Eleven years ago a number of interesting determinations related to sentencing came out of Barbados’ Court of Appeal in the matter of the Queen v Kurt Ricardo Skeete, deliberated before then Chief Justice Sir David Simmons and Justices of Appeal Frederick Waterman and Peter Williams.
The Director of Public Prosecutions had referred to the Court of Appeal for review the sentence of four years imprisonment imposed by Justice Elneth Kentish on the respondent for the crime of manslaughter. The DPP sought a review on the ground that Justice Kentish’s sentence was unduly lenient.
Skeete and three others had been indicted for the murder of taxi driver Philip Graham. Skeete pleaded guilty to manslaughter, while based on the circumstances of the case, no evidence was offered against the other three and they were discharged.
The DPP submitted that the four-year sentence was unduly lenient because the protection of the public necessitated a deterrent sentence. He also contended that the offence was pre-meditated and the respondent planned to target vulnerable persons. Such conduct leading to death, he said, must be punished severely. In addition, the Director argued that the public had a right to expect the courts to impose a sentence commensurate with the law, otherwise public confidence in the administration of justice would be undermined.
Though that was a case specifically of manslaughter, the overriding tone and texture of the DPP’s argument was that public confidence in the administration of justice needed to be maintained and that the public had an expectation of its judiciary to impose sentences commensurate with the law.
The late Geoffrey Lane, Lord Chief Justice of England between 1980 and 1992, described the test of undue leniency thus: “A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection, regard must of course be had to reported cases, and in particular to the guidance given by this Court from time to time in the so-called guideline cases. However, it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.”
Peter Taylor, Lord Chief Justice of England between 1992 and 1996 also had his say about sentencing, and the attached public confidence in the process.
“We bear in mind that judges have a discretion to pass sentences which they consider appropriate in the circumstances of individual cases and one must not regard the sentences in other cases, even in guideline cases, as being rigidly and unvaryingly bound to be followed. However, in the present case, bearing that in mind, we ask ourselves whether public confidence in criminal justice could be maintained if the public were aware of the circumstances of this case and the sentence which was passed”.
Again, in both observations the underlying factor appears to be public confidence in the sentencing process.
During the deliberations in the R v Kurt Ricardo Skeete Appeal, reference was made to Barbados’ Penal System Reform Act with respect to a sentencing regime based on the seriousness of an offence and the idea of proportionality in sentencing.
The suggestion was that when faced with a serious offence, a sentencer must first ask the question whether the conduct of the defendant took it beyond the threshold for non-custodial punishment and into the realm of custodial punishment. If the sentencer determined that the conduct merited a custodial sentence, the aggravating and mitigating factors must then be weighed and, thereafter, a sentence fixed that was proportionate to the seriousness of the offence.
History will show that Skeete’s unduly lenient sentence was raised from four years to 13. And this brings us to another piece of history, perhaps still unfolding.
Over the past week three Barbadians were given between 18 months and two-year suspended sentences for fraudulently activity over a period of nine years that netted them in excess of $4 million. It was pointedly stated during the sentencing process that the crimes merited custodial sentences. The three convicts are not at HMP Dodds.
Yesterday, another Barbadian was sentenced to two years imprisonment at Dodds for stealing a pack of peas and a bar of soap.
We ask: Is public confidence in the administration of justice in Barbados intact?