WEEK 6: TOPIC 6: Sentencing

• This week we will discuss about sentencing.

• The post-conviction stage of the criminal justice process, in which

the defendant is brought before the court for the imposition of a
penalty.If a defendant is convicted in a criminal prosecution, the
event that follows the verdict is called sentencing. A sentence is
the penalty ordered by the court.
 Sentences and the Sentencing Process

• Following a conviction, the judge must determine a sentence. This involves a

separate proceeding from that of the trial:
• new arguments are made by counsel, with each side making submissions on an
appropriate sentence;
• the range of matters in issue is broader than for a trial: for example, the
motivation for an offence will generally be immaterial at the trial but can be
very important for the sentence. The sentencing process can involve a broad-
ranging inquiry. This is quite unlike the trial process with its narrow
concentration on whether the elements of the offence occurred and whether
the elements of any defence were present.
• rules for the admissibility of evidence are more liberal: for example, written
references on the character of the defendant may be presented to the court;
• allegations of fact by the prosecution must be proved if not agreed but need
not necessarily meet the test of ‘beyond reasonable doubt’.
Contin..

• In a case where the defendant pleads guilty, the sentence

proceeding will begin with a statement of the facts known to the
prosecution. The proceeding them moves to the sentence
submissions, counsel for the defendant speaking first and the
prosecutor replying.
 Sentencing Options

• The sentencing options which may be available to a court include:

• (a) record a conviction and order that the offender serve a term of
imprisonment;
• (b) record a conviction and order that the offender serve a term of
imprisonment that is wholly or partly suspended;
• (c) with or without recording a conviction, make an order for community work
to be undertaken
• (d) with or without recording a conviction, make a probation order;
• (e) with or without recording a conviction, order the offender to pay a fine;
• (f) with or without recording a conviction, order the discharge of the offender;

• These options are available even if the provision creating an offence just states
a particular penalty such as imprisonment.
Contin..

• In calculating the time to be served in imprisonment, time spent in custody prior

to trial is ordinarily regarded as a period of imprisonment already served. This
period is deducted from the time still to be served.
• It is sometimes said that a sentence of imprisonment should be an option of last
resort, and there is a statutory provision to this effect in the Fiji Sentencing and
Penalties Act 2009. Making imprisonment an option of last resort simply means
that other options must be considered and rejected before a sentence of
imprisonment is imposed. It does not mean that an offender must have a prior
record involving other sanctions and that a first offender cannot be sentenced to
imprisonment.
• Activity – Read the case of Williams from the readings for this week.
• When a sentence of imprisonment is suspended, the offender is released but, if
another offence is committed within a specific period of time (the ‘operational
period’) the offender can be required to serve the original term of imprisonment.
 DPP v Jolame Pita (1974)

• In DPP v Jolame Pita (1974) 20 FLR 5, Grant Actg CJ outlined the criteria for
suspending a sentence:
• 
• Once a court has reached the decision that a sentence of imprisonment is
warranted there must be special circumstances to justify a suspension, such as
an offender of comparatively good character who is not considered suitable for,
or in need of probation, and who commits a relatively isolated offence of a
moderately serious nature, but not involving violence. Or there may be other
cogent reasons such as the extreme youth or age of the offender, or the
circumstances of the offence as, for example, the misappropriation of a modest
sum not involving a breach of trust, or the commission of some other isolated
offence of dishonesty particularly where the offender has not undergone a
previous sentence of imprisonment in the relevant past.
Contin..

• 
• Fines are often now expressed in terms of ‘penalty units’ valued at a sum of money.

• The phrase ‘without recording a conviction’ can be misleading. It means that the
offender can present himself or herself to the world as if there had been no conviction.
Thus, the offender can answer ‘no’ on an official document if asked whether or not he or
she has been convicted of an offence. However, a conviction is entered in official records
and can be raised in the future if the offender is sentenced for another offence.

