Some laws reduce magistrates to being robots

Mar 18, 2015 Letters

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Dear Editor,
Two criminal matters reported in the  March 17, 2015, issue “Man ( age 21)  gets 3 years for 16 grammes of cannabis:,  and “Youth (age 22) gets second change after armed robbers”, highlights the different approaches taken by two seasoned magistrates with respect to sentencing.
In the first matter (Cannabis) a 21-year-old pleads guilty to being in possession of 16 grams of cannabis.  Under S 5(2) (e) of the Narcotic and Psychotropic Substance Act (1988) where a person is found in possession of 15 grammes “Cannabis or Cannabis resin”, he is deemed to be in possession for the purpose of trafficking.  If he is found with 14.9 grams he would be charged for being only in possession.
If the defendant wishes to plead that he was in possession, he would be convicted for being in possession for the purpose of trafficking, as the threshold of 15 grammes was passed by a single gram.
The jeopardy therefore is that once a person pleads guilty S 5 (1) of the ACT kicks in and a Magistrate then fines and sentence to imprisonment, for not less than three years.  But is this a correct interpretation and application of the Act.
I honestly believe that this approach reduces the Magistrates to being mere robots, programmed to sentence without paying any due consideration to sentencing policies that would look at each matter on an individual or case by case basis.
This observation has been made time and time again and most recently in a Caribbean Court of Justice decision, Paul Lashley & John Campayne v Winston Singh [2014] CCJ 11 (AJ) where eminent Jurist Justice JWIT and Justice W. ANDERSON stated among other things.
(1)    It is a well-known principle that young offenders, as far as possible, to be kept out of prison.
(2)    Young offenders should at the start not be given a long custodial sentence lest they should receive a thorough and professional training to become harden criminals in the University of Crime, Georgetown Prisons;
(3)    That the over-crowded Georgetown prison is one of the most dehumanizing places in the Caribbean Region.
(4)    The application of sentencing principle has nothing to do with soft heartedness, mercy, forgiveness or anything of the sort it is merely the expressing of a wrong sentence policy which acknowledges that it is not always in the public interest to lock up offenders indiscriminately (even if they deserve it) but rather to make good citizensof them;
(5)    In the case of young offenders the mindset of the sentencing judge or magistrate must therefore be focused not to sending them to jail but instead to keep them out of it and finding a non-custodialsentences approach may result in the offenders mending his ways, unless of course the crime and the circumstances surrounding it are so serious that the interest of e.g. deterrence clearly out lay the initial approach.
(6)    The starting point in the case of the young offenders without previous conviction must always be to find a correctional approach without incarcerating them.
In addition to these general principles the Magistrate is duty bound to weigh all evidence presented by a convicted defendant in determining a sentence including such factors as being the main income earner of the family, previous history, a probation report and factors such as whether or not any proof has been established to show that the possessor of the narcotics intended to traffic it, by taking steps to do so, such as soliciting sales or being caught red-handed in a transaction.
Moreover, it is now a proven fact as recently admitted by the Surgeon General of the USA, Vivek Murti, that for certain conditions and symptoms marijuana (cannabis) can be helpful.
The Narcotics Drugs and Psychotropic Substances Act 1988, even though it contains a sentencing regime, cannot take away from and dismember a magistrate from applying his/her judicial mind to each case and judging each on you its own merits.
Juxtaposed against sentencing a 21-year-old for cannabis possession for three years in jail,  is the second “chance” given to a 23-year-old on a conviction of robbery under arms with a gun, where violence was involved, injury sustained, property stolen including cash, a phone and a car.
I am in all of support of giving a person a second chance for the armed robbery, but shouldn’t the same apply to a 21-year-old found with 16 ounces of cannabis.  Kudos to Madame Judy Latchman for the bold steps she had taken, what the public need to see however is more consistency.
It is of no comfort to Estrick Simons and his family that he has to spend three years in jail, where hardened criminals are kept, while pleading guilty to a charge that did not wasting judicial time, while second chance is given to a far more serious offender.
I have the utmost respect for the Chief Magistrate Madam Seunarine-Beharry, but find it very difficult to accept that a three-year custodial sentence was the best option available.
As a father of four and an Attorney-at-Law who practises mostly in the criminal area I am exposed to a gamut of matters and find it very difficult to accept some of the sentence imposed on first offenders, young offenders and even older persons.  I suppose I am of similar inclination of Justice WIT and ANDERSON and embrace their exhortation with outstretched arms.
Jerome Khan
Attorney-at-law

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