How do Judicial Officers really sentence? This is a question that is burning in the minds of many citizens of Trinidad and Tobago when they read articles such as “Man guilty of murder gets conditional release” or “Point Fortin man placed on bond for 2008 robbery”. Given that there is an ever-increasing rate of criminal activity nationwide, some may wonder what exactly the Judge and Magistrate (now known as District Court Judge) is considering when passing sentence on persons convicted of crimes. To answer this question, we must look at the law relative to sentencing.
What are the Objectives of Sentencing?
The Court of Appeal in the case of Benjamin v R in outlined five main principles of sentencing which the court ought to take int account when sentencing a person. These principles are as follows:
- Retribution – this is in recognition that punishment is intended to reflect the denouncement by the society and legislature of the offence and the offender.
- Deterrence in relation to potential offenders – the offender must be punished appropriately to deter other like-minded offenders from engaging in that form of deviant behaviour.
- Deterrence in relation to the particular offender – here, the purpose is to seek to ensure that the offender himself is deterred from future criminal conduct by the punishment inflicted on him.
- Preventive – this is aimed at preventing the particular offender from offending against the law by incarcerating him.
- Rehabilitation – the aim is to rehabilitate the offender so that he may reform his ways to become a contributing member of society.
It is important to note that not all principles are operative during the sentencing exercise and one may be more predominant than the others. Each case must be dealt with individually and must be determined based on the specific facts.
Sentencing in Accordance with the Law
When a person has been found guilty or pleaded guilty to an offence, that person then has to be sentenced in accordance with the law. Each offence carries a maximum penalty which is either specified in statute or common law. The court has a discretion to exercise its sentencing powers based on the circumstances of each case which can either be custodial or non-custodial based on the type of offence, save and except for the offence of murder which still carries the death penalty.
What is the Procedure to be followed when Sentencing?
In 2016, the Court of Appeal in the case of Lauren Aguillera and others, saw the need to implement a methodology, which Judicial Officers ought to follow when sentencing a person who is guilty of an offence.
- First, the court must ascertain the appropriate starting point of the sentence. In doing so, the court will examine the aggravating and mitigating factors of the offence only. For example, the court will take into account whether there were multiple persons involved, if a weapon was used, as well as the seriousness and prevalence of the offence.
- After the court determines the appropriate starting point, the second step of the process is an assessment of the aggravating and mitigating factors relative to the offender. At this stage, the court will then determine whether it will make an appropriate upward or downward adjustment of the starting point or no adjustment at all. Some of the factors which the court will consider are, the previous convictions of the person, their age, their level of culpability, their conduct while in prison (if the person was in custody), the extent of the individual’s rehabilitation, and any other relevant factors.
- The third step is only applicable where the person has pleaded guilty. The accused person who pleads guilty is given usually a one third discount in their sentence. It acknowledges him/her for taking responsibility for their actions and pleading guilty to the offence at the earliest opportunity.
- The fourth and previously final step is the deduction of time spent in pre-trial custody. Any person charged with an offence is presumed innocent until proven guilty. In some instances, a person may be incarcerated for some time before accessing bail in relation to a matter which means, that the time spent in custody ought to be deducted from the final sentence.
- More recently, the Court of Appeal in the case of Arjoon added a fifth step in the sentencing process, that is, the court must now determine whether the sentence was reasonable and proportionate having regard to the circumstances as a whole. In other words, the court must be satisfied that the sentence meets the interest of justice in light of the criminality of the offence.
Each one of these steps impact upon the final sentence. A guilty plea will always receive a ‘discount’ and if time was spent in custody for the particular offence, it must be deducted from the final sentence. It may seem that sentences are too lenient but all sentences are guided by the above process.
Although judicial officers exercise their discretion differently, some more restrictively than others, there are clear and comprehensive guidelines in place to ensure that sentencing is in the interest of justice for victims, accused persons and the public at large.
Submitted by
Adaphia Trancoso-Ribeiro
Public Defender 11 Senior
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Published in The Trinidad Guardian News Paper on Friday 10th February, 2024
