Appeal Court President Justice Marva McDonald-Bishop last Thursday sought to soothe public angst over court sentences that run concurrently instead of consecutively, saying that judges are bound by the constitution to administer justice based on the circumstances of each case.

“Sentencing is, and will remain one of the most challenging and closely scrutinised responsibilities faced by members of the judiciary,” McDonald-Bishop stated during the Mona Law Distinguished Lecture Series at the Law Faculty of the University of the West Indies, Mona, St Andrew.

Noting the theme of the lecture: ‘Heavy is the Crown: Navigating Sentencing Within a Constitutional Democracy’, the Appeal Court president said while “the public often calls for consecutive sentences, sharing the view that consecutive sentences appropriately remonstrate serial offenders,” it is not as cut and dried.

McDonald-Bishop noted that in circumstances where more than one sentence is in play, judges must determine whether the sentences should run concurrently (meaning at the same time), or consecutively (which is one after another).

This decision, she said, significantly impacts the total period of imprisonment to be served by a convicted person and will determine, for example, in a case where two 20-year sentences are imposed, whether the convicted person will serve 20 years in the event the sentences are to run concurrently, or 40 years in the event they are to run consecutively.

But “unbeknownst to the public”, the Appeal Court president said, consecutive sentences are not left to the judge’s will.

“Firstly, the common law limits us to ordering consecutive sentences only in specific circumstances such as when the offences were committed on separate occasions or while the offender was on bail for other offences that he eventually was convicted of,” McDonald-Bishop explained.

“Secondly, even if the common law or Parliament expressly permits or requires the court to impose a consecutive sentence in a particular case, the Constitution — which judges are sworn to uphold, especially sections 13 (3) O and 13 (6) — mandates that the courts, when doing so, must ensure the punishment is not grossly disproportionate and does not amount to cruel and inhumane punishment or treatment,” she said further.

“Therefore, we are bound by our supreme law to administer justice based on the circumstances of the case, considering the nature and severity of the offending. The ultimate responsibility is not merely to follow a sense of what you think a person deserves, but to arrive at an proportionate sentence that reflects the overall seriousness of the offender’s conduct, the offender’s peculiar circumstances, and is constitutionally valid,” McDonald-Bishop said.

She noted further that, “while the public’s attention often centres on the outcome, such as the length of the sentence, the headlines, and the associate emotions, there’s much more to sentencing than simply the result”.

“The process is not just about the final decision, but involves careful reasoning within constitutional boundaries, placing a heavy responsibility on the judiciary to ensure justice is both done and seen to be done,” said McDonald-Bishop, who began her lecture by declaring that “no area in the administration of criminal justice provokes more interest, controversy, debate, anxiety, and even anger than sentencing”.

McDonald-Bishop, who made it clear that her statements were solely her opinions and not those of the judiciary nor the Court of Appeal, noted that while the early philosophy of sentencing was mainly retributive — encapsulated in the principle an eye for an eye — over time, this has shifted towards deterrence as societies focused on preventing future crimes rather than purely punishing offenders.

“Sentencing philosophy, policy and practice have come a long way from the days of unstrained judicial discretion to a more principled, transparent, and balanced system guided by established policies, principles, and structured sentencing framework,” she said.

The Appeal Court president also emphasised that “some challenges inherent in judicial decision making can never be fully eradicated”.

“The necessity to make difficult choices will continue and there will be occasions when judges do not reach the perfect solution in every case. The public may not always or perhaps ever agree with our decisions, and much of this disconnect between the judiciary and the public will remain unresolved. Nonetheless, judges must diligently honour their judicial oath, applying the law impartially and without fear of contradiction or repercussions,” she stated.

“Judges must also be unafraid to extend the reach of the law as far as the law allows so that the serious consequences of criminal behaviour are strongly felt by those who commit criminal acts. The burden borne by judges in the dispensation of criminal justice is immense. The metaphorical crown is heavy, and the challenges confronting the judiciary are substantial. Nevertheless, there is a steadfast commitment to mitigating these dilemmas to the best of our abilities in pursuit of justice and the public good,” McDonald-Bishop argued.