• The severity of a sentence of imprisonment is a function of not only the sentence actually
imposed (the ‘head sentence’) but also the minimum period which must be served before
the offender is eligible for release on parole, licence or remission.
 Chirk King Yam v State [2015]

• In Chirk King Yam v State [2015] FJCA 23 at [7], the Court of

Appeal said this about parole:
• … very long parole periods are rarely desirable. On the other hand,
the minimum sentence cannot be fixed so close to the head
sentence that it may fail to give effect to the prisoners' prospects
for rehabilitation and so mitigate punishment. The prospect of
early release also serves as an incentive to the prisoner to behave
within the prison setting and to pursue rehabilitative programmes.
• Activity – Check what sort scheme operates in your jurisdiction
for a prisoner’s release on parole, licence or remission. Look
under Parole Act or Prisons Act.
 Sentencing Discretion

• 
• The penal liability for each offence is determined either by the provisions creating that offence
or, for some minor offences, by general penalty provisions in statutes dealing with courts or
procedure.

• There are a few instances of mandatory penalties: for example, murder generally carries a
mandatory sentence of life imprisonment. Ordinarily, however, the prescribed penal liability is
a maximum and a judge has discretion to impose a lesser sentence. Offences typically adopt the
formula: ‘is liable to imprisonment for x years (or to a fine of y dollars)’.

• Fiji and Vanuatu provide for sentencing using the simple formula: ‘Penalty – Imprisonment for x
years.’ However, ‘penalty’ is defined to mean the maximum penalty and a lesser sentence will
usually be imposed.
Contin..

• The type and magnitude of a sentence is therefore usually a matter for

the discretion of the judge. In David Ironimo v R (Solomons Unrep.
Criminal Case No. 3 of 1998) Kabui J said at 3:

• 'There are no hard and fast rules about the process of sentencing. There
are many relevant factors involved. The position was nicely put by Ward
CJ in Joel Likilia & Allen Kokolabu v R [1998/89] SILR at page 149 and I
quote, "Sentencing is not a process that follows exact mathematical
rules. Circumstances and people vary and it is undesirable to consider
such comparisons as more than a very imprecise guide."
 Samoa Sentencing Act 2016

• The Samoa Sentencing Act 2016 s 6 says that, in sentencing or otherwise dealing with a
defendant, the court must:
• (a) take into account the gravity of the offending in the particular case, including the
degree of culpability of the defendant; and
• (b) take into account the seriousness of the type of offence in comparison with other
types of offences, as indicated by the maximum penalties prescribed for the offences; and
• (c) impose the maximum penalty prescribed for the offence if the offending is within the
most serious of cases for which that penalty is prescribed, unless circumstances relating to
the defendant make that inappropriate; and
• (d) impose a penalty near to the maximum prescribed for the offence if the offending is
near to the most serious of cases for which that penalty is prescribed, unless
circumstances relating to the defendant make that inappropriate; and
Contin..

• (e) take into account the general desirability of consistency with

appropriate sentencing levels and other means of dealing with defendants
in respect of similar defendants committing similar offences in similar
circumstances; and
• (f) take into account any information provided to the court concerning the
effect of the offending on the victim; and
• (g) take into account any particular circumstances of the defendant that
mean that a sentence or other means of dealing with the defendant that
would otherwise be appropriate would, in the particular instance, be
disproportionately severe; and
• (h) take into account the defendant’s personal, family, community, and
cultural background in imposing a sentence or other means of dealing with
the defendant with a partly or wholly rehabilitative purpose.
 Fiji Sentencing and Penalties Act 2009

• See also the lists in the Fiji Sentencing and Penalties Act 2009 s 4. Similar
factors are taken into account in jurisdictions without statutory lists.
• The various factors might be grouped in this way:
• Gravity of offence
• eg max penalty; seriousness and harm; degree of personal culpability
• Background and prospects of offender
• eg character; age; aggravating and mitigating factors
• Interests of criminal justice system
• eg guilty plea; assistance to police; prevalence of offence
• Other factors
• eg time in custody
Contin..

• A judge therefore can, and usually will, choose a sentence below the maximum.
The maximum sentence is reserved for cases of the worst sort of their type and
is rarely imposed. For example, in Bae v State [1999] FJCA21, the court made
the following comments about sentencing in manslaughter cases, despite the
offence carrying liability to life imprisonment at the time the case was decided:
• 
• The cases demonstrate that the penalty imposed for manslaughter ranges from a
suspended sentence where there may have been grave provocation to 12 years
imprisonment where the degree of violence is high and provocation is minimal.
It is important to bear in mind that this range covers a very wide set of varying
circumstances which attract different sentences in different manslaughter
cases. Each case will attract the appropriate sentence within the range
depending on its own facts.
• 
 Sentencing Purposes and Principles

