AuthorGeorge Belnavis
ProfessionAttorney-at-law of over 30 years practice at both the Public and Private Bar and is currently Senior Tutor II at the Norman Manley Law School, Kingston, where he has taught for nearly 20 years
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Procedure before Sentencing
Once the accused has pleaded guilty or has been found guilty by the
Magistrate, the Court’s task is to sentence him. The Court may either
embark on sentence immediately after conviction, or it may adjourn. During
the period of adjournment the offender may be remanded in custody or be
given bail at the Court’s discretion.1 Where the offender has pleaded not
guilty and has been convicted by the Magistrate, the latter, having heard
the evidence, knows full well the facts, and does not need to be reminded
of them. If the offender pleads guilty, on the other hand, it is prosecuting
counsel’s duty to summarise the facts of the offence. He does this partly to
assist the Judge, partly to establish the prosecution’s version of how the
offence was committed and partly so that the public may know what
occurred and form their views on the justice of the sentence passed.2 As
Emmins further points out ‘at the sentencing stage the prosecution takes a
neutral attitude towards the case. They do not suggest any particular
sentence, nor do they advocate a severe sentence. Prosecuting counsel is
still to regard himself as a Minister of Justice conceding to the defense the
points, which can fairly be made on the offender’s behalf.’3
In the leading case of Newton (1982) 77 Cr. App. R.13 the court held
that where there is a plea of guilty but a conflict between the prosecution
and the defence as to the facts, the trial judge should approach the task of
sentencing in one of three ways, a plea of not guilty can be entered to
enable the jury to determine the issue, or the judge himself may hear no
evidence and listen to the submissions of counsel, but if that course is
taken and there is substantial conflict between the two sides, the version of
the defendant must as far as possible be accepted. The Jamaican Court of
Appeal adopted the principles enunciated in Newton in R v. Pearlina Wright
186 / Criminal Practice and Procedure
(1988) 25 JLR 221. The complaint by the prosecution was that the
appellant was traveling in a pick-up on January 5, 1988 and the complainant
was also traveling in that pick-up. The prosecution said that there was a
dispute between the parties and the complainant is alleged to have used
insulting words to the appellant referring to her body odour, whereupon
she took a knife and inflicted an injury to his finger and an injury to his
right leg and his right lower foot. When she was spoken to by somebody,
said the prosecution, her remark was ‘a should a kill you’, referring to the
The appellant gave an explanation and her explanation was that she had
a knife on her on that day because in her occupation she has to carry large
sums of money. As she was riding in this pick-up she felt a foot touching
her private parts and she asked the person to move the foot. The person
rather than removing the foot put it back and then she noticed that it was
the foot of the complainant. She said she spoke to him a second time and
he used dirty words referring to her private parts. She said he kicked her in
the region of her private parts and then she lost control and the injuries
were inflicted. Rowe, P. in delivering the judgment said,
The rule of law is that when a person pleads guilty, the learned trial
judge, as the tribunal of fact, should sentence on the set of facts which
are most favourable to the accused.
Where either the accused pleads guilty or he is tried and found guilty he
has to be sentenced by the Court. The accused is usually asked, ‘Do you
have anything to say before the sentence of the court is passed upon you?’
At this stage counsel for the defence will make a plea in mitigation.
Counsel for the defence, or if the accused is unrepresented, the accused
himself, will attempt to secure the least sentence from the Court. Usually
in a plea of mitigation the defence will refer to the following where
(a) The fact that the accused has no previous conviction.
(b) The fact that the accused pleaded guilty.
(c) The fact that no violence was actually used.
(d) The fact that the accused was of good character prior to his conviction
(and may call character witnesses to this effect).
(e) Family background of accused including the number of dependents
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he may have.
(f) The age of the accused.
(g) The fact that accused person was of a previously unblemished character
and should be given a second chance.
Principles of Sentencing
A grave responsibility is placed upon those who pass sentence on criminal
offenders. It is their duty to protect the public and to see that there are
effective deterrents to crime, but at the very same time they must never
lose sight of the personal needs and problems of the individual offenders
who come before them. Upon the way in which the Court decides to deal
with him may depend on the offender’s chances of turning away from law-
breaking and learning to go straight and lead a useful life. The interests of
the public and the offender need not be in conflict; both can be served by
matching the treatment of the offender as well as to the offence (see Foreword
of a Handbook issued by the British Home Office entitled ‘The Sentence
of the Court’).
The general purposes of the provisions governing the definition of offences
in the American Law Institutes Model Penal Code could be taken as a
statement of the proper objectives of the criminal law in a modern legal
system. The purposes are:
(a) To forbid and prevent conduct that unjustifiably and inexcusably
inflicts or threatens substantial harm to individual or public interests;
(b) To subject to public control persons whose conduct indicates that
they are disposed to commit crimes;
(c) To safe-guard conduct that is without fault from condemnation as
(d) To give fair warning of the nature of the conduct declared to be an
(e) To differentiate on reasonable grounds between serious and minor
Crime has always been regarded by the courts as a moral wrong and conduct
demanding retribution. The law is based on an assumption that, in the
absence of evidence to the contrary, people are able to choose to do criminal
acts or not and that a person who chooses to commit a crime is responsible
for the resulting evil and deserves punishment. The courts have generally
seen their task as one of fitting the penalty to the particular degree of
iniquity and dangerousness of the offender’s conduct on the particular

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