SENTENCING

Sentencing in changing societies

Sentences have always been prescribed in different forms and degrees, dependent on the nature of the crime. They
have evolved over the years to reflect changes in the norms and values of society. For example, legislation may be
enacted to decriminalize an activity (such as homosexuality, in England, after the Wolfenden Report of 1957) or it
may create an offence, such as in economic and anti-terrorist issues, in keeping with current trends.

Changes can be brought about by popular agitation, such as is the case being urged concerning the use of marijuana
(ganga) for medicinal and religious purposes.

Changes can also be prevented by popular agitation, such as is demonstrated, certainly by many of our own people
on the subject of capital punishment.

Aims of Sentencing

In the past, and still so in some cultures, gruesome forms of punishment were imposed for crimes considered
heinous such as murder, rape and theft. These crimes are very serious ones and our system of justice seeks to
impose types of punishment which are consistent with the nature of the crime.

The theories of sentencing affect the way in which the Courts approach the issue.
These theories are as given below.

(i) Retributive or Denunciatory theory

This theory posits that the offender must be “done by as he did”. It is akin to the Mosaic Law: “An eye for
and eye and a tooth for a tooth”. It is, therefore, based on proportionality and, though harsh, is not unfair as
we understand unfairness, except on the basis that this type of sentencing is meted out in respect of the
particular offence and dies not take the offender’s history into account. In respect, it is not regarded as the
most efficient type of punishment.

(ii) The General Deterrence Theory

This theory is a well-known one which has received judicial support as, for example, in the “Great
Train Robbery” case of 1964 where the Court expressed its position on the sentences imposed against
bandits, as follows:-

“Severely deterrent sentences were necessary …to demonstrate to others tempted to follow them into
lawlessness on this vast scale that, if they were brought to trial and convicted, commensurate punishment
will follow”.

Compare Lord Denning’s dictum in the London Borough of Southwark case, where, in frowning on too
much latitude being extended to the use of necessity “as a defence where he said, “necessity would open a
 door which no man could shut”. From this, you will appreciate how public policy considerations influence
sentencing, especially along the lines of the general deterrence theory.

(iii) The specific or individual deterrence theory

Here, the emphasis is on the individual defender. The aim of this theory is to seek to deter the particular
offender from committing another crime. In some respects, it is related to the rehabilitation theory in that
such elements as monitoring or the imposition of a suspended sentence are possible approaches. Its
treatment of the offender as an individual makes it a useful way in which the offender’s own willingness to
work with law enforcement can assist the process itself.

(iv) The preventive theory

This theory posits that the offender should be imprisoned for long periods in order to prevent him or her
from committing further crimes. This approach is inconsistent with proportionality and could be unfairly
implemented. It also does not place sufficient emphasis on the individual whose needs may require him to
be given medical treatment as against incarceration. It is, therefore, not a frequently used approach
nowadays.

(v) The rehabilitation Theory

This is an approach which Courts in our jurisdictions, as well as in Europe and North America, are
using at an increasing rate. It includes among its advantages:-

(a) Giving offenders a second chance

(b) Affording offenders social and educational opportunities to enable them to be absorbed into society
after serving time or, where time was not served, for them to give service to the community while,
at the same time, having time to reconcile themselves to the community which has been violated.

(c) Easing the burden on the prison population by reducing numbers. It may conflict with the general
and specific deterrence theories.
Parole is an important part of this theory. In the United State the issue is a provocative one with
respect to sex offenders. You may wish to read up some more on this, with particular reference to
“Megan’s Law” which arose from the abduction , sexual abuse and murder of a child in the state of
New Jersey.

Factors which influence sentencing

In addition to the offender’s background, previous records, if any, and the nature of the offence, the Courts also
take into account a number of other factors. These include:

(i) Seriousness and type of offence

(ii) Was the offender in a position of trust?
(iii) Does the offender have any previous conviction?
 (iv) Was the offender on bail, parole or was he given a suspended sentence for which time has not
expired?
(v) What are the offender’s family and social circumstances?
(vi) What is the offender’s health status?

What is the offender’s age? See, for example, The principle of doli incapax which states that
children under 10 years of age are incapable of committing a crime. Note also the applicable law
relative to juvenile offenders in your country, and the age of consent which would have an effect on
the accused’s charge in sexual offences).

(vii) What is the offender’s financial situation? This is an issue which sometimes arises in discussions
on the sentencing of wealthier members of society, as against poorer persons, in relation to the
ability to pay for experienced counsel as versus legal aid which is not always served by more
experienced counsel.
The financial question is also important in relation to an offender’s ability to pay fines which, when
an offender cannot pay, his or her option is incarceration. The issue is also important in relation to
an offender’s admission to bail.

(viii) Whether a non-custodial or custodial sentence is appropriate, having regard to the nature of the
crime.

Types of sentences

These are usually prescribed by statute or a penal code:

(i) Imprisonment
(ii) A suspended sentence. Here the offender has been found guilty and the Judge sentences him for a
period, but the offender will not be incarcerated, It is, therefore, described as a non-custodial
sentence. If the offender commits another offence for which he or she is found guilty during the
period of the suspended service, a usual term of the sentence is that the offender serves the term
which was suspended, plus the term of the new conviction with both terms running consecutively.

(iii) Fines. These are usually within the range of the maximum provided by statute.
(iv) Community service orders. These are being made increasingly and are useful for more minor
offences. They may be combined with another sentence such as a fine.

(v) Probation orders. This order, like the community service order usually involves the social services
which would undertake an investigation, and submit a report to the Court.

(vi) Absolute or conditional discharge

(vii) Binding over to keep the peace.
(viii) Death.
(ix)
You should pay close attention to:

a) The treatment of young offenders

b) Reference by the Courts of parties to mediation especially in domestic disputes. This is an integral
part of the justice system in some countries. Check on the situation in your own country.

Capital Punishment

This is a highly emotive issue to many of our people. There’s an instructive comment from a member of the public
on a radio vox pop “some years ago on the question of capital punishment and whether it should be abolished. She
said, quite emphatically; “Yes hang dem, Hang dem ‘til dem dead!”.

For your further reading on the subject read the following cases:-

Pratt and Morgan v Attorney General of Jamaica

R v Thomas

The latter case is on the subject of mandatory death penalty and involves some very interesting public law issues.