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Fix sentencing error - Judges urged to treat persons who plead guilty fairly

Published:Sunday | September 11, 2016 | 12:00 AMBarbara Gayle

The recent announcement from Justice Minister Delroy Chuck that he has given instructions to the chief parliamentary counsel for changes to the plea bargaining legislation to be treated as priority should be good news to members of the private Bar.

Chuck has admitted that the ineffectiveness of the current plea bargain agreement has contributed to the backlog in courts.

According to Chuck, persons choose to go to trial because they are uncertain what sentence they will get if they plead guilty, and he has instructed that guidelines for sentencing be implemented.

Chuck's comments came days after members of the private Bar told The Sunday Gleaner that they are concerned that some judges are still having difficulty passing the appropriate sentences in cases where persons plead guilty.

The Court of Appeal has, on several occasions, issued guidelines to assist judges, and recently reminded the members of the Bench of the steps to be taken in determining the appropriate sentences.

According to attorney-at-law Lloyd McFarlane, some accused persons are reluctant to plead guilty because there is not sufficient uniformity to the 'starting point' in sentences for these persons.

McFarlane said the recent amendment to the Criminal Justice Administration Act can be of great help to clearing the huge backlog of cases in the courts.

He argued that under the amendment a judge can disregard the mandatory minimum sentence of 15 years if the person pleads guilty to specific offences.


50 per cent discount


The amendment makes provision for a 50 per cent discount when the person pleads guilty at the first opportunity. If an accused person pleads guilty before trial, then there is provision for a 35 per cent discount of the sentence.

"When clients express the desire to plead guilty, the first thing they ask is how long will be the sentence," said McFarlane.

He said his clients are very disappointed when he tells them he really does not know what the sentence will be as it depends on the judge.

According to McFarlane, some judges are using the mandatory minimum sentence of 15 years as the starting point, while he believes the starting point, must be below that.

He is one of several lawyers calling for uniformity in the starting point, and he is urging judges to get together and discuss where the consideration for a prison term should begin once the accused pleads guilty.

"Unlike other jurisdictions, Jamaican judges in practice do not promise specific sentences upon a plea," said McFarlane, who is calling for immediate changes so he will have a chance to indicate to his clients the type of sentences they are likely to get if they plead guilty.


Lottery-scamming cases


Last month, the Court of Appeal in disposing of two lottery scamming cases expressed the need for a starting point in the sentences of those who plead guilty.

Under the Law Reform (Fraudulent Transactions) Special Provisions Act which came into effect in 2013, a judge can impose a fine or imprisonment not exceeding 15 years or both fine and imprisonment on a person who is convicted of lottery scamming.

Recently, the Court of Appeal, in reducing the sentences of two persons who had pleaded guilty in separate cases, outlined some of the generally accepted principles of sentencing with a view to give guidance to judges confronted with this issue.

"It is a common pace doctrine of modern sentencing ... that in choosing the appropriate sentencing option in each case, the sentencing judge must always have in mind the four classified principles of sentencing. These are retribution, deterrence, prevention and rehabilitation," the court said in giving decisions in both cases.

In one case, 33-year-old vendor Meisha Clement had pleaded guilty in the Trelawny Circuit Court to possession of access devices and was sentenced in March 2015 to eight years' imprisonment.

She was found in possession of several debit and credit cards belonging to residents overseas.

Clement appealed on the ground that the sentence was manifestly excessive and it was reduced to five years' imprisonment.

The president of the Court of Appeal, Justice Dennis Morrison, Justice Marva McDonald Bishop and Justice Paulette Williams (acting) held that the sentencing judge must apply the principles, any one of them or a combination of them, depending on the circumstances of the particular case.

And ultimately taking these well-established principles into consideration, the objective of the sentencing judge must be to impose a sentence to fit the offender and at the same time fit the crime.


The circumstances


"The effect of Section 3 (1) of the Criminal Justice Reform Act is, therefore, that the sentencing court must, in those cases in which it is at liberty to impose a non-custodial sentence, consider all the circumstances in order to determine whether the seriousness of the offence nevertheless warrants the imposition of a custodial sentence, thus imprisonment is a last resort, rather than a first resort."

The Appeal Court said further that, "Having decided that a sentence of imprisonment is appropriate in a particular case, the sentencing judge's first task is to make a determination, as an initial step, of the length of sentence, as a starting point, and then go on to consider any other factors that will influence the sentence, whether in mitigation or otherwise.

"It will, in our view, generally be wrong in principle to use the statutory maximum as the starting point in the search for the appropriate sentence, " the court ruled.

The other case was that of 34-year-old Kurt Taylor, who was sentenced in December 2014 to five years' imprisonment after he pleaded guilty in the St Elizabeth Circuit Court.

Taylor's lawyer, Yushaine Morgan, had at the sentencing hearing referred to two cases similar to Taylor's in which a fine of $300,000 was imposed in September 2014 and a probation order made in the other case.

In Taylor's case, the court, comprising Justice Hilary Phillips, Justice Almarie Sinclair Haynes and Justice Frank Williams, pointed out that the judge had used the maximum sentence of 15 years' imprisonment as the starting point in Taylor's case and in the sentencing process made two reductions before sentencing him to five years' imprisonment.

The court made it abundantly clear in Taylor's case that 15 years ought not to be the starting point for persons who plead guilty.

Taylor had no previous conviction and was in possession of one sheet of paper known as the 'lead sheet' with the telephone numbers and addresses of persons in the United States of America.

The court queried if the starting point for Taylor with one lead sheet was 15 years, then what would be the starting point of a person with a previous conviction or convictions who was found in possession of 100 lead sheets.

Taylor's immediate release was ordered by the court on compassionate grounds because he is wheelchair bound.

Director of Public Prosecutions Paula Llewellyn did not oppose Taylor's early release. The court reduced Taylor's sentence from five years to three years and gave him a two-year suspended sentence.