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PRINCIPLES OF SENTENCING Five objects The five aims of punishment are:

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 vis a vis potential offenders. The offender must be punished appropriately to deter other like-minded offenders from engaging in that form of deviant behaviour. Deterrence vis a vis 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 refoim his ways to become a contributing member of society.

These principles were laid down by Wooding C.J. in the case of Benjamin v. R. In the case of Edwin Farfan v. The State it was stated that in some cases on object may be predominant while in other cases, other objects may prevail. The court felt that the objects of sentencing as declared in Benjamin should not be 'overstrained'. Each case must depend on its own circumstances and carious factors must be considered by the court in deciding which principle of sentencing should be predominant. Factors taken into account The prevalence of the offence in society. Where the offence is prevalent, the overriding consideration should be deterrence of both potential offenders and the particular offender: Farfan. In this case, the court held that the prevalence of rape in the society was such that the court owe a duty not only to the victim but indeed to the society as a whole to imposes such punishment as would reflect it utter abhorrence of the deed and which at the same time would serve as a deterrent to other would be perpetrators of this abominable crime. In the case of Davies a solicitor use client's money to further his business deals. Lawton held that the solicitor breached the trust of his client and that the retributive and deterrent aspect has to be considered. Despite the fact that the solicitor pleaded guilty and co-operated with the police, the Court of Appeal rejected any consideration that hardship to his family should be a matter for consideration in reducing sentence. The court considered that the solicitor brought this upon himself that being struck off the rolls, having to live on social security and take jobs such as playing piano for someone and working as a clerk. Lawton LJ, held that there was no greater breach of trust than a solicitor acting as such and so in relation to the deterrent policy he held that all persons who are in certain position of trust must know that if they are in breach of that trust they must be punished and punished severely. Similar sentiments were expressed in the case of Nandlal v. The State (No. 2) where the Court of Appeal refused to allow the calculation of time from date of conviction in a case of where a magistrate was convicted of corruption involving a bribe to dismiss a case. The nature and circumstances of the offence. In Farfan, the court considered that the conduct of the appellant was reprehensible. He was the 44 year old uncle-in law of the victim, who was 11 years

old at the time of the incident. The court said that he had betrayed the confidence reposed on him and felt that the incident could leave psychological scars on the victim for the rest of her life. He was sentenced to 14 years' imprisonment and 15 strokes of the birch. Previous convictions for like or other serious offences. This could lead the court to think that the defendant should be kept away from society as long as possible. In the case of Natasha De Leon, the defendant who had been found guilty of manslaughter, had a previous conviction for murder in the same month. The trial considered her a menace to society and the society needed to be protected from her and sentenced her to life imprisonment. On the other hand is the defendant has a clean record it would be considered less of a danger to society, especially is violence was minimal in the commission of the offence. The court may more be inclined to concern itself with the rehabilitative aspect of punishment along with the basic need for deterrence of other potential offenders. Where a defendant is very young this is a matter of significant consideration for the court as the court would think that he or she has their whole life ahead of them and should be given a chance. In the case of Bird the defendant had took a vehicle without the consent of the owner and committed several driving offences. The English Court of Appeal weighed the fact that the defendant has accelerated towards the police and collided with two of them against the fact that he was only 17 years old and has pleaded guilty. He was given 15 months. The defendant pleading guilty. This saves the court time and expense, both of which are relevant consideration and the victim the trauma of giving evidence. More importantly, the fact that the defendant has waived his rights to require the prosecution to prove its case may be taken to be indicative of remorse and / or desire to reform. The court may think that there no need to keep the defendant away from society for very long or deter him from committing further crimes. In the case of Farfan the Court of Appeal because of the guilty plea had reduced the sentence from 20 years to 15 years. There is no set discount for a guilty plea. Where a defendant pleas guilty he must be given a lesser sentence all things being equal, to that of a co-defendant who is found guilty at trial.

