Is there a standard system of sentencing in the justice system? If not, why? The question comes against the background of a recent case reported in the media, where a woman chopped her daughter on the hand for stealing. The woman was sentenced to three months in prison. Consider a case where a man is caught with a ganja spliff and receives a three-year sentence. Is there a judiciary oversight body that advises judges on sentencing?

Jamaica's justice system is based on the separation of powers doctrine. A key element of this doctrine is that in so far as sentencing is concerned, the legislature prescribes and the judiciary imposes the sentence.

Discretion

The legislature usually prescribes the maximum and/or minimum sentences that an individual may face. The judiciary is invested with the discretion as to whether it will impose the maximum or minimum sentence prescribed by the legislature or somewhere between the two extremes.

There is, therefore, no standard system of sentencing in Jamaica's justice system. Specific offences are usually outlined in the statutes and a penalty prescribed for its breach. There are some instances where the penalty is not prescribed by the legislature for certain offences (usually common-law offences) and the judges, by following the precedent in past cases, would impose a fine or imprisonment. These cases are rare.

Different sentences

Judges apply sentences based on the direction given by the applicable statute, the facts of the case, including any extenuating circumstances and the guidance of previous court decisions on the matter. The reality therefore is that each case turns on its own facts and although similar offences may be committed, it is possible that two breaches of the same offence may attract different sentences. This to a large extent is dependent on the discretion of the judge. In addition, a breach of one offence may attract a harsher sentence than a breach of what could be considered a lesser offence.

In the example given, the three-month sentence of a mother found guilty of chopping her daughter is compared with the three-year sentence of a man caught with a ganja spliff. Of course, in determining that one offence is more egregious than the other, we exercise human judgement. Notwithstanding, these offences are unrelated. The sentence imposed may also be affected by the behaviour of the accused after being charged with the offence. Harsher sentences are imposed on repeat offenders. This may not be the case, but in the example cited, the explanation could well be that the person convicted of possession of ganja was a repeat offender whereas the mother convicted of wounding was a first-time offender.

Similarly, a person who pleads guilty may be able to demonstrate to a judge that he/she is not only remorseful, but seeks to take responsibility for his/her actions which may persuade a judge to exercise leniency in sentencing. This is compared to a person who pleads not guilty and during the course of the trial shows no remorse for his/her actions and wastes the time of the court in going through the exercise of a trial. Such a person will receive a heavier sentence albeit both persons were charged with the same offence.

Although there is no formal judicial oversight body, the appeals process of the legal system allows for decisions of one court to be reviewed by a higher court. However, it should be noted that a judge's decision cannot be challenged based on whether the sentence imposed is excessive or oppressive, but must instead be challenged based on an error of law or whether a reasonable judge faced with the same facts or circumstances could have come to that decision.

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