Judges to get more leeway on repeat offenders

The government has proposed amendments to the Penal System Reform Act that would give judges more flexibility to consider relevant previous convictions, Minister of Home Affairs Gregory Nicholls has told Parliament.

As debate began on the Penal System Reform (Amendment) Bill in the House of Assembly on Tuesday, Nicholls noted that the law is the starting point for the sentencing process.

The legislation was intended to ensure that prison sentences were based on the seriousness of the offence and that punishment was proportionate to the crime committed, as the government conducted a complete review of the penal system.

“We are looking at all the legislation that deals with sentencing particularly the Penal System Reform Act, the Probation of Offenders Act, and all the other pieces of legislation that undergirds the work that’s done in the penal system of Barbados. We have come to the view that the legislation needs amendments in a more comprehensive way.”

He said the wider review is not yet complete, but the government had identified a specific issue that required an amendment.

The minister pointed to repeat offenders as one of the central challenges facing the criminal justice system, saying the current law does not always account for persistent patterns of similar criminal behaviour.

He said this was the issue the amendment seeks to address by amending Section 40 of the Penal System Reform Act, which states that an offence shall not be regarded as more serious for the purposes of any provision of the act by reason of any previous convictions of the offender or any failure on the part of the offender to respond to previous sentences.

“This section therefore was designed to ensure that there was fairness and rehabilitation crafted into the legislation to ensure that any individuals in conflict with the law were not perpetually punished for the same offence, and we understand that it also ensured that each offence had to be weighed on its merits so that you could not punish an offender because they had a pattern of behaviour that was similar to the matter that was before the court.

“If that pattern of behaviour had some relevance to the offence in question, then that would be considered.”

But Section 40, subsection 2 of the act only partially addresses the concern, as it states that where there are any aggravating factors for an offence disclosed by the circumstances of other offences committed by the offender, nothing in the law prevents the courts from taking those factors into account for the purposes of forming an opinion as to the seriousness of the offence.

Nicholls continued: “What we have found is that judges have routinely stepped away from having to deal with what may appear at first glance to be a conflict between subsection 1 and subsection 2 of Section 40. As a result, the courts have generally treaded cautiously and were unable to fully reflect the patterns of persistent or escalating criminal behaviour when dealing with sentences before the court in respect of repeat offenders. This has contributed to a lot of concern among judges, and that sentencing can sometimes appear to be detached from the offender’s broader criminal conduct.”

He suggested the amendment would restore flexibility by allowing judges to determine whether there is a genuine connection between an offender’s previous record and the current offence.

“Judges must therefore be free to look at the facts of a particular case and to look at the circumstances of an offender and to determine whether there is a genuine connection between the offender’s past record and the particular offence that is before the court.”

The amendment would allow previous convictions to be considered only where they are directly relevant to the offence before the court, while modernising sentencing practices and enhancing judicial discretion, Nicholls said.

“The aim, therefore, is to modernise the current sentencing practices permitted by the courts to take prior relevant convictions into account, thereby enhancing the judicial discretion of the courts. So the bill has therefore a simple objective: to ensure that our courts are equipped to make fair, informed, and proportionate decisions when it comes to sentencing. It does so by allowing the judges to consider the previous convictions of an offender only where those convictions are directly relevant to the offence that is before the court.”

Previous convictions cannot be used to determine guilt. A jury must not use an accused person’s previous conduct or convictions to decide whether they committed the current offence. Unrelated offences, such as a traffic offence in a fraud case, would remain irrelevant.

But a person repeatedly convicted of the same type of offence is likely to receive a longer prison sentence, with fewer non-custodial options such as probation, suspended sentences or fines in serious cases. Nicholls said the amendment would apply across the criminal justice system rather than targeting a particular offence or offender.

“This amendment speaks to all of the gamut of offences in the criminal system. We are not targeting any one particular offence or any one particular offender who is before the courts. I can say without any fear of contradiction this does not speak to persons who have been convicted and have been sentenced. This will speak to persons who are now before the courts facing fresh charges.”

He said judges would also be able to assess whether offending showed a persistent pattern or was escalating in seriousness.

“In relation to the recognition of patterns and escalation. The judges can now evaluate whether the offender shows a persistent behavioural trend and whether the conduct is escalating in its seriousness. People graduate from one type of crime to the next. Those are circumstances in which the courts can specifically look at the facts and make an objective determination.

The minister noted that this determination can be challenged on appeal.

Stressing that the amendment is not a licence to punish people for their previous convictions, Nicholls said it does not dictate what judges must do or remove their discretion, but instead gives them better tools to exercise it.

He expects to see a stronger response to recidivism, longer sentences or less leniency for some repeat offenders, protection against unfair prejudice and greater judicial flexibility.

The amendment would ensure that sentencing remains focused on relevance and consistency while giving judges better tools to exercise their discretion, Nicholls said. (LG)