In a recent, highly publicized case, a man found guilty of sexual assault received a conditional discharge as a sentence. This was viewed by many as too light a sentence, triggering widespread protests. In this article, we look at the criteria a judge must consider in deciding whether to grant such a sentence.
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When a discharge is not possible
A judge cannot grant a discharge in cases where the Criminal code provides either a minimum sentence or the possibility of a prison sentence of 14 years or more.
This means, for example, a judge cannot grant a discharge to someone found guilty of impaired driving or of certain firearm offenses. Discharges are not possible for some types of sexual assault cases either, for example if the victim is younger than 16 or suffered injuries from the assault.
If the offence is one for which it is possible to grant a discharge, the judge must consider the following criteria.
The offender must show it is in their “best interests”
The offender must show that a criminal conviction would have particularly damaging consequences for them and that it would be in their best interests to be granted a discharge. They might show, for example, that having a criminal record would cause them to lose their job or have a major impact on their immigration status.
The judge must also believe that a more severe punishment is not required to deter the offender from committing other crimes.
If the judge is satisfied about these points, the judge continues the analysis.
The judge must consider the public interest
Granting a discharge must not be contrary to the public interest. The judge must consider whether such a sentence would shock the public and cause it to lose confidence in the justice system. The more serious the crime, the greater the risk of this.
The judge must decide
Once the judge has considered all these criteria, the judge must balance the interests of the offender with the public interest and decide whether a discharge is appropriate. The judge will also be guided by other objectives of the criminal law in arriving at a sentence, for example, deterring other people from committing the offence in question, rehabilitating the offender, and providing reparations for the harm caused.
If the judgement is appealed, a higher court could modify the judge’s decision, for example, if it finds that the judge erred in applying the criteria that allow for granting a discharge.