Sentencing rules

The question of the sentencing of criminal offenders in cases of manslaughter is once again occupying the attention of the courts and with it the guidelines set out in the seminal case of Pierre Alexander Lorde v The Queen, Criminal Appeal No. 11 of 2003.

The Court of Appeal in the Lorde case attempted to set out for the benefit of sentencing judges the approach or the methodology that should be applied where custodial sentences (imprisonment) were to be imposed on offenders.

In recent days and for the umpteenth time, one of our courts has indicated that the particular case under consideration falls outside the guidelines set by the Lorde case resulting in difficulty in apportioning a sentence to an offender initially charged with murder but having pleaded guilty to the lesser offence of manslaughter.

Since sentencing is really more art than science, it was my understanding of the judgment of the Court of Appeal that it was attempting to bring clarity and transparency to the approach to be taken rather than setting the equivalent of statutory minimum sentences.

This oft repeated stance therefore fills me with confusion since in delivering the Lorde judgment the Court of Appeal was at pains to state that “[t]he guidelines which we now issue are not to be construed as putting sentencers in a kind of strait jacket or fettering in any way the judicial discretion which must remain at the heart of the sentencing process”.

In the event that there was any doubt in relation to what the court was trying to achieve, it was reiterated at the end of the judgment that “we fully recognise that there may, from time to time, be the odd case whose special or exceptional facts fall outside these guidelines. Nothing that we have said above should be construed as fettering the discretion of judges to deal with those special or exceptional cases as the justice of the cases requires”.

The approach to sentencing commences with an examination of the provisions of the Penal System Reform Act, 1998, specifically sections 35 to 37. The statute pays homage to the principles of deterrence, “just deserts” and the overriding factors of protection of the public and maintaining faith in the process of criminal justice.

The procedure outlined in the act requires the court to consider (1) whether the offence is so serious that only a custodial sentence should be imposed; and (2) the aggravating and mitigating factors associated both with the manner in which the offence was committed and the personal circumstances of the particular offender.

The court took the opportunity to outline some of the usual aggravating and mitigating factors which could reasonably affect the length of sentence. Aggravating factors include but are not limited to: (a) planning or premeditation; (b) use of a firearm or dangerous weapon; (c) being armed with a weapon in advance; (d) excessive force in self-defence …; (e) history of violence in domestic cases; (f) previous convictions; (g) lack of remorse. Mitigating factors or factors working in the offender’s favour would include (a) being provoked by the deceased; (b) evidence of self-defence; (c) age; (d) clear evidence of remorse; (e) an early plea of guilty.

While acknowledging that “cases of manslaughter vary infinitely therefore, so does the punishment for it” the court took the opportunity to issue guidelines as set out in the table below.

Hopefully the reader is now in a better position to judge the sentences reported in the media as having been imposed by our courts and I await the decision of the Court of Appeal in the Kemar Nurse case in which the guidelines are currently under consideration.

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