HOW DOES A PREVIOUS CRIMINAL RECORD AFFECT SENTENCING?

Having a criminal record can have a direct impact on your life, even after completing your sentence. A criminal record affects your future by making it more difficult to find employment, limiting travel, and restricting certain rights.

If you face another conviction while already having a criminal record it can affect your sentencing.

CRIMINAL RECORD AS AN AGGRAVATING FACTOR

A criminal record is likely to be assessed as an aggravating feature in any sentencing hearing. Although during trial a criminal record can be used as a determiner of guilt, it can be used as a “relevant consideration,” during sentencing.

The Crown can seek a more severe sentence by showing that the existing criminal record is “probative of the offender’s character and prospects for rehabilitation.” Simply put, they use the record to demonstrate that the offender has failed to learn from past mistakes and is a less likely candidate for rehabilitation.

This is especially relevant where there are similarities to the offence that resulted in the original offence. This suggests that the initial sentence was not effective, and a different approach is necessary to curb the behaviour. For instance, a first-time offender is less likely to go to jail than someone with a criminal record.

The sentencing, however, is not intended to act as additional punishment or sentencing for offences that have been previously tried. Sentencing must be relevant to the offence, not a punishment for past offences.

The Jump Principle

The Jump Principle (or Step Principle) is commonly applied to sentencing people with previous criminal convictions. This prevents significant increases in sentencing that are disproportionate to the crime. The principle is set to ensure the sentence is consistent with rehabilitation and the offence.

Any dramatic increase in sentencing would violate the Jump Principle. For instance, if the initial offence received a 2-year jail term, giving a 4-year term for the second offence, with similar circumstances, would be disproportionate and considered in violation of the principle.

There are exceptions to the Jump Principles. If the offence being tried is more serious than the past offence, it may receive a significant “jump” in sentencing. For example, a violent offence will likely have more severe consequences than a previous non-violent offence.

As well, if the previous sentence was lenient and failed as a deterrent, a jump may be permissible.

Mitigating

In some instances, the criminal record may have a mitigating effect. If the defendant can demonstrate good behaviour since the previous sentence they may be eligible for a reduced sentence. Good behaviour can show that rehabilitation efforts are effective and increasing sentencing may not be necessary.

WHAT IF YOU HAVE A DISCHARGE?

If you have a discharge from a previous offence you may still be considered a first-time offender. A discharge is not a criminal conviction and thus does not result in a criminal record. The type of discharge, however, matters.

An absolute discharge has no other conditions, so it should not be used in future sentencing. A conditional discharge, on the other hand, comes with a set of conditions. One of the most common conditions is to “keep the peace and be on good behaviour,” which a new conviction would violate.

If you fail to meet the conditions of the discharge it can be cancelled, resulting in a criminal record. You are then eligible for stricter sentencing and may receive an additional charge for breaching probation.

Rarely would an offender receive multiple discharges for similar offences.

Note: This year, the Canadian government made it easier and faster to receive pardons for simple possession of cannabis convictions. Learn more: How Pardons For Marihuana Possession Affect Criminal Records

HOW DOES A YOUTH CRIMINAL RECORD AFFECT ADULT SENTENCING

The Youth Criminal Justice Act is intended to better rehabilitate young offenders and protect their futures. Part of this effort is that a youth criminal record is eventually sealed. It is still possible, however, for a youth criminal record to affect adult sentencing.

A youth criminal record is not automatically erased when you become an adult. After a conviction, a young offender’s record is subject to an access period. During the access period, the record is not sealed, even if they become an adult during that time. Turning 18 does close the access period.

Should a defendant faces another charge after the access period ends, they can be treated as a first-time offender. If the access period is still open, however, the record is still in play. If you are over 18 and are convicted while the access is still open, both the youth record and the new conviction will become part of your adult criminal record.

HIRE A TORONTO CRIMINAL DEFENCE LAWYER

Sentencing is a highly individualized and fact-driven process. If you, or a loved one, are facing charges for a criminal offence the smart choice is to hire a criminal defence lawyer. Your lawyer will look at the individual aspects of your case to help you understand your charges, your options, and the potential outcomes.

William Jaksa is a Toronto defence lawyer with over a decade of experience in criminal law. Contact Jaksa today for your consultation.