There is a pecking order, it seems, in everyone’s head. A list of crimes in order of seriousness, ranging from the downright trivial to the most heinous, nefarious and downright horrible acts imaginable.
While the list is slightly different for everyone, there is usually some broad common ground. Crimes such as insider trading or corruption are usually seen as technical or ‘victimless’ crimes. At the other end of the scale, kidnapping, murder and rape usually evoke widespread calls for blood.
Perhaps nowhere is public anger more felt that in cases involving vulnerable victims. This was the case when He-Who-Shall-Not-Be-Named, MMA exponent and sexual predator extraordinaire was sentenced to 4 years’ imprisonment recently for having sex with 2 underaged girls and possession of child pornography. There was a public outcry, with vocal critics suggesting that the sentence was inadequate. There was even a petition calling for a harsher sentence.*
But this post isn’t about Joshua Robinson, other than to celebrate the fact that he is off the streets. Invariably, in any criminal sentencing, especially if the crime evokes an emotional response, there will be those who feel that they have been hard-done by the system. That the Court or the AGC could have handled the matter differently. This is concerning, not least because the public confidence in our law and order institutions can be eroded simply because the public does not understand what can admittedly be a very complex and sometimes opaque process.
What principles do the various stakeholders use to arrive at a sentencing position?
What charges do the acts disclose?
The Prosecution looks at the facts as revealed by the investigators to get a picture of what actually went on. The Prosecution then decides, based on the facts, what offence(s), if any, have been committed. This sounds simple enough, but isn’t.
Sometimes, the facts give rise to more than 1 charge. For example, the act of threatening someone with a knife in a public place may constitute criminal intimidation. However, the same facts could arguably give rise to charge for possession of an offensive weapon in a public place. The Prosecution needs to decide which charge is most appropriate in the circumstances.
In certain cases, there are 2 or more charges of varying severity which fit one set of facts. For example, shop-theft is technically “theft in dwelling”, which carries a mandatory sentence of imprisonment. However, on occasion, prosecutors may see fit to prefer the less serious charge of simple theft, which allows for the possibility of a fine.
Just to make this even more complicated, in certain cases, the facts may disclose that a series of acts, in themselves criminal, may form the ingredients of another, more serious charge. For example, a would-be bank robber who carries a knife to the bank, threatens a teller and then robs it, may be guilty of bank robbery, but may also equally have committed criminal intimidation and carried an offensive weapon in public in the process.
The Prosecution therefore has a heavy burden to ensure that the charges fit the crime. Not easy.
How many charges are actually proceeded on?
Assume 2 brothers (let’s call them Bob and Rob) have just robbed a liquor store. After the heist, Bob takes home 3 bottles of rare whisky worth thousands, while Rob takes home 48 cans of cheap beer worth a couple of hundred bucks.
We could, in theory, slap Rob with 48 individual charges of possession of stolen goods, while Bob would get 3 charges. But that would fail to take into account the fact that their criminal acts were essentially the same.
In addition, prosecutors bear in mind the “totality principle”. Put simply, this means that the overall effect of all the charges preferred against an offender cannot have the effect of a “crushing sentence”, or a sentence which, while appropriate for the number of charges, would be completely disproportionate to the acts which are the subject of the charges.
How does the prosecution accomplish this? By proceeding only on some of the charges. The offender is only sentenced for the charges which the prosecution elects to proceed on, while the court “takes into consideration” the other charges for the purpose of sentencing. In essence, in fixing sentence for the charges proceeded with, the court bears in mind the fact that there are other charges, while not actually imposing separate sentences for those other charges.
In other cases, the prosecution elects to proceed on a “watered-down” charge. In the example of shop theft above, the prosecution may elect to proceed on a charge of simple theft as opposed to theft in dwelling on condition that the accused pleads guilty.
There are also very good utilitarian reasons for the above approach. Accused persons are given a significant incentive to plead guilty, thus saving the criminal justice system valuable time and resources. In addition, where cases involve vulnerable witnesses, such as in the case of a sexual offence, obtaining a guilty plea does away with the need to put the victim through the anguish of cross- examination in a full trial.
How do parties know what sort of sentence to ask for in court?
The process of sentencing deserves a post all on its own. However, as a general rule, there will have been previous decisions which form the basis or “benchmark” sentence for future cases. While each case is extremely fact-specific, there are usually generally-applicable benchmarks which are useful as a starting point. These benchmarks are then calibrated upwards or downwards depending on the specific sentencing factors of each case.
There will always be those who say that resorting to benchmarks is the easy way out and that it unnecessarily constrains parties in coming to a fair sentence. However, benchmarks are there because parties who are before the court are entitled to make certain broad assumptions about how they will be treated by the court. Fair and uniform sentences are essential to the effective administration of justice. If you had a friend or relative unfortunate enough to appear before the court, you would want that person’s fate to be decided in a calm, rational manner, and not dependent on which side of the bed the judge woke up on that day.
What does this all mean in relation to recent public anger? Nothing (I did say this wasn’t about him). However, it is only too easy to form an emotional view about the appropriate punishment in a case, and if the sentence does not accord with that view, to conclude that someone has not done his job. This could not be further from the truth. Sentencing is a tremendously complicated but structured process, and parties do not arrive at their respective positions willy-nilly. We might not always agree with the result, but there is more to the process than meets the eye.
*(Note: While the Minister for law has indicated that it might not be appropriate to comment on the matter as the deadline for appeal has not yet expired, ELA disagrees. The case is concluded until and unless an appeal is filed. No appeal has been filed. It now appears that the AGC will not be filing an appeal.)