Over the last two weeks, several journalists and persons associated with some of the human rights organisations, as well as others who have access to the media in general, have made numerous comments about the case of a radio personality who was convicted of two counts of carnal abuse and reportedly given a non-custodial sentence.

The weight of the comments is that he should have been sent to prison, thus implying that the judge was dead wrong in the way she applied her discretion to give him a non- custodial sentence. The sentence raises the issue of the unevenness of sentencing in Jamaica, and it is also hoped that the many persons who have made their comments will not drop the ball on this one but to go further and look at bail in particular, and the access to justice in general. Anything else would only be a splash in the pond, when it is convenient, or better yet, when there is an interest to serve.

Difficult job

At the end of each criminal case, if the accused is found guilty, the judge has a very difficult task to perform and that is sentencing the person convicted of the crime. This might be the most difficult job for a judge at a criminal trial.

To assist the judge, the police prepare what is called an antecedents report, which gives a background of the convict to include his age and criminal records, if any. The convict may call character witnesses. These are persons who would come to court and tell the judge about the many good deeds of the convict and how much they and the community in which the convict resides were surprised that the 'choir boy' has got himself into trouble.

The judge may also order a social enquiry report. This is prepared by the Probation Office and involves a detail written report to the judge after careful interviews with the accused, his parents or guardians and members of his community or work place. Thereafter, the lawyer for the convict will address the court in what is called a plea in mitigation. His duty is to indicate some positive things on behalf of the convict and to suggest to the judge, as an officer of the court, what might be the best sentencing option. On most occasions, it is only after this process is complete that a judge, after very careful consideration, makes a determination on what is the best sentencing option. If it is non-custodial, the court may determine if it should be a Probation Order, a fine or suspended sentence, among others. If the convict has to go to prison, the judge will determine the duration and any other appropriate orders.

It is common knowledge, that the judge in deciding what is the best sentencing option must now consider, among other things, whether to give a sentence to act as a deterrent, how long the convict has already spent in custody (punishment), what can be done to rehabilitate the person, the age of the convict, who is dependent on him, whether he is a danger to civil society that you have to remove him forthwith, and the effect of his action on the complainant, on the complainant's family and on society in general. After all of this, a judge being guided by the law as to the maximum sentence as well as to the options and taking into account the age of the convict at the time of the offence and the prevalence of the offence should give a sentence that is best for the convict and society as some judges will speak of their duty to the public.

Judges need independence

There is no doubt that there is a place for journalists, human rights organisations and members of the public to comment and ask questions about a judge's discretion in sentencing but what is clear is that the judge is in the best position to determine the type and nature of sentencing, and this should be acknowledged.

In fact, we must fight, as a society, for the independence of the judges as it will not be a good sign if judges have to think about what the journalists and human rights organisations will say about their decisions before they are taken. There is a false perception that those who have access to the media reflect the will of the majority of society. Oftentimes, nothing can be further from the truth. Enough said.

Keith N. Bishop is an attorney at law and partner in the firm of Bishop & Fullerton. He may be contacted by email at knb@bishopfullerton.com