With the increased focus on the criminal justice system in Trinidad and Tobago, the issue of sentencing has come under greater scrutiny. How does it work? Why not the maximum sentence for each offender? What guides Judges/Magistrates in coming to their sentencing decisions? Let’s dive into it.
What is sentencing?
Sentencing is the punishment that is given by a Judge/Magistrate to someone who is convicted of a crime. Sentences can be classified in various ways, but the most common classification is that of custodial (sentences involving a prison term) and non-custodial (sentences not involving a prison term). Examples of non-custodial sentences available in Trinidad and Tobago include but are not limited to fines, community service and bonds to keep the peace. The Death penalty is an exception to this classification because while it does involve some incarceration while awaiting the implementation of the sentence, the penalty is the loss of the life of the Prisoner.
What should a sentence entail?
The judicial education guidelines on sentencing require sentencing to be legally accurate, commensurate with the offence committed and fair in all the circumstances. Key in this process is that the offender must understand and appreciate the reasons behind the sentence that is given.
What are the aims of sentencing?
In coming to a sentence, the judicial officer is primarily guided by the aims of sentencing. These aims are:
- Punishment of the individual offender
- Deterring potential offenders
- Deterring the particular offender from re-offending when released
- Preventing the particular offender from re-offending by incarceration for a certain period and
- Rehabilitating the particular offender so that he might resume his place as a law-abiding member of society.
These aims are applied on a case-by-case basis and different aims may be of greater importance depending on the circumstances of the offence and the offender that is being considered. For example, the rehabilitative aim may take greater precedence where the offender who is being sentenced is a minor as opposed to an adult who is generally thought to bear great responsibility for their actions.
Why doesn’t each convicted offender get the maximum sentence?
Sentencing is an individualized exercise, meant to punish the particular offender for the offence that they committed. Offences can be committed in many ways, and it would be unfair to give everyone the same sentence without considering the particular facts of each case. A good example of this is the offence of wounding with intent which is committed when one causes any wound with intent to do serious harm. Wounds may differ from a slice across the palm with a knife to several chop wounds that require significant medical attention and hospitalization. Should the persons who inflict either type of wound be given the same sentence given the marked difference in the extent of the injury? The simple answer is NO.
How are sentences calculated?
In addition to the aims outlined above, judges are also guided in the calculation of a sentence by the principles laid down in Aguilera et al v The State. In this case, the Court of Appeal gave guidance which allows the Judge/Magistrate to methodically calculate the sentence. This also allows the offender and the public to understand how the sentence was derived. Following the case of Aguilera, the Court must do the following:
- Ascertain the starting point for the sentence – The starting point is the base value at which the sentence starts. This is calculated by the Court considering the aggravating and mitigating factors of the offence itself i.e. gravity, circumstances of the commission itself (multiple assailants, use of a weapon, degradation of the victim etc.)
- Adjusting the starting point (if necessary) based on a consideration of the individual offender – After ascertaining the initial starting point, the Court will then consider the aggravating and mitigating factors of the offender himself in deciding whether the initial starting point will be adjusted upwards or downward. Example of these factors include but are not limited to previous convictions of the offender or previous good character, level of culpability in the commission of the offence, efforts made at rehabilitation while facing the charges.
- Determine the level of reduction for the guilty plea – A person who pleads guilty is entitled to have a reduction in their sentence as a recognition of their contrition and the time and resources that have been saved by not proceeding to trial. The discount is usually in the amount of 1/3 of the proposed sentence, but it can be adjusted upwards or downwards depending on the circumstances. Any deviation from the usual grant must be clearly explained and expressed.
- Deduct the full time spent in pre-trial custody – Any person who is sentenced for an offence is entitled to have all the time spent in custody awaiting trial deducted from their sentence. This deduction often leads to members of the public thinking that persons get very little incarceration for serious offences when this is not the case as the time spent awaiting trial counts towards their sentence as well.
In light of the above, we can see that a sentence is not a magic figure plucked from the air by a judicial officer nor is it a robotic application of the principles outlined above. It is meant to be a just and fair punishment for the offence committed.
Submitted by:
Raphael Morgan
Deputy Chief Public Defender
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Published in The Trinidad Express News Paper on Wednesday 4th August, 2023