TYPES OF SENTENCES Absolute discharge A court may, where it considers that it is inexpedient to inflict punishment and a probation order is not appropriate, discharge an offender absolutely. In such a case no conviction is recorded against the defendant, even though he is guilty of the offence. In Barbados, section 3 of the Penal Systems Reform Act 1998 provides for absolute discharge by any court, which means it is available at both summary and
(a)

indictable trial. Conditional discharge A court may discharge an offender on condition that he commits no offence during a specified period. In such a case, the court must explain to the offender the consequences of the order in that he should commit another offence during the period of the conditional discharge he will be liable to be sentenced for the original offence. Note section 3(2)and (3) of the Penal Systems Reform Act. Once no offence is committed, the defendant is absolutely discharged with no offence recorded against him.
(b)

In a conditional discharge, the defendant signs no bond of good behaviour and the only condition is non-commission of any offence for the specified period. Power to grant a conditional discharge must be founded in statute and it is usually stated as an alternative to absolute discharge. Binding over order This order may one of two types, both of which involve the offender signing a bond to be of good behaviour for a specified time. The first type of bond is one where the offender is bound over for a specified period (usually not exceeding three years) to keep the peace and be of good behaviour. This bond is a recognisance in a specific sum which may be protected with sureties. It is usual to ask the offender if he consents to being bound over, but in the absence of any assertion by the defendant to the contrary, this will be assumed: R v. Central Criminal Court ex p Boulding. ex parte Boulding held that the offender must be given an opportunity to be heard as to thc amount of the recognisance contemplated. if the offender refuses the condition the court may inflict another penalty. This type of sentence is appropriate for offences where the defendant has shown a tendency to violence of breaches of the peace. With this type of bond, if the defendant fails to keep the peace during the time specified, he may be called upon to forfeit the sum stipulated in the bond. There is in general no condition that he must come up for sentencing if he breaks the bond. It appears that power to impose this type of bond must originate in statute. The other type of bond is that by which a defendant agrees to be bound over on condition that he comes up for judgment when required. It has been held that this is an old common law power, so that it is available to judges on indictable trial: Williams. Under the common law, the conditions could include being of good behaviour, or that he move to another place, presumably for the purpose of rehabilitation. It is vital that the defendant consents to the conditions and this should be made clear to him, even on the threat of imprisonment otherwise. Williams The defendant, a British citizen, was released on a bond condition that he leave for Jamaica within 10 days and remain there for 3 to 5 years. Although his parents were Jamaican, the defendant had never been to Jamaica and had been born in England. The defendant resisted the conditions, but it was nevertheless imposed by the sentencing judge.
(c)

HELD: The sentence must be quashed since the power to impose conditions on a binding over order can be exercised only if the subject consents or acknowledges himself to be bound by the terms. The effect of a bond is that the defendant is not sentenced. In this regard it is different from a suspended sentence. (d) Suspended sentence This exists as a sentencing alternative in Barbados. Note section 6 of the Penal Systems Reform Act. A suspended sentence is a term of imprisonment of up to 2 to 3 years which does not take effect immediately. Sentence is passed on a person on the same basis that ordinary imprisonment would be, i.e. imprisonment is considered the appropriate sentence. The only difference is that the offender is not asked to serve the time because of exceptional circumstances

operating in his favour. Youth, good character and the fact of pleading guilty are not, in isolation, considered exceptional circumstances so as to justify the imposition of a suspended sentence. The mental health of the defendant may be considered such an exceptional circumstance: Khan. The court will consider all the circumstances of the case to determine if they can be said to amount to be exceptional' circumstances. One consideration may be whether the defendant's personal situation will make it difficult for him to serve the sentence in prison. This may be combined with a financial order such as monetary compensation so as to make it clear to the community that the defendant is not being 'let off' the consequences of his actions. Legislation provides that a suspended sentence may not be given with a probation order since the latter is a supervisory form of release given in lieu of other sentences. If the defendant should commit another offence during the period of the sentence, the sentence may be activated. The other offence need not be of the same type. In deserving cases, the court has the power to substitute a lesser period of imprisonment for the original sentence, previously suspended. It is usual, and in some cases required in statute, that a court should explain to the defendant the nature and consequences of the suspended sentence, in particular his liability if he commits a further offence during the period of the sentence.

