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Judges warned to sentence appropriately despite desires of legislators

Published:Monday | August 15, 2016 | 8:00 AMJovan Johnson

The Court of Appeal has used a judgment to tell the Jamaican Parliament that the judiciary is bound to consider established rules in sentencing people and not just the intent of elected representatives.

The top court made the position clear in a decision last month in which a three-member panel agreed with Meisha Clement that her sentence last year to eight years' imprisonment was "manifestly excessive" and reduced it to five years.

She escaped getting the maximum 15 years on conviction for possession of access devices - credi and debit cards.

Justice Dennis Morrison, the Appeal Court president, who wrote the decision, also acknowledged again that judges were facing problems in arriving at "appropriate" sentences under the Law Reform (Fraudulent Transactions) (Special Provisions) Act, which, he wrote, was designed to respond to an "urgent social problem".

"In applying the legislation, it is, of course, the duty of the court to give effect to the intention of Parliament," he wrote in the 37-page judgment.

"But once provision is made for a range of sentencing options, it is equally the duty of the court in each case to determine the appropriate sentence to be applied to the particular offender in accordance with accepted sentencing doctrine, as laid down by Parliament itself in other legislation such as the Criminal Justice (Reform) Act or in previous decisions of the court," Dennis said.

Regarding the difficulties faced by judges, Morrison said "new legislation such as the act (lottery scam) may pose special challenges for sentencing judges seeking to locate and impose the appropriate sentence in an unfamiliar legal and factual context".

"It is in acknowledgment of this reality that we have chosen in this judgment to review in detail some of the generally accepted principles of sentencing, with a view to providing guidance to judges confronted with sentencing problems under the act."

WRITTEN OPINION

Also in July, the Appeal Court released its written opinion on another lottery scam case in which it cut a five-year sentence for Kurt Taylor to three years.

Justice Frank Williams, who wrote that decision, said judges' starting point in sentencing "ought never to be the maximum sentence".

He also highlighted "challenges in ascertaining the average, or norm, or range of sentences to use as a starting point" under "new and relatively new legislation".

"The imposition of a custodial sentence should never be regarded as automatic for an offence of this nature, the deleterious and far-reaching effects of lottery scamming notwithstanding," he added.

Defence attorney Bert Samuels, who argued against the sentencing provisions in the lottery scam act, said he understands the problems faced by local judges.

"We are going out of line to satisfy an external entity," he told The Gleaner.

Jamaica enacted the lottery scam law in 2013 under pressure from the United States to respond to Jamaicans fleecing its citizens of millions while fuelling a crime-wave back here.

The Police High Command has in the past argued that the sentencing in lottery scamming cases is not harsh enough to discourage the crime.

jovan.johnson@gleanerjm.com