by Curlan Campbell, NOW Grenada
- Guidelines not intended to replace discretion in determining appropriate sentence
- Implementation of new sentencing guidelines 3 June
Attorney-at-Law Anselm Clouden, known for his nonconformist ideas regarding sentencing and punishment, has taken some issue with the newly proposed sentencing guidelines for judges and magistrates.
“My concern as a criminal defence attorney for well over 30 years is that the sentencer is denied the breath of discretionary powers that he once had. These new guidelines limit or curtails the sentencer’s ability to invoke his discretion so as to give a lighter sentence or a non-custodial sentence.”
The Eastern Caribbean Supreme Court (ECSC) has indicated that 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.”
Another issue that arises, Clouden said is that the new guidelines do not take into account the intricacies of criminal practice.
He pointed specifically to an issue surrounding the guilty plea, indicating that under the new guidelines, offenders will be disentitled to the full one-third discount for sentence.
Clouden was referring to the sentencing principle that takes place which provides a defendant to secure a one-third reduction in the sentence if a guilty plea is made when the defendant is asked to tender a plea to the charge.
“When calculated, you are entitled to a one-third discount in a sentence if the plea is given at the first reasonable opportunity, now we have been articulating that if there is an admission in the caution statement of guilt, then that’s an opportunity that ought to be considered as the first opportunity and therefore makes the offender eligible for the full one-third discount in his sentence but they have now decided to say that it depends on when the first opportunity is considered but fraught with inherent contradictions.”
Clouden has also taken issues with what he perceived as the punitive approach to sentencing under the new guidelines.
“Every offender must be treated in a manner that is most appropriate to him. Not every rapist is the same or the circumstances of rape, so what must be done, must be done in his best interest with the thrust of rehabilitation and reform. For instance, rather than making it mandatory for someone to go to prison, why not have halfway houses as you have in Canada… rather than punitive but the guidelines seem to take the latter,” Clouden said.
Despite the concerns expressed by Clouden, Grenada and the other jurisdiction of the Eastern Caribbean Supreme Court (ECSC) are expected to adopt these new sentencing guidelines. The announcement of the coming of these new guidelines was first made by the Court’s Chief Justice Dame Janice M Pereira during her address to mark the opening of the 2018-2019 Law year.
According to the Eastern Caribbean Supreme Court website, the new sentencing guidelines are intended to achieve consistency of approach, not uniformity of sentencing.
A Sentencing Advisory Committee was set up by Dame Janice, to draft guidelines that will at the appropriate time be implemented on dates to be announced following public consultations that are presently ongoing across the OECS with legal practitioners and other stakeholders.
These guidelines drafted will require the Eastern Caribbean Supreme Court, as well as judges and magistrates to provide a rationale for sentences they impose and the new guidelines are to assist them in that process.
Other members of the Sentencing Advisory Committee are Her Ladyship Madam Justice Gertel Thom, Justice of Appeal, and His Lordship Justice Iain Morley QC, High Court Judge.
The ECSC online release stated that “In the case of some offences, the application of the guidelines may alter sentencing practice”. It also went on to say that “In the case of serious drug offences, it is intended to do so. The Chief Justice intends that structured and well-reasoned sentencing remarks will become normal practice and would encourage their publication.”
NOW Grenada understands that the date for implementation of the new sentencing guidelines have been pushed back from 3 May to 3 June.