Sentencing

• Author: George Belnavis
• Profession: Attorney-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
• Pages: 185-238

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Sentencing

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Sentencing

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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

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(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

complainant.

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.

Mitigation

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

applicable:

(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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Sentencing

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 Institute’s 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

criminal;

(d) To give fair warning of the nature of the conduct declared to be an

offence;

(e) To differentiate on reasonable grounds between serious and minor

offences.4

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