• The discretion available to a sentencing judge does not, however, mean that a judge
can give free rein to this or her personal opinions. Sentencing is subject to various
constraints. A sentence must be justifiable by reference to the recognized purposes of
sentences and reached by applying appropriate sentencing principles.
• It has been said that the purposes for which a sentence may be imposed are: just
punishment; protection of the community; specific and general deterrence (‘specific’ =
deterrence of the offender; ‘general’ = deterrence of any other potential offenders);
rehabilitation of the offender; denunciation of the conduct; or a combination of these.
Any sentence must be justifiable by reference to these purposes.
• Sentencing principles include:
• The principle of individualisation
• The principle of proportionality
• The principle of totality, including the principle of concurrency
• The principle of consistency or parity
 1. The principle of Individualisation

• A fundamental principle of sentencing is what might be termed

the principle of individualisation. This is the principle that a
sentence should be appropriate for all the features of the
particular case, including not only the circumstances of and
background to the offence but also the history and prospects of
the offender.
• The individualisation principle does not mean that all factors have
equal weight. In general, ‘offence’ factors are more important
than ‘offender’ factors. Nevertheless, the offender’s character is
an important factor.
Contin..

• The Fiji Sentencing and Penalties Act 2009 s 5 identifies some matters which
may be considered in determining the character of an offender.
• In determining the character of an offender a court may consider (amongst
other matters) —
• (a) the number, seriousness, date, relevance and nature of any previous
findings of guilt or convictions recorded against the offender;
• (b) the general reputation of the offender; and
• (c) any significant contributions made by the offender to the community, or
any part of it.
• ‘General reputation’ is not a matter for consideration in most jurisdictions.
Ordinarily ‘character’ is determined by reference to more reliable indicators.
Taking account of general reputation might be regarded as a peculiar feature
of sentencing in Fiji.
 2. The Principle of Proportionality

• A sentence should be proportionate to the gravity of the offence. This is

generally called the principle of proportionality. The proportionality
principle is also often called the ‘retributive’ principle in works on the
philosophy of punishment. This does not mean retribution in the sense of
‘an eye for an eye’. The point is not that the punishment should mirror the
crime but rather that the scale of punishment should be aligned to the
scale of gravity for offences. The severest punishments should be imposed
for the worst offences and so on down the scale.
• The proportionality principle is central to discretionary sentencing. The
principle is also reflected in the design of penal liability for offences.
Differences in the maximum penalties prescribed for offences express the
legislature’s assessment of differences in the seriousness of the offences.
Compare, for example, the different maximum penalties for assault and its
various compounds such as assault causing bodily harm or indecent assault.
Contin..

• Proportionality may be a difficult issue when a person is to be

sentenced for more than one offence, such as a series of burglaries.
Imposing a number of separate, cumulative sentences could create
a crushing burden, disproportionate to the criminality involved. The
principle of totality has been developed to avoid this outcome. The
totality principle holds that a court sentencing an offender for more
than one offence should not simply impose a number of separate,
cumulative sentences. It should instead consider what would be an
appropriate aggregate sentence. In Sinha v State [2014] FJCA 40 at
[15], it was said that ‘where there is a multiplicity of offences, and
there are specific punishments in respect of them, it is necessary to
take a last look at the total to see whether it looks wrong’.
 The Principle of Concurrency

• The principle of concurrency is a sub-principle to the principle of totality. The

principle is that multiple sentences are to be served concurrently rather than
consecutively.
• The principle of consistency or parity is another fundamental principle of
sentencing. The consistency principle is the principle that similar cases should be
treated alike. In Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [6], Gleeson CJ
said:
• All discretionary decision-making carries with it the probability of some degree of
inconsistency. But there are limits beyond which such inconsistency itself
constitutes a form of injustice. The outcome of discretionary decision-making can
never be uniform, but it ought to depend as little as possible upon the identity of
the judge who happens to hear the case. Like cases should be treated in like
manner. The administration of criminal justice works as a system; not merely as a
multiplicity of unconnected single instances. It should be systematically fair, and
that involves, amongst other things, reasonable consistency.
Contin..

