The Sentencing Process: Factors Causing Variation in Sentencing

Sentencing of individuals found guilty of a criminal offence is one of the least understood concepts. However, it is a vital concept since it is one of the most scrutinized aspects of the criminal justice system. The circumstances under which the crime was committed, defendant’s past criminal record and age, prior good character and depiction of remorse are the primary factors that can cause variance in imposing sentence to the same offense. The most important principles of sentencing in cases of this nature remain denunciation and deterrence: R. v. Nur, 2015 SCC 15, which incorporates the most aggravating factors in case judgment. The purpose of this paper is to provide an insight into the sentencing process by analyzing different cases. 

A Summary of the Case of Mr. Jama 

In the first case, Mr. Jama was arrested for possession of a handgun on 11 th September 2016. He pleaded guilty to three different counts which include possession of a loaded restricted firearm, carrying firearm in a careless manner and failing to comply with a recognizance. Regarding the circumstances of the offence, it is noted that on September 11, 2016 at 2:11 am shots were fired in the vicinity of 113 Merrill Avenue, Toronto. A very large party was going on at that address. The Toronto Police immediately responded. Two officers investigated a laneway to the rear of 113 Merrill Avenue. Mr. Jama was talking to a young woman. His hands were in his pockets. He appeared to be reaching for something or holding up his pants. He “bladed” his body away from the police officers. The officers, concerned for their safety, performed a pat-down search. One of the 2 officers felt what appeared to be a firearm. In fact, it was a firearm, a Glock .40 handgun. It had one round in the chamber and one round in the magazine. Mr. Jama was arrested and searched. He had another round in his pants pocket. 

Regarding the circumstances of the offender, it is observed that Mr. Jama had a criminal record. On May 25, 2016 he pleaded guilty to fail to comply with a recognizance. He was conditionally discharged and put on probation for 12 months. On July 29, 2016 he pleaded guilty to failing to comply with a recognizance and received a suspended sentence in light of pre-sentence custody. He was placed on probation for 12 months for that offence as well. He was therefore on probation when this offence occurred. He was also on bail. On August 13, 2015 he was charged with robbery. One of the conditions of his release was that he was not to possess any weapons. He was in breach of his bail when he was arrested. Mr. Jama was subjected to a global sentence of 36 months, and less credit for pre-sentence custody. 

A Summary of the Case of Mr. Sauvé 

In the second case, Jarrett Sauvé is being sentenced following convictions for careless storage of a firearm and trafficking of weapons. The circumstances of the offences reveal that Mr. Sauvé, who was nineteen years old at the time, agreed to drive from Ottawa to Cornwall to pick up a firearm after agreeing to a request made by his friend Mr. Stewart. Mr. Sauvé acknowledged in his post-arrest statement that he knew that Mr. Stewart “wasn’t going there to get something legal.” The firearm was in in Mr. Sauvé’s backpack at a point when he was observed by police. The only evidence adduced as to Mr. Sauvé’s purpose in participating in the offence was that he intended to assist his friend Mr. Stewart with the transportation of the gun to Ottawa, at which point Mr. Stewart would retain control of the gun. 

The circumstances of the offender show that the time of these offences, when he was nineteen, he had no criminal record. The Pre-Sentence Report indicates that Mr. Sauvé comes from a loving home with parents who are extremely supportive of him. He has two older sisters with whom he has a good relationship. His family has supported him throughout his time before the court despite the stress this has caused for the entire family. He has a very supportive family, and both members of the community and his neighbors speak positively about his characters. One of the neighbor notes that Mr. Sauvé shows remorse and recognizes that what he has done e has impacted not only himself, but his family. Her letter suggests that Mr. Sauvé has grown because of this experience. She describes him as having matured into “a fine adult, who took responsibility for himself by working full time and abiding by the rules of his house arrest.” For the weapons trafficking offence, the sentence shall be a nine-month conditional sentence. The sentence for careless storage shall be the time served of one day pre-sentence custody. 

A Summary of the Case of Mr. Butler 

In the third case, Mr. Butler has been charged with four counts. On or between the 5th day of May, 2014, and the 12th day of May, 2014, at the City of Whitehorse in the Yukon Territory, did make an arrangement by means of telecommunication to commit sexual exploitation of a child. On or about the 12th day of May, 2014, at the City of Whitehorse in the Yukon Territory, did distribute child pornography. On or about the 12th day of May, 2014, at the City of Whitehorse in the Yukon Territory, did have in his R. v. Butler, 2017 YKSC 63 Page 2 possession child pornography. Lastly, on or about the 16th day of April, 2015, at the City of Whitehorse in the Yukon Territory, did store a restricted weapon in a manner contravening the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations. However, he has pleaded guilty to counts number one, three and four. 

It is noted that at the time of conviction, Mr. Butler had no criminal record. However, when some of his items were confiscated and analyzed, it was established that a total of 9693 images/videos depicted child pornography, of which many images/videos were duplicates. Also, it was determined that 2369 images/videos depicting child pornography were unique. The joint sentence submission for this case is a sentence of one year custody in each of counts 1 and 3. In other words, it is a consecutive sentence of two years. 

