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DPP explains concept of Sentence Reduction Day

Friday, January 12, 2018

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DIRECTOR of Public Prosecutions Paula Llewellyn explained, in a recent letter to the Jamaica Observer, the concept of Sentence Reduction Day, Informal and Formal Plea Negotiations Agreement and the case of Regina vs Phillip Brown.

INTRODUCTION

The concept of Sentence Reduction Day, Informal and Formal Plea Negotiations Agreement and the case of the Regina vs Phillip Brown — “Crystal Towers murder” — have been part of the public discourse recently. The Office of the Director of Public Prosecutions will now, in the public interest, seek to provide clarity.

INFORMAL PLEA BARGAINING

It has been a long established principle at common law that where an accused person pleads guilty, he or she is afforded a discount in the sentence as judicial time would not have been wasted and the cost of a trial would be saved. Additionally, witnesses, and in particular victims, would be spared the trauma of having to give evidence in court.

At common law informal plea negotiation may arise in the following circumstances:

1. An accused may offer to plead guilty to a lesser offence than the one for which he is charged in circumstances where the facts may disclose a lesser offence. For example, where an accused is charged with murder, he may offer to plead guilty to the offence of manslaughter where on the facts of the case provocation arises or there is a lack of intent to commit murder.

2. Where multiple persons are charged with an offence:

(i) one or more accused may plea guilty to the offence and the prosecution may exercise the discretion to offer no evidence/no further evidence against the other co-accused.

(ii) One or more accused who participated in the commission of the offence may offer to plead guilty and thereafter, testify against his co-accused.

Generally speaking any accused person after being charged and placed before the court can plead guilty at any time before or during a trial.

FORMAL PLEA BARGAINING

The informalities of plea bargaining at common law, which were largely matters of established practice between the prosecution and defence, were refined and codified by Parliament through the Plea Negotiations and Agreements Act of 2017. The main features of the Act:

i. require the plea agreement between the prosecution and defence to be in writing;

ii. facilitate involvement of the victim or the victim's family (if they are available) at the plea bargaining stage; and

iii. create a legislative space for the prosecution to make submissions on sentencing.

iv. The prosecutor and the defence counsel after consultation may make a recommendation to the court for a particular sentence though the court is not bound to accept it.

Though the Plea Negotiation Act has been enacted the Common Law situation is still in place where informal plea negotiations can take place without the benefit of anything in writing.

SENTENCE REDUCTION

The Amendments to the Criminal Justice (Administration) Act codified the position at common law where accused persons would benefit from a reduction in the usual sentence for offences where they plead guilty.

The Act makes provisions for reduction in sentences from a high of up to 50 per cent, to a low of 15 per cent which is dependent on what stage the accused persons plead guilty. That is to say, for an accused person to benefit from the maximum discount of up to 50 per cent, they will have to plead on or before the first relevant date. The first relevant date is the date on which all documents concerning the case have been served on the defence and they know what the crown's case is. The maximum benefit starts decreasing thereafter and continues any time before a verdict is given. Of course it goes without saying that if the matter goes to full trial then the defendant runs the risk of being sentenced to the maximum or on the higher end of the starting point before factors outlined from (i) to (vii) are taken into account by the judge.

WHAT IS SENTENCEREDUCTION DAY?

Sentence Reduction Day was introduced and implemented by the Criminal Case Management Steering Committee with the blessings of the Ministry of Justice as a way to increase awareness of the provision of the Act and for accused persons who had been in the court system for years without their matters having been tried to utilise it. Therefore, on the designated sentence reduction day during the court term it is deemed or treated as the first relevant day by the stakeholders in the court system and the accused will derive the benefit of a discount of up to 50 per cent if they plea guilty under any circumstances, whether as part of a plea negotiation agreement or straight guilty plea. Consequent on the recent success of the Sentence Reduction Days thus far, there will be a roll out on a phased basis in the courts in 2018.

In October 2017, the Sentence Reduction day in the St Catherine Circuit Court, the Home Circuit Court and the Gun Court saw at least 40 people pleading guilty.

THE MATTER OFREGINA vs PHILLIP BROWN OTHERWISE CALLED THE CRYSTAL TOWERS CASE

The accused Phillip Brown was charged for the offence of murder arising from the death of Ms Kerry Ann Wilson. This case was highly publicised as the 'Crystal Towers Murder'. There were no eyewitnesses to the murder and the accused man's caution statement was the only account available as to how the offence was committed. In the accused man's four-page caution statement, among other things, Mr Brown stated that he repeatedly asked his ex-girlfriend, the deceased, to rekindle the intimate relationship and said that “it always get me angry inside me, when she say I will think about it”. After he lost his self-control he used a hammer to hit her in the head and sought to dispose of the body wrapped in tarpaulin in gully. He was, however, surprised when a security guard accosted him and he dropped the body and ran. He was arrested and charged for the offence of murder within a week thereafter. The Crown accepted “of not guilty of murder but guilty to the offence of manslaughter” based on the fact that the defence of provocation in law arose on the Crown's case. In this case, if the matter had gone to trial the judge would have had to leave the lesser offence of manslaughter to the jury based on the fact that the defence of provocation arose on the Crown's case.

WHAT IS LEGAL PROVOCATION?

In law, the defence of provocation arises on a charge of murder where “there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both) to lose his self -control, the question whether the provocation was enough to make a reasonable man do as he did should be left to the jury...”

In arriving at an appropriate sentence for the accused Phillip Brown, the learned Judge of the Supreme Court Mr Justice Martin Gayle took into account a number of factors. Some of these are:

(i) the time the accused has spent in custody;

(ii) recommendations made in the Social Enquiry Report;

(iii) antecedent report (the accused person's criminal history) (if any);

(iv) the weapon used to commit the offence;

(v) the facts of the case;

(vi) aggravating and mitigating factors; and

(vii) plea in mitigation by defence attorney.

Please note that the social enquiry report reflects the views of the community in which the accused lived and the views of the victim as well as family members.

SENTENCING GUIDELINES AND HOW THE JUDGE ARRIVES AT THE FINAL SENTENCE FIGURE

There is in existence draft sentencing guidelines which have been prepared by the judicial officers and which will be formally launched in January 2018. This document outlines a range of sentences for particular offences and are not mandatory but are meant as guidelines to the judiciary. For manslaughter, the normal range of sentence is generally anywhere from three years to 15 years imprisonment. It is recommended that the usual starting point should be seven years imprisonment, but it could be more depending on the circumstances of the case. Thereafter, if the plea takes place on Sentence Reduction Day or the first relevant date the judge will take off a percentage from the starting point then go on to consider all the relevant factors outlined in (i) to (vii) above to arrive at his final sentence figure.

Phillip Brown was sentenced to 15 years imprisonment at hard labour and he is not eligible to be paroled before he has served 10 years. Though one will always be sensitive to the feelings of loved ones of both the accused and victims, it would appear that the sentence was more than within the acceptable range as provided by case law and the sentencing guidelines and in fact was on the higher scale of the range for manslaughter.

Sentencing will always remain the most difficult function of a judicial officer and it must never be forgotten that in the final analysis each case must always be assessed on the particular facts and the relevant law.

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