Jan 11, 2016 - PROPORTIONALITY IN SENTENCING: WHITE COLLAR OFFENDERS BEWARE - Part 2

 


Part 1: click here


V. PROPORTIONALITY


The fundamental principle of proportionality is stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.

As noted in the introduction, Justice Wagner’s judgment juxtaposes these two fundamental competing factors: The more serious the crime and its consequences, the heavier the sentence will be.  The competing and different factor is the moral blameworthiness of the offender. This latter factor included three prior convictions of Lacasse for speeding which in the Court’s view showed that he was irresponsible when behind the wheel, and his convictions under the Highway Safety Code were all the more relevant given that speeding had played a part in the accident in this case.

 A further example of the moral blameworthiness of the offender being weighed in the calculation is demonstrated by the trial judge attaching less weight to the remorse expressed by Lacasse and to his guilty plea because of the lateness of that plea. A plea entered at the last minute before the trial is not deserving of as much consideration as one that was entered promptly

This two pronged approach is amenable to a matrix analysis that reflects the type of risk assessment that is central to compliance in the area of corporate compliance. At the sentencing stage however, the risk matrix is on its head, as there has been a failure of risk management. The application of a risk management matrix may provide some further guidance. Matrix analysis organizes the statutory principles listed above into two categories: “moral blameworthiness of the offender ” on the X axis versus “seriousness of the crime and its consequences” on the Y axis. The factors of sentencing can be grouped into these two axes along the following lines:

  • X axis: “moral blameworthiness of the offender”
    • The history of compliance versus prior record
    • Personal circumstances such as whether the offence was motivated by bias, prejudice or hate
    • Personal circumstances such as age, experience
    • Degree of planning involved in the offence
  • Y axis: “seriousness of the crime and its consequences”
    • Scope of the offence
    • Any benefit obtained from the commission of the violation
    • Evidence that the offence had a significant impact on the victim, including physical, financial and emotional harm
    • Extent of risk of harm that was created by the offence

The matrix can then be used to plot the range of the appropriate penalty which can be used for comparative purposes. For an example in the white collar area, assume that an individual has an otherwise  good compliance record and the motive for the offence was related to business sustainability rather than for personal profit.  Assume that the extent of harm is significant given the large volume of product that is the subject of the offence.  The matrix might look as follows in Example A:

The A plots the location on the matrix, which requires a significant penalty to achieve deterrence, even though the moral blameworthiness is on the low side.

Example B takes the fact situation as in Example A but changes a variable on the X axis. Assume that the motive for the offence was personal profit and that there was considerable planning for a period of time before the offence. The matrix would be adjusted as follows:

The B plots the location on the matrix suggests that the sentence should be near the maximum that is set out by the legislative scheme pursuant to the principle of proportionality and to ensure adequate deterrence.

Part 3: click here


Source: Global Compliance News


 

Last updated on: 2016-02-01 | Link to this post