2) when a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other:

(a) reprimand the young person;

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December 2002

S.42(2)(l) Intensive Support and Supervision Program

S.42(2) when a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other:(l) subject to the agreement of the Provincial director, order the young person into am intensive support and supervision program approved by the provincial director;

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December 2002

S.42(3) Agreement of Provincial Director

S.42(3) a youth justice court may make an order for an intensive support and supervision program or for a non-residential program only if the provincial director has determined that a program to enforce the order is available

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December 2002

S.42(2)(m) Non-Residential Program

S.42(2) when a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other:(m) with the agreement of the provincial director, order the young person to attend a non-residential program approved by the provincial director, for a maximum of two hundred and forty hours, over a period not exceeding six months

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December 2002

S.42(3) Agreement of Provincial Director

S.42(3) a youth justice court may make an order for an intensive support and supervision program or for a non-residential program only if the provincial director has determined that a program to enforce the order is available

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December 2002

S.42(2)(p) Deferred Custody and Supervision Orders

S.42(2) when a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other:

(p) make a deferred custody and supervision order that is for a period not to exceed six months, subject to the conditions set out in S.105(2) and any conditions set out in S.105(3) that the court considers appropriate

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December 2002

S.42(5) Requirements for Deferred Custody and Supervision Order

S.42(5) the court may make a deferred custody and supervision order if

(a) the young person is found guilty of an offence that is not a serious violent offence;

Note: this provision does not exist for adult offenders, who may receive a conditional sentence under S.742.1 of the Criminal Code

(b) it is consistent with the purpose and principles set out in S.38 and the restrictions on custody set out in S.39

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December 2002

Custody and Supervision Orders

• deferred custody and supervision order• regular custody and supervision order • custody and supervision order for attempted

murder, manslaughter, or aggravated sexual assault

• custody and supervision order for murder• intensive rehabilitative custody and supervision

order

Under the YCJA, every period of custody is to be followed by a period of supervision.

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December 2002

S.83(1) Purpose of Youth Custody and Supervision

Orders

S.83(1) The purpose of custody and supervision is to contribute to the protection of society by

(a) carrying out sentences imposed by the courts through the safe, fair and humane custody and supervision of young persons; and

(b) assisting young persons to be re-integrated into the community by providing effective programs while in custody and while under supervision.

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December 2002

S.42(2)(n) Custody and Supervision Order

S.42(2) When a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other:(n) make a custody and supervision order, ordering that a period be served in custody and a second period, that is one-half as long as the first period, be served under supervision in the community, the total of the sentence not to exceed two years, or three years if the maximum adult sentence is life.

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December 2002

S.42(2)(o) Custody and Supervision Presumptive “a” Offences Other

Than MurderS.42(2) When a youth justice court finds a young

person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other:

(o) in the case of attempted murder, manslaughter, or aggravated sexual assault, make a custody and supervision order for a specified period not exceeding three years from the date of committal that orders the young person into a continuous period of custody for the first portion of the sentence and to serve the remainder of the sentence under conditional supervision in the community in accordance with S.105;

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December 2002

S.42(2)(q)(i) Custody and Supervision Order for First Degree

Murder

(q) (i) in the case of first degree murder, order a young person to serve a sentence not to exceed ten years, comprised of

(A) a committal to custody, to be served continuously, for a period that must not exceed six years from the date of committal, and

(B) a placement under conditional supervision to be served in the community in accordance with S.105,

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December 2002

S.42(2)(q)(ii) Custody and Supervision Order for Second

Degree Murder

(q) (ii) in the case of second degree murder, order a young person to serve a sentence not to exceed seven years, comprised of

(A) a committal to custody, to be served continuously, for a period that must not exceed four years from the date of committal, and

(B) a placement under conditional supervision to be served in the community in accordance with S.105,

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December 2002

S.42(2)(r) Intensive Rehabilitative Custody and

Supervision Order

S.42(2)(r) subject to S.42(7), make an intensive rehabilitative custody and supervision order

(I) that is for a specified period that must not exceed

(A) two years from the date of committal, or

(B) if the young person is found guilty of an offence for which the punishment for an adult is imprisonment for life, three years from the date of committal

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December 2002

S.47(7)(a) Conditions for Intensive Rehabilitative Custody

and Supervision Order

S.47(7) A youth justice court may make an order of intensive rehabilitative custody and supervision under S.42(2)(r) only if

(a) (i) the young person has been found guilty of a presumptive “a” offence, or

(ii) the young person has been found guilty of a presumptive “b” offence

except that the young person does not need to be 14,;

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December 2002

S.47(7)(b) Conditions for Intensive Rehabilitative

Custody and Supervision Order


(b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance;

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December 2002

S.47(7)(c) Conditions for Intensive Rehabilitative

Custody and Supervision OrderS.47(7) A youth justice court may make an

order of intensive rehabilitative custody and supervision under S.42(2)(r) only if

(c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe that the plan night reduce the risk of the young person repeating the offence or committing a serious violent offence; and

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December 2002

S.47(7)(d) Conditions for Intensive Rehabilitative

Custody and Supervision Order


(d) the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that the young person’s participation is appropriate.

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