The sentence imposed on Machel Montano and Kernal Roberts of a fine as opposed to sending them to jail has raised questions as to whether the sentence was just.The following guidance as to the factors taken into consideration when sentencing an offender offers some clarification to the public as to how the court came to this sentence.
1. The solitary feature the 'art' of sentencing called for from a sentencing court is that of sound judicial discretion.
2. The duty of the court, in relation to each crime and to each criminal, is to decide whether to be lenient or severe. The length of the sentence must not exceed what is appropriate to the criminality of the offence and the offender's past record and general character. A court does not sentence an offender in an arbitrary manner, nor sentence him based on personal feelings.
3. Sentencing performs a powerful symbolic function–it is an authoritative expression by the courts of its response to the offence.
4. A sentence must be such that public confidence in the administration of justice is preserved. A judicial officer has discretion in passing sentences and must be guided particularly by five objects/principles which comprise the aims of punishment:
�2 Retribution/Denunciation
�2 Deterrence vis-a-vis potential offenders
�2 Deterrence vis-a-vis particular offender
�2 Preventative
�2 Rehabilitation vis-a-vis the offender himself
5. Gone are the Old Testament days of "an eye for eye and tooth for tooth"–the Retribution/Denunciation principle justifies the imposition of a sentence based on society's values. The process of subjecting the offenders to trial, conviction and moral blame would, in less serious cases, suffice to focus the attention of the offenders and the community on the wrongness of their behaviour, making it unnecessary to send the offender to jail.
6. Deterrence vis-a-vis potential offenders aims to deter offenders from committing a particular kind of offence while deterrence vis-a-vis particular offender aims to deter the offender himself from re-offending.
7. The preventative principle is such that: "...there are some offenders for whom neither deterrence nor rehabilitation works. They will go on committing crimes as long as they are able to do so. In those cases the only protection which the public has it that such persons should be locked-up for a long period."
8. The rehabilitative principle seeks to rehabilitate the offender based on his needs through a range of sentences and treatment programmes.
9. The courts recognise that "A sentence of the court ought not to destroy the confidence of the public law...The courts cannot be mechanical instruments applying the law of Medes and Persians–of so many years, or so much of a fine."
10. The courts are always alive to the nature and circumstances of the offence, the history and characteristics of the offender, the type of sentence that may be imposed, and any aggravating and/or mitigating factors.
11. The Sentencing Handbook has been helpful in this regard, making sentencing a more consistent process, and improving public confidence by limiting the appearance of arbitrariness.
12. For instance, a person convicted of assault occasioning actual bodily harm contrary to section 30 of the Offences Against the Person Act, is liable to five years imprisonment. The court compares and contrasts the sentence and features of other sentences in determining the appropriate sentence.
13. The Handbook illustrates four cases in which the Court of Appeal imposed non-custodial sentences even though the appellants were convicted of more serious offences than assault occasioning actual bodily harm. Based on the hierarchy of the Judiciary, a Magistrate for instance must abide by judgments of the Court of Appeal.
14. It has been said that "The court is not a representative body; its judgements are not supposed to represent the popular will of the majority, plain and simple. It is rather the custodian of tradition, the upholder of truth."
15. Further, that "the courts do not have to reflect public opinion. On the other hand courts must not disregard it. Perhaps the main duty of the court is to lead public opinion."
16. The court must not impose a sentence to reflect public opinion or one that appears to be appeasing any part of society. Public perception is that persons of great status are above the law and should be penalised according to their high profile status.
17. While this may be applicable where such person has a higher duty of care, for instance a policeman or priest, and abuses his position for profit or to commit an offence, this may be an aggravating factor. However this perception should be absent from the mind of a sentencing court.
18. In cases of entertainers or actors, although they may be role models, they do not in law owe a higher duty than the common man to uphold the law. While society may feel that they owe a higher moral duty, especially on younger minds, this ought not play a part in the courts' mind.
19. Regardless of social status, financial circumstances or public outcry, they are deserving of the same blind justice entitled by the common man.
20. The court must treat each case on its individual merits, and not allow itself to be a rubber stamp; or to pander to the popular cries because it is of least resistance.
21. A non-custodial sentence may be seen as soft, or as the offender "got off." However, if the court considered the offender's record, the contribution to society, the sentencing principles, aggravating and mitigating factors and the Sentencing Handbook, the court is faultless.
22. While public opinion is that an offender be sent to prison, the main duty of the court is to lead public opinion. In some cases a fine or community service is just and maintains public confidence. The sentence must be accurately covered by the press and not sensationalised for the judicial system to maintain its function in civilised society as "the custodian of tradition, the upholder of truth."
Daniel Khan