Alternative Sentencing Options Part 1

Two weeks ago another High Court Judge lamented the lack of sentencing alternatives when placing a 71-year-old truck driver on a three year bond for motor manslaughter. The driver had been driving a truck that was patently defective in numerous ways down busy St James Street at a time when traffic was heavy.  The truck, with its failed brakes, went careening down the steep incline and went on and over several vehicles leaving three persons dead and several others injured, not to mention causing damage to property in the millions.  The truck had also been driven without the required permit to take such a vehicle into a town and without the police escort that would have been required. Following his guilty conviction, evidence was led from medical personnel, from within the state service, as to the inadequacy of the services available in the prisons to treat the type of medical condition suffered by the convicted man such that a custodial sentence imposed on him was likely to amount to a death sentence.

Without doubt the learned Judge agonised over the decision, knowing there would be no satisfaction from the victims left and the families of those who had died, about the sentence that would eventually be imposed. Some years ago there was a case of an elderly man who had shot a relative to death more or less in cold blood.  Since the shooting the man was remanded in custody on the murder charge. In the five years or so it took for the case to come to trial, everything possible medically that could go wrong with the man had happened.  He went blind, lost limbs through acute diabetes and he was incontinent. Keeping him within the prison system had become more a burden to the authorities that letting him go. Even bringing him to court for his trial was a major operation. He was brought in an ambulance, stretchered in to court and had to be lifted out and placed to lie down.  Through legal gymnastics the State accepted a plea of manslaughter and he was placed on a bond of good behaviour and released to the custody of his family who reluctantly assumed the burden that the State was not equipped to undertake of caring for him.

I recall another case where an elderly man had had too much alcohol and with a cutlass being readily available, and he being a skilled cane cutter, he wielded it unto the body of a relative. As he sobered up he was mortified by what he had done, remorseful and willing to take responsibility for what he had done.  When the matter came for sentence he pleaded guilty, could offer no compensation through extreme poverty and the court was faced with the dilemma of considering what to do with a man who had committed a terribly violent act but who, by the time of trial, had expressed remorse and had mended fences with the relative. In these cases there is no formal role in the sentencing process for any input from victims of crime.  The prosecutor’s role when it comes to sentencing is invariably to indicate whether the convicted person has any convictions on record. In some cases the Judge or Magistrate might ask the prosecutor to indicate the maximum penalty or to bring to his or her attention any previous cases in which a similar factual pattern arose. 

That in itself is difficult as there is no definitive reporting on sentencing and really no two cases are identically alike in terms of mitigating factors. But that is the extent of the input generally from a prosecutor.  There is no legal procedure whereby victims might express to the court how the crime has affected them or to hear from psychologists on this. Judges must do the best they can, supposing the effects. We might therefore consider the introduction of victim impact statements as permitted in other countries. Every day dozens of young people appear in the Magistrate’s Court for possession of small quantities of drugs commonly marijuana and cocaine. For first offences they are likely to get a fine or depending on the ability of an attorney to marshal sufficient mitigating circumstances even a reprimand and discharge or a bond. The court has no discernible power to send that person to enroll in a rehabilitation programme.

A creative Magistrate may not impose a sentence immediately but might suggest rehabilitation and adjourn the cases from time to time to monitor the attendance of the offender and to get progress reports and then consider what would be an appropriate course to take given the limited sentencing options available. That Magistrate would not, however, look too good statistically since at the end of each month his or her part heard cases record would show a high number of such cases compared to another Magistrate who, once a finding is made, proceeds immediately to sentence. In any event once the offender returns a second or third time, a custodial sentence would invariably follow. What that offender needs, however, is not necessarily a jail term but help to get out of the addiction and recovery to more positive pursuits in life including getting a job and repairing his family life.

A fine in many cases would also not be the best thing. An addict invariably has no money himself.  His family may also have no money and the ultimate effect of having no money with a fine being imposed is that the offender serves the alternative prison sentence. We know more now that the existing conditions in prison, despite the work of some dedicated professionals within the service to do the best with what they have, do not generally encourage rehabilitation. It more likely, in most persons, promotes anger and resentment. These are just some of the problems encountered in sentencing which we will explore in the next installment and explore some solutions.

Ronnie Boodoosingh, Attorney-at-Law, The Law Association

CORRECTION
The Law Association wishes to apologise to members of the public for an error which appeared in an article entitled “Why Make a Will” published in the Newsday on Monday July 5th 2004 at page 10. The error features in the first sentence of the last paragraph and should read instead as follows:
 “If you wish to make an application for probate of a Will” and NOT “If you wish to prepare a Will.”

The Editorial Committee of “The Legal Burden” welcomes the feedback of the public on these articles.