Several legislative frameworks provide guidance and constraints within which judges must operate.
April 8, 2025
Judges and sentencing
Dear Editor,
The recent news of an individual found guilty of cocaine-related offences yet facing no jail time has stirred considerable public outcry. Many have expressed frustration, perceiving this as evidence that the justice system favours a select few and that judges are either overly lenient or even corrupt.
However, the truth is that judges have far less discretion than many outside the judicial system might believe. Several legislative frameworks provide guidance and constraints within which judges operate. Offences are typically defined by specific laws. For instance, the offence of unlawful wounding is defined under the Offences Against The Person Act, which outlines both the offence and the corresponding penalties.
There are, however, instances when an offence may either contravene common law or be defined in an Act without a clearly prescribed penalty. In such cases the sentencing judge is guided by various pieces of legislation depending on the specific court involved. One such piece of legislation is the Criminal Justice (Reform) Act, which, under section 3, establishes that imprisonment should be considered a measure of last resort. This section also mandates the submission of a social enquiry report (SER) before a sentence is passed. The report aims to provide the court with critical information about the accused, including his/her background, education, parenting history, prior convictions, social activities, and community opinions. This allows the judge to assess the individual’s potential for rehabilitation and determine whether he/she is a habitual offender or capable of reform.
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The purpose of sentencing is generally understood to be rehabilitation, deterrence, punishment, and prevention. As such, a judge is required to carefully evaluate the specifics of each case to determine the most appropriate sentence.
Another constraint on judges’ sentencing discretion is the range of penalties specified within the relevant sections of the law under which the accused is charged. Some sections of Acts do not prescribe a specific penalty; instead, they provide a general penalty for any violation of that section. In such cases, fines are often considered or the common law may apply — both of which sometimes do not result in the custodial sentences that the public might expect.
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Additionally, sentencing guidelines provide for the imposition of fines in certain situations. In all instances the severity of the offence is juxtaposed with the other information detailed above. These guidelines help ensure that the punishment aligns with the seriousness of the crime.
While it is true that there may be a need to review certain laws in light of current crime statistics, it is essential to remember that judges and attorneys are operating within the legal framework. The decisions they make regarding sentencing and mitigation are based on the law, not on personal preference or bias.
Patrice Riley
attorney-at-law
patricerileylaw@gmail.com
