CurrentAffairs
Statement onTariffs and Guidlines for Sentencing
Address by Chief JusticeAnthony Smellie at the opening of the Grand Court
At the opening of the Grand Court in May1998, former Chief Justice Harre announced the Sentencing Tariffsand Guidelines for certain prevalent offences. These includeddrug trafficking, unlawful use and possession of firearms, motorvehicular and sexual offences as well as certain other offencesagainst the person. That announcement in 1998 followed consultationand consensus at all levels of the local judiciary.
Recently, there have been expressions ofconcern arising from the perception, particularly with regardto drug offences, that the tariffs and guidelines are not beingstrictly followed or applied.
Consequently, the judges of the Court ofAppeal, the Grand Court and the Magistrates have recently metto consider and to once again agree together what the tariffsand guidelines for sentencing for those categories of offencesshould be. The principles which we are about to reaffirm relateto offences in respect of which an immediate term of imprisonmentwill be the norm and where an accused has unsuccessfully pleadednot guilty. A guilty plea, especially an early one, is alwaysviewed favourably and will usually result in a discount. Otherconsiderations may result in further discounts and of traditionalimportance here is full co-operation and assistance given to thePolice and even moreso where that leads to the detection or preventionof other serious offences.
By way of further introduction, we notethat the tariffs and guidelines now to be announced will largelybe in affirmation of those announced in 1998 and it should alwaysbe remembered that a tariff means a sentence to be applied ina typical case. Mitigating factors will reduce it and aggravatingfactors will increase it.
As regards ASSAULT CAUSING GBH under Section201 of the Penal Code:
While the legislation has laid down a maximumpenalty of life imprisonment for this offence, the circumstancesunder which it may be committed vary infinitely and the sentenceshanded down by this Court since 1998, have necessarily rangedfrom terms of probation to 12 years immediate imprisonment.
We are obliged to note that this provisionof the Penal Code needs to be modernized as it could not be themodern legislative intent to regard the very wide range of circumstancesunder which offences of grievous bodily harm might be committedas being all amenable to the maximum penalty of life imprisonment.
We recommend that the Code be amended tocreate two categories of offence. The first being the offenceof causing grievous bodily harm with intent, carrying the maximumpenalty now prescribed. The other, unlawfully causing grievousbodily simpliciter and not being an offence of specific intentto do grievous bodily harm, carrying a maximum penalty of 5 years.This recommendation is in keeping with the state of the law inthe United Kingdom, Jamaica and other Commonwealth jurisdictions.
As regards FIREARM OFFENCES contrary tothe Firearms Law:
The legislation is quite clear that thepossession or use of any unlicensed lethal barrel firearm is anextremely serious offence. Under the Firearms Law the maximumpenalty for possession of an unlicensed firearm is 20 years anda fine of CI$100,000. The tariff for that offence unless thereare very mitigating circumstances will be 10 years. If on theother hand aggravating circumstances exist, for instance, theuse of the firearm for the commission of a serious offence, thetariff will be in keeping with decided cases and will be significantlyhigher.
As regards SEXUAL OFFENCES:
*For RAPE, which has become alarmingly prevalent,an offender can expect a tariff of between 10 and 12 years imprisonment.
*For DEFILEMENT OF A GIRL UNDER 12 YEARSa similar tariff of between 10 and 12 years will be applied.
*If the victim is over 12 but under 16 yearsof age, the Law prescribes a maximum penalty of 7 years. The Courtsregard all sexual offences as very serious and all too prevalent.While the actual age of the girl within each category and thecircumstances of the offence will always be important considerations,the basic tariff here will be 5 years where the offender had noreasonable cause to believe or did not in fact believe that thegirl was above the age of 16 years.
As regards DRUG OFFENCES under the Misuseof Drugs Law and in particular those related to the widespreadproblem with cocaine abuse in these Islands, the following tariffsare now confirmed:
For simple possession, the Court will alwaysdo what it properly can to steer an offender along the path ofrehabilitation using such resources as are available. Over thepast year, 6 charges of simple possession were brought in conjunctionwith other charges involving possession with intent to supplyor importation. In those circumstances, and if the latter chargesare proved, the Court has typically allowed the sentence to reflectthe more serious offence and might properly see no need to imposea separate penalty for the possession offence.
Where the offence is possession simpliciterwith no related element of dealing or importation but an apparentaddiction, the new approach to sentence recognises that the emphasisshould be upon rehabilitation. This is the category of offencefor which the Drug Court regime will be primarily established.The intention there will be to ensure compliance with counselling,physical and psychological therapy and random drug testing. Thelength of the regime will be determined by the needs of the addict.
Nevertheless, there will be offenders whoare in possession, not linked to trafficking but who are not yetshown to be addicted and in respect of whom a sentence of deterrencemight be appropriate. In such cases a tariff for amounts rangingfrom 1 gram to 10 grams has for many years been and will continueto be 9 to 12 months imprisonment and a fine of up to CI$1,000.00for a first offence. For a second or subsequent offence 1 year and a fine of up to CI$2000.00.
