Wednesday, March 21, 2012

Legal Q & A: Graham James and His 2 year Sentence

Manitoba provincial court Judge Catherine Carlson sentenced Graham James to two years in prison for sexually assaulting Todd Holt and his cousin, former NHL hockey player Theo Fleury.

Initially, James was facing nine charges of sexual assault involving three players (including Fleury and Holt). However, charges regarding one victim were stayed and James pled guilty to the two charges as they relate to Fleury and Holt.

In all, James received two years for each offence, but the sentences will be served concurrently.

Why Only Two Years?

Many people are asking why only two years. A lot of this has to do with timing.

James was previously sentenced to 3.5 years in prison when he pled guilty to 350 counts of sexual assault as they related to 3 victims, including Sheldon Kennedy. Those incidents happened between 1984 and 1995.

These most recent charges stem from incidents that occurred between 1979 and 1994. So there is temporal overlap. This is important. While the “Fleury” charges were “new”, they were not new in the sense that they occurred after James was convicted the first time. So strictly speaking he did not reoffend.

This relates to the governing principle behind our penal or prison system. That principle is rehabilitation. The idea is that prison should rehabilitate a criminal.

So in this case, James had already served time for criminal acts that occurred at around the same time. As well, there was no evidence that James had reoffended after he was convicted. He also received treatment, surrendered to Canadian police without fighting extradition from Mexico (where he was at the time) and has held a job.

Given the circumstances, Judge Carlson deemed two years as an appropriate sentence.

Do Judges Have Sentencing Guidelines?

Yes. When sentencing a criminal, judges rely on sentencing guidelines. They look at things like the degree of premeditation and planning involved; the amount of violence, weapons used, and the specific involvement of the offender; the maximum sentence set out in the Criminal Code; the attitude of the offender at the time of the crime; previous criminal records and sentences usually imposed for similar offences.

If James Re-Offends Does He Get Less Or More Time?

More. If he is found guilty of new charges – that is charges that occur after his first conviction – then he would get more time in jail as a repeat offender.

Would James Have Had A Longer Sentence if Fleury & Kennedy (And Company) had Consolidated The Charges?

Yes. In all likelihood, that would have resulted in a longer sentence for James. Probably somewhere around 6 to 7 years. When you add up the first and second sentences, that’s where we almost end up.

What’s A Normal Sentence For These Types of Crimes?

The law provides for a maximum of 10 years per offence. However, six to seven years is on the high end though. Victims of course feel this is fundamentally low given the lifetime trauma that is inflicted on them. That is not an unreasonable position.

When Can James Get Parole?

He could apply after serving one-third of his sentence. As well, he could be automatically released after serving two-thirds of his sentence. So that means that James could be out of jail within 8 months, but more realistically (given the uproar) somewhere in the first quarter of next year. Tough to tell though.

If He Got 4 Years Why Does He Really Get 2 Years?

The Judge sentenced James to 4 years – 2 years per offence. However, this is being served concurrently.

When offenders are convicted of more than one offence at a time, there are two options: serve the time as concurrently or consecutively. Concurrent means that you serve them at the same time and the longest sentence is your time in prison. Consecutive sentences are served one after another and not at the same time.

Consecutive sentences are rare, and concurrent sentencing is the more common approach.

Overall Was The 2 year Sentence Appropriate?

“Appropriate” is a funny word. From a legal standpoint, given how the Courts treat these types of cases in these types of situations, the answer is yes it was appropriate. It was in keeping with the accepted Court practice. Frankly, the 2 year sentence was not a surprise, which in part may be why James didn’t fight extradition from Mexico.

However, for many an “appropriate” result is a “just” one. From that standpoint, many understandably believe that this outcome was not appropriate because it was not just. Indeed, for many Canadians, justice was not done.

1 comment:

Wayne C said...

thanks for the explanation... people are still going to be unhappy, but at least we now understand the legal "quirk" which allowed this to happen