By Dr. Jason Haynes
Deputy Dean (Graduate Studies & Research), Faculty of Law, UWI Cave Hill Campus, Barbados
I have seen a lot of contestation in the press and on social media over the last week or so regarding the applicability of sentencing guidelines to certain categories of offenses.
I wanted to bring some clarity on the applicability of these relatively guidelines in my capacity as a UWI Lecturer in Law, who happened to serve on the Eastern Caribbean Supreme Court Sentencing Advisory Committee, which drafted said guidelines.
First, it is to be noted that sentencing guidelines are documents which set out a methodology for judges and magistrates to decide upon a particular sentence, having regard to the relevant legislation, and the aggravating and mitigating circumstances relevant to the particular case.
Sentencing guidelines go a long way in ensuring that the sentence that is ultimately imposed on an offender reflects the crime that they have committed, the personal circumstances of the offender, and is proportionate to the seriousness of the offence. They also ensure that the courts are consistent in their approach to sentencing for particular offences. By ensuring consistency, the sentencing process also becomes more transparent, as victims, the accused, lawyers, and the public can properly understand how a particular sentence has been reached.
In jurisdictions that have adopted sentencing guidelines (for example, Jamaica and the United Kingdom), these guidelines, though useful, provide guidance only. They do not compel the court to impose a particular sentence, nor specify the precise length of a sentence. The court is permitted to depart from the Sentencing Guidelines in an appropriate and justifiable case.
In short, Sentencing Guidelines assist in maintaining the independence of the judiciary, and do not take away the discretion of the sentencing tribunal.
Although Courts in the Eastern Caribbean are frequently been called upon to determine the appropriate sentence to impose in particular cases where a criminal offence has been committed, there have, at least in the past, been allegations of a lack of consistency in approaches taken to sentencing in the sub-region. This lack of consistency has resulted in a number of appeals against sentences, heard both at the level of the Court of Appeal and Privy Council, as well as adverse comments in the press by defendants and their lawyers, and by the general public, by extension.
In recognition of the aforementioned realities, the Chief Justice of the Eastern Caribbean Supreme Court (ECSC) established a Sentencing Advisory Committee (SAC). The SAC s membership was comprised of co-chairs, Her Ladyship the Hon. Mde. Gertel Thom, Justice of Appeal of the Eastern Caribbean Supreme Court and chair of the Judicial Education Institute (JEI), and His Lordship the Hon. Mr. Iain Morley, High Court Judge of the Eastern Caribbean Supreme Court, along with the following members: Her Ladyship the Hon. Mde. Alice Yorke-Soo Hon, Justice of Appeal of the Supreme Court of Trinidad and Tobago; Her Ladyship the Hon. Dame Maura McGowan, Judge of the High Court of England and Wales; His Lordship the Hon. Mr. Trevor Ward, High Court Judge of the Eastern Caribbean 2 Supreme Court; His Lordship the Hon. Mr. Shiraz Aziz, Judge of the High Court of the Turks and Caicos Islands; and Her Honour Ms. Tamara Gill, Chief Magistrate of Grenada. They were supported by Ms. Sirah Abraham and I of the US Embassy for Barbados and the Eastern Caribbean and British High Commission in Barbados respectively.
Below are some key pointers which should hopefully inform the public s appreciation of the applicability of sentencing guidelines. These comments should not be taken to reflect the views of the Sentencing Advisory Committee, nor should they be read as purporting to comment on any specific criminal case that has been decided upon by our courts.
- the sentencing guidelines for murder only became effective in September of this year. It means then that sentences imposed after September *may* (though not necessarily nor inevitably) be higher than those imposed in previous years;
- sentencing is not an exact science; it requires that the judge applies his/her mind to all of the facts and surrounding circumstances of the case in issue. The aims of sentencing, which constitute the philosophy behind the sentencing guidelines, are punishment, retribution, deterrence and rehabilitation.
- sentencing necessitates a consideration of aggravating and mitigating factors; often times, in serious cases like murder, the former outweigh the latter;
- the guidelines are just what they are – guidelines; they are not meant to be rigidly applied;
- the aim of these guidelines is not to ensure uniformity of sentences, but consistency in sentencing. There is a big difference between the two; the first presupposes that all cases, irrespective of their nuances, should receive the same sentence, while the latter recognises the individualised nature of sentencing, and presupposes the use of a defensible methodology to arriving at similar sentences in similar cases;
- in an appropriate, exceptional case, a judge may decide to not apply the relevant sentencing guidelines, but must provide cogent reasons for doing so;
- the guidelines are under constant review by the Sentencing Advisory Committee to ensure they are working as intended;
- the guidelines will apply not only to murder, but rape, theft, robbery, death by dangerous driving etc. You will, therefore, see changes to the methodology and possibly the extent of sentences for these offenses in the coming months/years.
Under the new guidelines, determinate sentences for murder may now begin at 30 years imprisonment for murder, depending on the circumstances of the case in question, within a range of 30 – 40 years.
Let s say that a Judge chooses to begin the sentencing exercise at 30 years, based onthe seriousness of the offense and its consequences. He may thereafter adjust this notional figure based on the aggravating circumstances of the offence (e.g. premeditation, use of weapons, sexual violence as part of the crime etc), as well as mitigating factors of the offence, if any. This figure may then further be adjusted within the range to account for aggravating and mitigating factors affecting the offender (e.g. history of abuse, mental impairment, good character etc).
Thereafter, an appropriate adjustment may made (i.e. a discount) for any plea of guilty, if applicable. Sometimes, multiple offenses are in issue; in such cases, the judge must adjust this figure by on the basis of the totality principle. This principle of totality requires a court, when sentencing for more than one offence, to pass a sentence that reflects the total criminality but which is just and proportionate so that the sentence does not exceed what is necessary to reflect the overall offending behaviour.
Credit must then be given for time served on remand.
Having followed these steps, the judge will give reasons explaining the construction of his/her sentence in a way that can be readily understood by the defendant. He/she will also provide reasons if he/she departs from the guidelines.
It might be, then, that when all the aggravating and mitigating circumstances (affecting the offence and the offender) are considered, the judge arrives at a sentence of around 31 (or 32, or 33 etc.) years imprisonment. This will likely be defensible because the judge would have applied the methodology outlined in the guidelines. That said, if the circumstances are sufficiently exceptional, the judge may, however, depart from these guidelines, but must give reasons for doing so.
Of course, offenders who are dissatisfied with the sentence in question may apply to the Court of Appeal for a quashing/reduction of the sentence in question.