CRITICISM of court rulings that impose non-custodial penalties on convicts instead of confinement is grounded in public ignorance of the law governing sentencing which places judges in a dilemma, Appeal Court President Justice Marva McDonald-Bishop has explained.

The issue formed part of McDonald-Bishop’s contribution to the Mona Law Distinguished Lecture Series at The University of the West Indies Law Faculty in Mona, St Andrew, last Thursday.

Noting that “imprisonment is the backbone of most criminal justice systems”, the Appeal Court president said “there are typically strong public expectations for sentences of imprisonment in all cases, even where the law does not permit it”.

Addressing the theme, ‘Heavy is the Crown: Navigating Sentencing Within a Constitutional Democracy’, Justice McDonald-Bishop said, “The first dilemma for a sentencing judge often arises in deciding whether to deprive an offender of his liberty by imposing a sentence of imprisonment or whether the court should impose a non-custodial sentence like a fine, community service, or curfew.

“Determining whether imprisonment is warranted can therefore be contentious and lead to differences of opinion among judges themselves on the one hand, and the public — and not to mention the other branches of Government — on the other. In many cases where non-custodial sentences are imposed, judges are often seen as taking too soft or lenient an approach.”

She said the discourse frequently arises in cases involving motor vehicle manslaughter or causing death by dangerous driving where fines are generally imposed.

“In such cases, public dissatisfaction can be considerable due to the perceived inadequacy of non-custodial sentences for serious harm. But we must note that the inclination towards non-custodial sentences is not a matter of judicial sympathy. Judges are duty bound by statute to first have regard to non-custodial sentence options where those are available, having regard not only to the circumstances of the offence but also the circumstances of the offender,” McDonald-Bishop said.

She pointed out that Jamaica’s Criminal Justice Reform Act imposes a statutory mandate that in all cases where a non-custodial sentence is permitted as an option, it should be the court’s first consideration.

“Imprisonment, therefore, should be reserved as a last resort and for the most serious of offences,” the Appeal Court president pointed out.

She, however, stated that “the language of the Criminal Justice Reform Act still puts judges in the difficult position of deciding what to do in each individual case”.

“In other words, judges continue to face the dilemma of determining which cases are the most serious or last resort… in determining what is the worst of the worst, it’s a serious problem for judges because the legislation offers no clarification on what that means or what judges should consider. But what we do know — based on law, common sense, and a plain reading of the legislation — is that the court must be satisfied that a custodial sentence is the only suitable punishment, given the circumstances of the offence and the offender,” she contended.

“That is to say, the custody threshold must be met. To make these determinations, the court will thoroughly consider all circumstances addressing such factors as the harm caused or likely to be caused, the risk of serious future harm, the offender’s age and maturity, the offender’s criminal history, and general antecedence. However, even if the threshold is met, incarceration may still be avoided through personal mitigation or the suspension of a prison term that, in Jamaica, must not exceed three years,” she said.