New sentencing guidelines

The OECS Supreme Court is seeking to make major changes to sentencing guidelines in the jurisdiction for the purpose of achieving uniformity in the approach to constructing criminal penalties.

The Chief Justice has introduced the new sentencing guidelines, which differ from those used in the British system, and has invited the public and other stakeholders to participate in an online consultation via their website.

The new rules for sentencing are aimed at achieving uniformity in sentencing among judges and magistrates in the OECS and in the case of serious drug possession, specifically designed to change the way sentences are determined and imposed.

The Justices have said the issue of sentencing is an area of great public interest and comment, sometimes uninformed.

The changes are aimed at achieving a uniformity of approach to sentencing and not uniformity of sentencing across the jurisdictions of the OECS.

The new guidelines were developed by a Sentencing Advisory Committee, appointed by Chief Justice, Dame Janice M Pereira.

Its task is to draft guidelines which will be brought into effect following public consultation.

According to proposed guidelines, the Eastern Caribbean Supreme Court, as well as judges, masters and magistrates are required to give reasons for the sentences which they impose and the new guidelines are to assist them in the process of considering and explaining sentences.

The SAC is comprised of the Chief Justice as President, under the joint-chairmanship of Her Ladyship Madam Justice Gertel Thom, Justice of Appeal, and His Lordship Mr Justice Iain Morley QC, High Court Judge.

Under the new system, there will be specific steps required to be taken when constructing a sentence.

ECSC says, “it is intended that the guidelines must be applied unless to do so would be contrary to the interests of justice.

“The reasoning process for any sentence must be given as well as for any decision not to follow a guideline. It is not intended that the guidelines will replace the discretion of the individual judge, master or magistrate in determining the appropriate sentence within the applicable range”, the ESCE said.

In the case of some offences, the application of the guidelines may alter sentencing practice. In the case of serious drug offences, it is intended to do so, it added.

According to the ECSC public statement on this issue, “the intent of the Chief Justice is that structured and well-reasoned sentencing remarks will become normal practice and would encourage their publication.

The documents said that “these remarks will build up a bank of authority to assist courts, students of law and the public to better understand the principles and practice of sentencing law.”

The Sentencing Advisory Committee has proposed a scheme of guidelines which start by assessing the seriousness of the offense by consideration of the aggravating and mitigating factors and then moving in to consider the offender by reference to person factors which aggravate or mitigate his position.

According to the SAC, this follows the Aguillera model from Trinidad and Tobago, rather than the England and Wales model, in which culpability is assessed first and then followed by harm factors.

Addressing a sitting of the Magistrate’s Court last week, attorney-at-law Anslem Clouden expressed his opposition to some of the new guidelines.

He offered an instance where, under the new sentencing rules, Judges and Magistrates would have to impose the same mandatory jail sentence on defendants found guilty of marijuana possession over 300 pounds, whether they are thirty or sixty years old.

Some of the crimes covered by the new guidelines are rape and other sex offenses, marijuana and cocaine possession specifically, robbery and stealing.

Chief Magistrate Tamara Gill has also encouraged the members of the local Bar to participate in the ongoing consultation process.

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