THE Jamaican Bar Association (JamBar) has sided with the United Nations Children’s Fund (UNICEF) in its recommendation that a minimum mandatory sentence for murder should not be imposed on child offenders.

Under the Child Care and Protection (Amendment) Act, 2023, now being reviewed by a parliamentary joint select committee, it is being proposed that children convicted of murder serve a mandatory sentence of 20 years in prison before becoming eligible for parole.

President of the association Alexander Williams, in his submission to the committee on Tuesday following UNICEF’s presentation which raised objection to its imposition, argued that a mandatory minimum sentence should not be implemented at all for children, but if it is, it should be limited to repeat offenders.

He said appropriate sentencing should be left to the discretion of the trial judge and not determined by Parliament, and should be considered on a case-by-case basis as was suggested by Government committee member Dr Saphire Longmore.

“There needs to be an opportunity given at a trial stage, that is the judge, to deal with the circumstances of a particular case in coming up with a sentence. And the fact is, if we come to that position then it’s actually antithetical to a mandatory minimum. The same way in which trial judges have a discretion to impose a minimum, a trial judge has the discretion to impose a maximum within the sentencing guidelines,” he said.

He noted that various factors are considered when the trial judge needs to make a decision on an appropriate sentence including social inquiry report, victim impact assessments and so on which are weighed against aggravating circumstances as well as litigating circumstances, so it would not be practical to impose mandatory minimums across the board for children.

“These sentences are set by Parliament and remove discretion from judges, forcing them to impose a specific minimum sentence regardless of the circumstances of the case or the individual offender’s background. The association maintained that judicial discretion is an essential feature of a fair justice system. It ensures individual justice for each case and each circumstance. Mandatory minimum sentences passed by Parliament have no regard for judicial discretion,” he said.

Williams said that the objectives of sentencing a person are denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgement of and reparations for the harm they have done.

He also cautioned that “we have to be very, very cautious when we’re getting to the area of mandatory minimum sentences for children whose mental growth may not be up to the particular standard to accept the nature and consequences of their acts, especially where they’re operating with social and psychological deficits,” he said.

Dr Longmore also suggested treading carefully when dealing with children, pointing out that a child is entitled, under Jamaica’s constitution, to care and protection.

“Let us not err on the side where we are causing more damage where there should be remedy. We have a tendency to see discipline as being punitive. Discipline is supposed to be positive. Discipline is supposed to be enabling and enhancing the better development, but it requires some amount of restriction for that development,” she said.

“I think that we should be tailoring our dispensation for children versus adults in very specific ways and for children… it should be case by case. We cannot have a carte blanche approach to our children who develop in different ways,” she said.

Other committee members echoed similar comments. Opposition Senator Sophia Fraser Binns noted that she is also not in favour of imposing minimum mandatory sentences for children and agreed that judges should be allowed to use their discretion in sentencing “because each case will turn on its own facts and we have to give consideration to the particular facts unearthed in the trial”.

Opposition committee member Senator Donna Scott Mottley said she is not in support of mandatory sentencing and argued that “we cannot legislate for those that really offend the spirit in the sense that we can’t impose a mandatory sentencing for all murders because 10 of them we know they are monsters… and I think that that is where my caution arises”.

The committee was also appointed to review and report on the related Criminal Justice (Administration) (Amendment) Act, 2023; and the Offences Against the Person (Amendment) Act, 2023.