• In Wenu [2015] VUCA 51, it was said that changes in sentence

levels should be made by the Court of Appeal following full
discussion of the issues, not by trial judges
• In some instances where multiple offences are alleged, the
prosecution will choose a limited number of ‘representative
counts’ for prosecution. The cases selected will usually be those
on which the evidence is strongest. A sufficient number will be
charged to provide an adequate basis for sentencing. The
remaining cases, however, will not be pursued in order to save
time and resources. When this happens, a sentencing court is not
entitled to impose a sentence in respect of the uncharged
offences.
 Guilty Pleas

• Discounting sentences for guilty pleas is common in many

jurisdictions. See Week 6 Study Guide.
 Sentencing Methodology

• Sentencing principles are not considered and applied afresh in

every case. The principles underlie patterns of decisions in which
they are largely taken for granted. They are articulated mainly in
difficult cases where their application is troublesome and in cases
where sentences are reversed on appeal for departure from
principle. Other methodologies are used to resolve the mass of
cases.
Contin..

• Courts often adopt what is called a ‘two-stage’ approach to sentencing

(or ‘three-stage’ if there has been a guilty plea). In Andy [2011] VUCA 14,
this approach was described as follows:
• “14. The first task of the Court is to set the starting point bearing in
mind the maximum penalty for offending of the most serious culpability…
15. The starting point can be defined as the sentence of imprisonment
that reflects the seriousness of the offence and the culpability of the
actual offending…
• 17. Once the starting point has been reached the Court, then embarks on
the second step which is the assessment of the aggravating and
mitigating factors relating to the offender personally...
• 18. …as a third step, the trial judge will then consider what discount
from the second stage end sentence should be applied for a guilty plea…”
 Quorai v State [2015]

• The ‘two-stage’ approach is also used in Fiji. In Quorai v State [2015]

FJSC 15, it was said:
• 
• [49] In Fiji, the courts by and large adopt a two-tiered process of
reasoning where the sentencing judge or magistrate first considers the
objective circumstances of the offence (factors going to the gravity of the
crime itself) in order to gauge an appreciation of the seriousness of the
offence (tier one), and then considers all the subjective circumstances of
the offender (often a bundle of aggravating and mitigating factors relating
to the offender rather than the offence) (tier two), before deriving the
sentence to be imposed.
 Kreimanis v State [2015]

• At the first stage the focus is on the pattern of sentencing for

cases comparable in type and seriousness. Based on the
precedents, a ‘starting point’ sentence for the offence is
established. This reflects the consistency principle. In Kreimanis v
State [2015] FJCA 13 at [17], it was said:
• There is no hard and fast rule regarding the selection of the
starting point. Generally the starting point is selected from the
established tariff without regard to mitigating or aggravating
factors.
Contin..

• At the second stage, aggravating and mitigating factors in the

immediate case are considered in order to fine-tune the sentence in
light of the individualisation principle. The exercise has a quasi-
mathematical character as additions or reductions are made to the
‘starting point’ sentences.
• Sentencing guidelines offer another way to structure sentencing
discretion. Sentencing guidelines are general directions as to the type
of sentences which may be appropriate in particular types of cases. In
most jurisdictions where they are used, judges are expected to take
them into account but retain discretion over the final result in the
individual case.
 Sulua v State [2012]

• In Sulua v State [2012] FJCA 33 at [115], the Fiji Court of Appeal proposed quite precise
guidelines for sentencing for the offence of possession of cannabis savita, based on the
quantity of the drug:

• (i) Category 1: possession of 0 to 100 grams…- a non-custodial sentence to be given, for

example, fines, community service, counselling, discharge with a strong warning, etc. Only
in the worst cases, should a suspended prison sentence or a short sharp prison sentence be
considered.
(ii) Category 2: possession of 100 to 1,000 grams ... Tariff should be a sentence between 1
to 3 years imprisonment, with those possessing below 500 grams, being sentenced to less
than 2 years, and those possessing more than 500 grams, be sentenced to more than 2 years
imprisonment.
(iii) Category 3: possessing 1,000 to 4,000 grams... Tariff should be a sentence between 3
to 7 years, with those possessing less than 2,500 grams, be sentenced to less than 4 years
imprisonment, and those possessing more than 2,500 grams, be sentenced to more than 4
years.
(iv) Category 4: possessing 4,000 grams and above... Tariff should be a sentence between 7
to 14 years imprisonment.