Probation This is a form of supervisory sentence and is widely used for juveniles. A probation order simpliciter is usually made in lies of other forms of punishment. A probation order may be imposed either at summary or indictable trial. While some statutes simply provide that a convicted person may be granted probation in lieu of other punishment, certain jurisdictions permit probation on summary conviction without any conviction being recorded. This is not the case with respect to indictable offences and it appears that the defendant's conviction will be recorded if he is found liable on indictable conviction, even though he is put on probation. A probation order in general ought not to be for longer than three years. If the order is breached during that time, the defendant will be brought before the court for sentencing in accordance with statute. In deciding if to impose probation, a court, as directed by statute, must consider the nature of the offence and the character of the offender. Other factors which may be taken into account include the age, health or mental condition of the offender and the seriousness of the offence. In imposing a probation order, the court must explain to the offender the duration and requirements of the order. The requirements are meant to ensure proper supervision by the probation department and may include stipulations as to how often and where the defendant should submit to the supervision of the probation officer who is assigned to supervise him. The order may also require that the defendant satisfy certain requirements as to residence as the court directs and can also prohibit his association with undesirable persons. Community service The community service order may be used when an adult offender is before the courts for the first time. It promotes the ideas of rehabilitation and making reparation to the victim, but does not convey the impression that the offender is being let off'. Note section 13, 14, 17 and 18 of the Penal Systems Reform Act. Community service is a measure available to persons over 16 and allows a convicted offender to serve the whole or part of a sentence in lieu of imprisonment by performing unpaid work. There is thus no question of not recording a sentence; it is simply that the sentence is served through specific work or labour in the community which is specified by the court in sentencing. The maximum numbers of hours which must be served is 240 hours. A defendant must consent to community service. If he does not consent, another sentence will be passed. The breach of a community service order without reasonable excuse may lead to the court revoking the order and dealing with the offender as provided for by statute.

Monetary penalties A fine is the most frequent form of punishment imposed on offenders who have committed summary offences. It has been held that there is no common law power in a judge trying a felony to impose a fine: R v. Ramcharan. An alternative period of imprisonment is stipulated for default in payment of any fine imposed, whether the fine is not paid at all or not paid in time. In general, both the maximum amount of the fine and the alternative period of imprisonment are set by the statute defining the offence for which the offender has been convicted. In determining the amount of the fine, the court should take into account matters such as the means of the defendant, and his employment record. In the case of a poor defendant, a high fine might mean that he will have to serve the alternative period of imprisonment for default, but a rich defendant can evade imprisonment as he can with impunity afford very high fines. Other factors such as previous convictions and the age of the defendant will also be relevant. Statute has intervened to permit courts to allow a deserving defendant time to pay the fine. This 'time allowed' must be requested by the defendant, usually upon the enquiry by the sentencing magistrate if he wishes such time. Practice dictates that the court should take into account the age and means of the defendant in setting the time allowed to exercise the option of a fine. If a defendant cannot pay the fine in the time set, he may ask for an extension of time. Imprisonment This is the usual mode of punishment passed on a defendant convicted of an indictable offence. The maximum period of imprisonment for any offence is determined by the statute that either creates the particular offence or provides the penalty for the particular offence. Life imprisonment is available for offences such as manslaughter, rape or trafficking of dangerous narcotics. Where life imprisonment is specified as the sentence in the ordinary way, the prisoner's case (and sentence) comes up for review usually every four years. In general, a sentence of imprisonment is imposed with hard labour. The chief exceptions to this are where the sentence is in respect of criminal contempt or if the health or age of the offender dictate otherwise.

(g) Consecutive/concurrent sentences


Where a defendant is convicted of two or more offences each for which he is sentenced to imprisonment or where he is already serving a sentence of imprisonment, the sentencing court will have to decide whether the sentences should run concurrently or consecutively. In general, if the offences arise out of the same incident, the court will order that they run concurrently, i.e. they are to be served together. If the sentence imprisonment is imposed on a defendant who is already serving another sentence which is unrelated, the new sentence will generally be ordered to run consecutively to the existing sentence. If the defendant is serving more than one sentence, the new sentence should be consecutive to the total period of imprisonment to which the period is then subject. (j) Corporal punishment This is a form of physical punishment which may be imposed on male persons who have been convicted of violent crimes such as sexual offences, wounding and robbery. This is invariably on indictable conviction. It is in addition to another sentence, usually a period of imprisonment, and is not in lieu thereof. Persons convicted of and sentenced for capital offences are not liable to corporal punishment. It has been held that it is desirable that a judge, before passing a sentence of corporal punishment, should invite counsel to address the court on the issue. In the case of R v.

Pryce Carey J considered that in the interest of justice that counsel should have been invited to address the court on the issue of corporal punishment.

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