With judges coming under pressure over the prison terms handed down to persons who pleaded guilty on the recently introduced Sentence Reduction Days, the Criminal Case Management Steering Committee has issued a release setting out the consideration of members of the judiciary in handing down sentences. This is a lightly edited version of that release.
Concern has been raised in the public domain regarding the appropriateness of some sentences passed after guilty pleas entered by defendants on Sentence Reduction Days.
Jamaica's high crime environment and the gruesome nature of some crimes understandably drives high public interest in sentences passed.
Sentencing involves a difficult balancing act. It requires considering in each case a wide array of circumstances relating to the victim, offence, defendant, the families of the victim and defendant, their communities and the wider public interest.
It is important for the following to be considered in the assessment of sentences:
- It has always been the law in all common law legal systems, such as exists in Jamaica, that a guilty plea entitles a defendant to a lesser sentence than would have been passed if a conviction were obtained after a trial.
- Based on case law, historically, the reduction after a guilty plea was between a fifth and a third deducted from what the sentence would have been, if there had been a conviction after a trial. How early the plea was entered was one of the factors that influenced the level of sentence reduction.
By The Criminal Justice (Administration Amendment) Act, 2015 Parliament codified, extended and formalised the practice of sentence reduction after guilty pleas. The legislation provides that different levels of reduction should be applied, depending on when the guilty plea is entered. The earlier the guilty plea, the greater the reduction. The maximum reduction is "up to 50 per cent" for offences other than murder, if the plea is made on the first relevant date (the first court date after the defence has adequate disclosure and knows the case against the accused). The minimum reduction is 15 per cent if the plea is made after the trial starts but before verdict.
If the offence is "non-capital murder" and the accused has not been previously convicted of murder the maximum discount is 331/3 per cent, if the plea is made on the first relevant date. The minimum discount is also 15 per cent for murder cases, where the plea is entered after the trial starts, but before verdict. For murder the sentence cannot, even with discount, be below 15 years.
No percentage reduction is automatic. A sentence is always dependent on a number of factors including: the time the plea is entered, the offence to which the plea is offered and accepted (which may be a lesser offence than initially charged), the unlawful conduct, the harm intended and actually caused, and all other relevant aggravating and mitigating circumstances. There are often difficult cases where the conduct is reprehensible, but culpability is reduced by several factors. Sentencing has to address all these realities.
Case law based on international norms, requires that all time spent in custody before conviction, (by guilty plea or trial), is credited to the defendant's sentence.
Therefore, if a defendant has spent three years in custody before entering a guilty plea and the appropriate sentence is assessed to be seven years, the three years has to be deducted from the sentence declared. The sentence would therefore be pronounced as four years, even though the true sentence is seven years. This fact has negatively affected the perception of some sentences handed down.
Sentencing guidelines, which have been in use in draft form for some time, were formally launched on January 19, 2018. They will increasingly enhance the predictability and consistency of sentencing practice.
The Sentence Reduction Days initiative rests squarely within the existing laws of Jamaica. The only "new" aspect of the initiative is that on days designated as "Sentence Reduction Days", every defendant entering a guilty plea, is deemed to be pleading guilty on the 'first relevant date'.
Thus the initiative affords defendants the opportunity to benefit from the statutory maximum discount. If the circumstances meet the stipulated criteria, there is no sentence passed on a sentence reduction day that cannot be passed on a day not so designated. The sentences that have been passed are no more or less than what the law mandates, within the boundaries of the remaining discretion afforded judges under the law. Reduction of sentences occurs every day in the courts, based on guilty pleas, in accordance with the law.
When compared with other jurisdictions such as the United Kingdom, Canada, the United States, and many of our Caribbean neighbours, Jamaica has a much higher crime rate and a significantly lower incidence of cases being resolved without trial by plea bargaining, guilty pleas and withdrawal of charges where appropriate. The Sentence Reduction Day initiative is an attempt to familiarise defendants and the wider public with the time-sensitive nature of guilty pleas. It encourages the early entering of guilty pleas by defendants who are guilty of the offences charged or of lesser offences. Guilty pleas spare victims and witnesses the trauma of having to go through trials, the uncertainties of the trial process and the society the costs of mounting prosecutions in those cases.
Sentencing practice will always remain accountable to relevant guiding principles of law and sensitive to appropriate public sentiment.
However, it should be recognised that blaming any one group or part of the process within the criminal justice system will not address the fundamental reality of Jamaica's unacceptably high crime rate. The underlying moral and social factors which drive the incidence of crime need to be systematically addressed by us all, in the several co-reinforcing spheres of life, that make up the fabric of society.