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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

©2005-2006 Trinidad Publishing Company Limited

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