Home Letters A dire need for an updated judicial sentencing guideline!
Mr LG made a poignant observation: “the Judiciary needs a complete overhaul.” LG identified, though anecdotally, the disparity in judicial sentencing. One Mr AB of Grove, East Bank Demerara, for example, was initially charged with attempted murder for chopping his neighbour and had his charge reduced to felonious wounding. Mr AB was given a life sentence. And in January 2023 five men were sentenced to 66 years each for the murder of a carpenter in Corentyne.
In another case, the Court of Appeal reduced the sentence of three men from 81 years to 45 years each. Also, a man was sentenced to 17 years for the murder of an inmate (this charge was probably reduced to manslaughter) while he was on remand for allegedly committing two other murders! One person, Mr CR had his 23-year sentence for rape reduced to 12 years by the Caribbean Court of Justice in February 2022. These examples show the disparity in sentencing delivered by different courts.
A massive challenge for the authorities is the number of unsolved cases, especially murders. A well-known case is that of the double murder of a Pandit and his son in Georgetown where the accused was freed. The question arises: who was/were the killer(s)? Where is justice for this family and others who alone must share the burden of unsolved cases?
Several factors tend to influence Judges/Magistrates’ decisions: nature (gravity) of offence, prior conviction, related circumstances, quality of presentation by the prosecution, the legal skill of the defence, offender’s remorse, and public interest. Mitigation factors in cases like murder include but not limited to offender acting in self-defence, under provocation, under duress, afflicted with mental instability, and entrapment. However, these factors are being given different weights by different Judges/Magistrates, as existing laws allow them wide discretion in the sentencing process. These disparities and inconsistencies generate anxiety among the public who desire an alternative approach to sentencing that is characterised by objectivity, rationality, uniformity, and equity.
All sectors of Guyanese society are being modernised, a process that is fuelled by the Government’s innovative development path. The force of change is fittingly captured by Karl Marx at his trial in Cologne in 1849 on a charge of conspiracy when he proclaimed: “Society is not based on law, that is a legal fiction, rather law must be based on society; it must be the expression of society’s common interests and needs……The Code Napoleon which I have in my hand, did not produce modern bourgeois society. Bourgeois society, as it arose in the eighteenth century and developed in the nineteenth, merely finds its legal expression in the Code. …. You cannot make old laws the foundation of a new social development any more than these old laws created the old social conditions.”
Old laws, processes, and procedures are not compatible with Guyana’s new socio-economic development. Some of these, including any judicial sentencing guideline, must be reviewed for relevance. A Sentencing Guideline should draw upon two theoretical streams: classical theory (Cesare Beccaria, Jeremy Bentham, etc) which posits that individuals are rational beings and commit crime of their own free will by weighing the pleasure and pain principle called hedonism. If the pleasure is greater, they will commit the crime; if the pain is greater, they will not commit the crime. The school argues that punishment should be proportionate to the crime to ensure its deterrent impact and must not be viewed as retribution (revenge) but rather as an effort to restore societal order.
The other School of Positivism (Raffaele Garafalo and Enrico Ferri) holds that a person’s behaviour is influenced by both internal and external factors within his environment that go beyond free will. Social and even biological factors could cause individuals to engage in criminal conduct. A person commits crime, for example, because of the internal factor of behavioural disorder. External factors that could lead to criminal behaviour include social, economic, and political. By changing–through removing or neutralising the underlying negative social conditions–the source of crime would be eliminated or neutralised, thus reducing criminality. It is incumbent for society to mitigate the damage caused by criminal acts and apply less punitive methods of sentencing to effect the reform or rehabilitation of the offender.
In formulating or updating any Sentencing Guideline, focus must be given to both approaches (Classical and Positivism) and extract the relevant and salient features to strike a happy Aristotelian mean. Each type of crime, including its severity, should be given a numerical weight (as in the US) and a final score would be realised. Each level of score would relate to a particular sentence for a particular crime and its degree of severity. In this way, the judicial sentencing process would be modernised and reflect the goal of standardisation, uniformity, reliability, fairness, objectivity, and equity.
Dr Tara Singh