1
1
Law 12Sentencing and Correctional SystemMs. Ripley
R.v.Joseyounen (1995), 6 W.W.W. 38 (Sask. Prov. Ct.)(Law in Action, Blair, p.305)
BACKGROUND One night the accused, Robert Joseyounen, got drunk and started a fight with his brother, Napoleon Joseyounen. The victim's injuries were so severe that he suffered brain damage. Robert pleaded guilty to a charge of aggravated assault that endangered the life of his brother. He also applied for an order to hold a sentencing circle.
LEGAL QUESTION. Is this case an appropriate opportunity for the Court to seek the guidance of a sentencing circle?
DECISION. In determining whether a sentencing circle would be appropriate, Provincial Court Judge C. Fafard established the following seven criteria for assessing such requests and then applied them to this case:
1) The accused must agree to be referred to the sentencing circle.
2) The accused must have deep roots in the community in which the sentencing circle is held and from which the participants are drawn.
3) Elders or respected, non-political community leaders will participate.
4) The victim is willing to participate, without being subjected to coercion or pressure.
5) Although not applicable to this case, the following criterion was added to cover future possibilities: The court should try to determine beforehand whether the victim suffers from battered woman's syndrome. If she does, then she should receive counseling and be accompanied in the circle by a support team.
6) Disputed facts have been resolved in advance.
7) The case is one in which a court would be willing to take a calculated risk and depart from the usual range of sentencing.
In this case, the fourth criterion could not be satisfied. The victim no longer had sufficient mental capacity to express his wishes regarding this matter. Nonetheless, the most important criterion was the seventh. According to judge Fafard:
... Properly applied, it is the one [criterion] which guarantees the maintenance of public confidence in the administration of justice.
It is not so much a question of specific or general deterrence. People who get drunk and commit an offence seldom address their minds to the consequence before committing the offence. In practice, deterrence should be aimed at drunkenness. Incarceration here is seen as a necessary measure to afford the accused the opportunity to reflect on the style of life which led him to do this terrible thing to his brother and to deliberate on changing his attitude.
The judge imposed a sentence of imprisonment. However, he did grant the family's request and authorized a "healing" circle, rather than a sentencing circle.
HISTORICAL SIGNIFICANCE. This case established the criteria for determining whether a sentencing circle should be granted.
ANALYSIS
1. Other than the battered woman's syndrome, which criterion could not be met? Why?
2. Why did the judge consider the seventh criterion to be the most important?
3. Explain the judge's views on deterrence in cases like this one.
4. Why do you think the judge granted the family's request for a healing circle even though he had imposed a prison sentence?