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The
principles of sentencing
Quite often, the public questions the elements that are
considered by judges and magistrates when sentencing offenders.
The sentencing process is actually guided by four major
principles outlined as follows:
Retribution
Deterrence
Prevention
Rehabilitation
Retribution
As the name suggests, when sentencing an offender, the judge
or magistrate considers the effect of the punishment.
This aspect of sentencing deals heavily with the injustice
suffered by the victim, so the gravity of the sentence should
be equal to that of the offence committed.
When determining the penalty that is to be handed down,
the judicial officer will think of the inconvenience and
often, the pain suffered by the victim.
It is worthy to note that the victim may also be the State
and not necessarily any specific person.
Deterrence
Additionally, a sentence is given to an offender to deter
him or her and others from committing the offence, either
again, or at all.
For example, a sexual offender who has been convicted of
an assault may receive a harsher sentence than someone convicted
of regular assault resulting from a fight.
This is because the nature of a sexual assault is considered
much more serious in the eyes of the law and is an offence
that the State wishes to discourage.
Therefore, by imposing a harsh sentence such as incarceration,
a message is sent to potential offenders that they, too,
would be subject to a similar fate if they choose to participate
in that criminal activity.
Sentencing is not meant to dissuade potential offenders
only, but also the individual before the court. There is
an alarmingly high number of criminals who become repeat
offenders after their initial conviction.
The court will, therefore, take into consideration whether
it is the person’s first offence.
An individual may be given a lenient sentence, such as a
non-custodial one, where he is required to sign a bond to
keep the peace, when he is a first-time offender for a crime
which is not severe.
There is then a balancing exercise by the judge or magistrate
to ensure that the sentence is not too gentle, so that the
perpetrator will feel as if he or she has easily escaped
reprimand, yet not so harsh as to ignore that he has previously
been in good standing with the law.
Prevention
The prevalence of the offence is also examined when the
judicial officer thinks about deterrence. If it is a particularly
popular offence, such as kidnapping was a few years ago,
the judge may wish to impose a serious penalty to deter
persons who have the opportunity to become involved in such
illegal activity.
By doing so, the judge makes it known to the public that
the court will not tolerate the prevalence of this offence,
and is taking a stand against it.
The aim of the sentence is, then, to prevent the recurrence
of the offence.
Rehabilitation
Also, one major aim of sentencing is the rehabilitation
of the offender. More recently, the focus of sentencing
has shifted from being significantly retributive to one
that embraces the need to reform the offender.
This is seen in the variety of penalties that may be imposed
aside from the usual imprisonment.
Since there is a trend of criminals returning to the courts,
a better sentence would be one which involves rehabilitating
those offenders who can be assisted.
This is especially true for juvenile offenders.
A modern approach to sentencing which relies on rehabilitation
is seen in community service orders, which demand that the
offender perform a set number of hours at a community facility
such as a senior citizens’ home.
Also, there are orders which require juvenile offenders
to undergo a period of training and supervision at institutions
including the Youth Training Centre.
Psychiatric evaluation and assistance is usually associated
with these sentences, as a social worker may be assigned
to report on the offender’s progress.
These principles of sentencing are not taken in isolation
though. The court is always mindful of mitigating factors,
and will pay heed to relevant circumstances before sentencing.
Therefore, attention is paid to the offender’s personal
characteristics, such as age and whether strong community
ties exist, which includes having a family, a fixed address
and employment.
As with a first-time offender, a guilty plea is also usually
taken into account, and may invoke sympathy from the court,
since by it, the offender appears penitent.
These factors, together with the principles previously outlined,
guide the courts when imposing a sentence.
Cindy F Daniel and Westmin James
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