A Maximum Sentence Indication (MSI), is a process whereby an accused person asks the Court to indicate the maximum sentence that would be imposed for a guilty plea. MSIs are not available to persons charged for the offence of murder, as it carries a mandatory death penalty, unless the accused person was a minor at the time of the offence.
THE PROCESS
To initiate the process, an accused person must file a Notice pursuant to the Practice Direction on Sentence Indications dated 25th August 2015.
In October 2023, the Court of Appeal in the case of Orlando Alexis v The State outlined the procedure for a MSI as follows:
Step 1 – Filing the Documents
Once the accused person has filed the MSI application, the Prosecution and Defence must file a summary of agreed facts surrounding the commission of the offence. The Prosecution also provides the Court with the accused’s criminal record (if any) as well as any victim impact statement and/or a pre-sentencing report.
The attorney should also assist the Court with relevant case law, and the aggravating and mitigating factors in the commission of the offence.
Step 2 – The Indication
Within a reasonable time, the Court must give the MSI based on the circumstances of the case. The judge need not give a detailed explanation of the aggravating or mitigating circumstances that were taken into account at this stage.
Step 3 - Time to consider the indication
A reasonable opportunity is given to the Accused to consider the MSI. If the Court does not give a deadline to provide a response, under rule 8.1 of the Practice Direction, the indication expires after five (5) working days.
Step 4 – Acceptance or Rejection
On or before the expiration of the time given at step 3 above, the Accused must indicate whether there is an acceptance or rejection of the MSI. If the accused rejects the indication given, the matter proceeds to trial. If the accused accepts the indication given, we then move to step 5 below.
Step 5 – Facts are Read into the Record
Upon acceptance of the indication, the facts as agreed to will be read into the record and the Accused is asked to confirm those facts.
Step 6 –Acceptance of the Facts
If the Accused confirms acceptance, the Accused is then arraigned and the guilty plea is entered. Once the accused pleads guilty, the court can now embark upon the sentencing process.
ACCEPTANCE OF THE MSI
When the Accused person accepts the MSI, this means that he has decided to plead guilty to the offence for which he has been charged based on the agreed facts. Once this is done, the Accused formally enters a plea of guilty after which the Court would invite submissions from the State and the Defence suggesting the appropriate sentence based on the sentencing process outlined in the case of Aguillera. The Judicial Officer has the sole discretion to impose the final sentence based on the law and the circumstances of the case.
During the sentencing process, various factors are considered such as, the aggravating and mitigating circumstances relative to the offence, as well as the aggravating and mitigating factors of the offender. The criminal record of the Accused for instance, would be an important consideration. If the Accused successfully completed rehabilitative programs during his time in custody awaiting the determination of his matter, this would be considered a mitigating factor. The Accused would also be entitled to a discount for the early guilty plea, having not wasted judicial time and resources. Additionally, any time spent in custody in relation to that specific offence, ought to be deducted from the final sentence.
WHAT ARE THE BENEFITS OF AN MSI?
An accused person has nothing to lose by applying for an MSI. It is simply an enquiry of the court, as to the likely sentence to be imposed which can be accepted or rejected. Moreover, the Practice Direction provides that the application for a sentence indication is not admissible in any subsequent trial. MSIs serve as an efficient tool to assist persons who wish to plead guilty since they know before-hand, what the maximum sentence would be. If MSIs are effectively used, and persons plead guilty, it can ultimately reduce the backlog within our criminal justice system by saving time and resources that would have been spent on a trial. It also has the additional benefit of saving the victims of a crime from having to endure the rigors of a trial and relive the trauma of the event.
It is noteworthy that both the State and the Accused can appeal against the final sentence imposed after an MSI and the Court of Appeal has the power to vary the sentence accordingly.
Submitted by:
Aleena Ramjag
Public Defender 11 Junior
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Published in the Trinidad Guardian on Friday 24th May, 2024
