Sentencing Policy of the Court
DURING THE sitting of the Court of Appeal in December 2004, the Chief Justice, Sir Dennis Byron, voiced his concerns about the widespread inconsistencies in sentencing policies that were coming out of the courts in criminal matters as a result of the vast discretion of judicial officers. He noted that the matters were all serious and that they were occurring with “alarming regularity” before the courts.
The Chief Justice was convinced that comprehensive sentencing guidelines, ideally, should be informed by consultation with various interest groups, including law enforcement agencies, judicial officers, the executive and parliament. He also felt that the public should be involved, as they were most affected by sentencing policies. But with 12 magisterial matters and one High Court matter before the members of the Board, the Chief Justices thought that they would briefly examine sentencing objectives and the factors that would inform a judge or magistrate in fulfilling his or her task.
He further pointed out that they did not intend to outline a system of tariff with set penalties.
The matters before the Board involved some of the serious crimes in St.Vincent and the Grenadines and included robbery, grievous bodily harm or wounding, burglary, use of and possession of
illegal drugs with intent to supply, illegal use and possession of firearms and discharge of a weapon. The objectives were set out in the Case of Desmond Baptiste, a case that had come from the High Court. In that case the Chief Justice acknowledged that the most “difficult and controversial area for the sentencer is fitting the punishment with the crime committed.”
Noting that the legislation in St. Vincent did not reveal any purpose for sentencing, the Chief Justice set down some objectives he thought were relevant to our situation, namely: 1. to punish the offender to an extent and in a manner which is just in all the circumstances; or 2. to deter the offender or other persons from committing offences of the same or a similar character; or 3. to establish conditions within which it is considered by the Court that rehabilitation of the offender may be facilitated; or 4. to manifest a denunciation by the court of the types of conduct in which the offender is engaged; or 5. to protect the community from the offender In laying down these objectives the Court of Appeal identified with the classical principles of sentencing, namely, retribution, deterrence, prevention and rehabilitation.
Factors guiding the decision
Sentencing could be likened to walking the tight rope. It requires all the balancing skills that the judicial officer has to offer. The judge/magistrate must look at statute and the common law for guidance. The punishment that is imposed depends on the crime. Fines and/ or custodial sentences (imprisonment) are set by statute. The general rule is that length of sentence is stated as not exceeding a certain
maximum. This gives judicial officers vast discretion and a wide range in which to maneuver. The 2004 Firearm Amendment Act, imposes a fine for possession of unlicensed firearms “not exceeding twenty thousand dollars ($20,000)” and imprisonment “not exceeding seven years” or both. On the other hand, the 1999 Amendment imposes custodial sentence for possession and use of illegal firearms and ammunition.
The practice in sentencing is for the judicial officer to look at the mitigating as well as the aggravating factors and apply these to the particular circumstances of the case. The general mitigating factors are the age of the defendant, which is only relevant when the crime is insubstantial; no prior criminal record; early guilty plea, which is only relevant when the person is not caught “red handed”, and the personal circumstances of the defendant. The aggravating factors relate to the circumstances of the case, whether the crime was premeditated or whether the offender had a criminal record. It also takes into account the injuries inflicted or the amount stolen and other factors which contribute to the seriousness of the crime.
● Ada Johnson is a solicitor and barrister-at-law.
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