Factors Causing Variation in Sentencing 

First, the variance is caused by the circumstances under which the crime was committed. In the case of Mr. Jama, it is observed that the crime of carrying a loaded handgun was done in public place, near to a large raucous party where gun shots had been fired. The judge notes that this is the most dangerous type of offence because a weapon was carried in public, in an area where a party was being held and gunshots had been heard before. The firearm exposed the lives of many people to danger. Thus, sentencing Mr. Jama for the longest period, 36 months reflects the gravity of crime committed. Compared to the case of Mr. Sauvé where the offences involved careless storage of firearm and weapons trafficking, it can be argued that the circumstances are less adverse. The public is less exposed to the dangers of careless storage of weapons. Thus, the judge gave a light sentencing of nine months conditional sentence. In the case of Mr. Butler, it is observed that he commits crime under a circumstance of non-contact sexual offence. Also, his act of storing a restricted weapon in a manner that contravening the storage does not cause more danger to the public, thus the two years sentence. 

Other factors that bring variance in judgment include the defendant’s past criminal record and age. Both Mr. Sauvé and Mr. Butler had no criminal records at the times of committing the offenses. The judges were therefore considerate in providing sentences, and they drafted conditions which could help the defendants in improving their characters and behaviors. However, Mr. Jama had criminal records, and although his case was associated with adverse circumstances, the sentence offered was thorough. Another factor that contributes to sentence disparity is offender’s prior good character and depiction of remorse. The evidence establishes that Mr. Sauvé has been a contributing member of the community since he was sixteen years old. He has excellent social and family support. He has been a hard worker and has realistic goals and ambitions, including a return to school so that he can benefit from completing his high school education. His neighbors also talk positively about his character. The cases of Mr. Jama and Mr. Butler are different because they show negative characters and behaviors. 

Aggravating Factors in the Cases 

The most outstanding aggravating factor in the case of Mr. Jama is that he was carrying a handgun in a public place with live ammunition. He also had a minor criminal record. It is also aggravating that he was on probation when this offence occurred. Regarding the mitigating factor, Mr. Jama has pleaded guilty. He certainly deserves credit for taking responsibility for committing this offence. It is also mitigating that Mr. Jama is very young and enjoys the support of his family. Mr. Jama was shot in the back. He was in the wrong place at the wrong time. Also, it is observed that Mr. Jama felt he needed the weapon for self-defense. Even accepting those facts at face value, that is no justification for carrying a dangerous illegal handgun. 

The Most Important Principle of Sentencing Used 

The most important principles of sentencing in cases of this nature remain denunciation and deterrence: R. v. Nur, 2015 SCC 15. In the case of Mr. Jama, it is observed that he enjoys community and family support. Thus, rehabilitation must also play a role. Also, in the case of Mr. Butler, rehabilitation is essential in ensuring that he keeps in peace and become of good behavior. Mr. Sauvé should also participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor to ensure he learns hoe to avoid careless storage of firearms and avoids weapons trafficking. 

Whether or Not the Sentencing Reflects the Gravity of Crime 

In my opinion, the sentence offered in the case of Mr. Jama reflects the gravity of crime and the culpability of the offender. Under the justice laws, it is noted in article 90 (1) that “every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed” ( Government of Canada , 2020). Anyone who commits an offense under this subsection is liable to imprisonment for a period not more than five years. Mr. Jama was in possession of an illegal and dangerous firearm in public where a gun shot had been heard, thus, the sentence of 36 months reflects the gravity of crime. 

Mr. Sauvé committed an offense of carelessly storing a firearm and engaging in trafficking of weapons. Section 86(1) provides that “every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition in a careless manner or without reasonable precautions for the safety of other persons” ( Government of Canada , 2020). The punishment for such an offence is imprisonment for a term not longer than five years. So, I opine that the sentence offered by the judge reflected the gravity of crime. The case of Mr. Butler was exceptional: and I think the judgement and sentence offered did not reflect the gravity of the offense committed. Mr. Butler also violated the firearms storage law. I therefore feel he was to be subjected to more severe punishment. 

Position in Redrafting the Criminal Code 

While redrafting the Criminal Code, I would maintain the status quo. The punishment offered should vary depending on various factors such as defendant’s background and the factual circumstances of a particular case. Besides, judges providing the ruling should not be subjected to mandatory minimum or higher-lower maximum sentence. They should be given freedom to make rulings based on the nature of cases. 

Conclusion 

In conclusion, Mr. Jama, Mr. Butler and Mr. Sauvé have a choice to become hardened criminals or get their life on track. The punishment offered should vary depending on various factors such as defendant’s background and the factual circumstances of a particular case. The circumstances under which the crime was committed, defendant’s past criminal record and age, prior good character and depiction of remorse are the primary factors that can cause variance in imposing sentence to the same offense. 

References 

Government of Canada (2020, July 1). Criminal code. Justice Laws Website - Site Web de la legislation (Justice).  https://laws-lois.justice.gc.ca/eng/acts/C-46/page-1.html