At the other end of the scale of gravity,that is to say, trafficking in hard drugs in any quantity as definedin the Misuse of Drugs Law, the maximum penalty prescribed foroffences involving 2 ounces or more is 20 years for the firstoffence and 30 years for a second or subsequent offence with anunlimited fine in each case. That of course is the maximum the sentence for the worse possible offence by the worse possibleoffender.
The tariff for a first such offence, involvingless than 2 ounces of cocaine or less than 4 grams of cocainebase without mitigating circumstances, will be 8 years.
For offences involving 2 ounces or moreor 4 grams or more of cocaine base without mitigating circumstancesthe tariff will be 10 to 12 years. 15 years or more will be imposedwhere such an offence involves substantial importation or dealingin anyway either in powder or crack cocaine. We would define 'substantialimportation or dealing' as any transaction involving several ouncesor kilo quantities.
The Courts recognise that many of the peoplecaught are couriers or intermediaries and that the worse offendersin the chain of distribution often remain concealed. Thereforethere will be a substantial discount on sentence for those offenderswho are prepared to co-operate with the police in their enquiries.
As regards OFFENCES OF DISHONESTY:
*For ROBBERY, a first offence involvingthe use of a firearm could attract a tariff of 14 years.
Otherwise for a first offence of an aggravatednature, 8 years will be imposed.
For aggravated offences of BURGLARY, a firstoffence will attract a tariff of 4-6 years.
For BURGLARY, without aggravating circumstances,a second or subsequent offence will attract a tariff of 3-4 years.
It should be emphasised however that weconsider home invasions whether by night or by day very seriousoffences and any such offence is likely to be discouraged by appropriateprison sentences.
For offences of THEFT or related offences,depending on the value of the property stolen and any other aggravatingfactors, particularly where there is a breach of trust in thecontext of a relationship of employment, an immediate term ofimprisonment ranging from 1 to 4 years for a first offence, andan order for repayment, will likely be imposed. The tariff couldbe higher still depending on the seriousness of the offence.
For HANDLING STOLEN GOODS, the tariff willbe 2 to 3 years immediate imprisonment for serious offences inthis category and the tariff may be higher if there are previousconvictions relating to dishonesty.
TRAFFIC OFFENCES:
We are happy to report that the number of traffic accidents wheredeath has occurred has been greatly reduced. There was one suchaccident where alcohol was involved in 2001. As announced in 1998,the tariff will be 5 years imprisonment, for offences of causingdeath by dangerous driving involving alcohol, speed or other aggravatingfactors. In the absence of such aggravating circumstances, thetariff will be 3 years.
Offences of Driving Whilst Intoxicated arein and of themselves serious offences and will continue to attractthe kinds of tariffs which the Summary Court has been handingdown. These will typically involve immediate periods of disqualificationfor at least a year and significant fines. Such offenders whereappropriate may also be required to undergo therapy and counsellingfor alcohol abuse. It must always be remembered that the Law alsoprescribes a possible penalty of immediate imprisonment.
PRINCIPLES OF SENTENCING:
It is the duty of this Court to identifyand affirm the principles and guidelines which are to be appliedin the exercise of discretion upon the imposition of sentence.
We now reaffirm them for the guidance andunderstanding of the public as so often we discern understandablehesitation amongst the public in the acceptance of sentences whichare imposed.
The exercise of sentencing is never an easyone. There inevitably exists a tension between the public interestin deterring the offender and others who might offend and theimportant objective of tailoring the sentence to ensure that theoffender is given a proper opportunity for rehabilitation.
The primary aims of sentencing are rehabilitation,deterrence, incapacitation and restitution, but not necessarilyin that order.
The Court is always faced with a dilemmawhether to impose upon any defendant a sentence in the name ofgeneral deterrence, to reflect the offender's culpability or toseek to influence his future behaviour by subjecting him to anappropriate measure of supervision, treatment or preventive confinement.Sometimes a combination of these objectives must find expressionin the same sentence. Often, this is not possible. A primarilydeterrent approach is not likely to assist the offender towardsconformity with the law in the future and may positively damagesuch future prospects as already exist. Measures designed to assistthe offender to regulate his behaviour may appear to diminishthe gravity of the offence and weaken the deterrent effect ofthe law on potential offenders.
Faced with this conflict the Court mustalways decide which objective should prevail in the particularcase depending on the particular circumstances. With this in mindthe Court must always consider carefully those factors which willpush a sentence either above or below the specified tariff We refer of course to mitigating or aggravating circumstances.
The object of setting and announcing tariffsfor sentencing is not to set measures which are cast in stonebut to advise everyone on what the guidelines and likely consequenceswill be. The object is also importantly to warn would-be offendersof the disastrous consequences of committing serious offencesin the hope that they will be deterred from doing so.
The Chief Justice will shortly be issuinga Practice Direction for publication in the Cayman Islands LawReports which will express the foregoing principles in a moreappropriate form for those purposes.