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Sentencing in the High Court

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THE JURY has given its verdict and it has found the accused/defendant guilty. It is now the duty of the judge to impose a sentence in the absence of a jury. He makes an order for a special session to decide on sentence. He may order a psychological evaluation of the accused, especially in a murder case, and will solicit the aid of the government’s psychologist. He may also ask for the help of a probation officer to provide a report on the accused. It is usual for the probation officer to visit the district where the accused lives and interview persons who have knowledge of the accused. Copies of the report are served on the judge, the DPP and the defence before the day of sentencing and it is delivered in court by the probation officer in person.

The duty of the Director of Public Prosecution (DPP) is to put forward both mitigating and aggravating arguments.

These are factors that are in favour and against the accused. On the other side the defence lawyer would submit a plea for mitigation to persuade the judge to impose a lenient sentence. In doing this he/ she will solicit the aid of family, friends and any prominent individuals, like a pastor, to provide character reference on behalf of the accused.

It is usual for them to give an account of the good qualities of the accused. A mother may testify that her son has been a good boy and that his only problem is that he followed the wrong company. It is also usual to focus on difficult and traumatic experiences of the accused in his/her childhood, because it is often said that most abusers were abused and most aggressors were victims of aggression in their childhood life.

Other factors depend on the circumstances of the accused. He may be looked at favourably if he were a well behaved and hardworking person in the community. It will also be the case where he is the breadwinner of the family with important commitments provided he has no previous conviction. Depending on the seriousness of the crime the judge might impose a fine or a suspended sentence instead of a custodial (prison) sentence.

Previous convictions are considered to be aggravating factors. This means that it is not the first time that the person has had a brush with the law. The court does not look at previous convictions favourably, and a full sentence, rather than a reduced sentence, could be imposed because of the convictions. The judge may also look at factors specific to a case. For example, in an unlawful wounding case the judge may consider the senseless, violent and unprovoked nature of the attack, the weapon used and the nature and prevalence of the crime.

Mitigation is a normal part of sentencing procedure for all types of crimes, including murder. If the accused does not have a lawyer then he has to conduct his own mitigation. The plea for mitigation can only be successful if testimonies are convincing and the judge believes the accused and the witnesses. It is not unusual for offenders to plead with the judge for a second chance. It is, however, unfortunate that many do not keep away from crime and many with serious crimes most often have previous crimes. The judge uses a starting point, and go up, or down, according to the aggravating or mitigating factors. There could also be a deduction for time spent on remand.

● Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com

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