Court: Judges must explain sentences

Vincent McDonald had his total sentences reduced from three years to 27 months after his case was argued recently by attorney Nicholas Dixey in the Court of Appeal.  

McDonald had pleaded guilty to indecent assault and then perverting the course of justice by paying money so the assault would not be reported to police (Caymanian Compass, 11 April).  

Grounds of appeal included the assertion that no credit was given for McDonald’s guilty pleas or that Justice Karl Harrison’s sentencing remarks left doubt as to whether any credit was given and, if so, how much. 

The court said judges should state clearly what discount is being given for a guilty plea so as to encourage others to plead guilty in appropriate cases and thereby avoid unnecessary waste of time and resources.  

When a defendant pleads guilty, the proper course for a judge to take is to ask himself what the sentence would be if the matter had gone to trial and the verdict was guilty. He should take into account aggravating and mitigating factors and decide on the appropriate sentence for a not guilty plea. Then he should ask himself what discount should be given for the guilty plea, the high court ruled. 

When McDonald was sentenced, the judge was referred to a 2005 case also involving indecent assault and perverting the course of justice. That defendant pleaded not guilty, was found guilty after trial and received consecutive sentences of two years and 12 months. 

Justice Harrison said he found McDonald’s case “quite indistinguishable” in its facts from the facts of that precedent.  

The Court of Appeal said, on that basis, McDonald was entitled to expect the judge would start at two years and 12 months and then go on to determine whether there should be a discount to reflect his guilty plea – and if so, how much. 

Justice Harrison noted two aggravating factors in McDonald’s case: he was on bail for a different charge when these offences were committed; the judge was impressed by a victim impact statement as to how she had been traumatised by the offence. However, the judge did not suggest that either of those factors detracted from his earlier conclusion this case was “quite indistinguishable” from the other, or that the aggravating factors required a higher starting point. 

In passing sentence, Justice Harrison told McDonald, “Your attorney has submitted on your behalf that I should give you credit for your guilty pea, and I bear this in mind.” He then went on to impose the same sentences as in the case with the not guilty plea. 

The Court of Appeal said either a discount should have been given or, if there were to be no discount, reasons needed to be given. “Otherwise, the accused does not know whether or not he is getting credit for his guilty plea; or why – in circumstances where the logic of the judgment points strongly to the conclusion that he is not – he is being denied the credit that he would ordinarily be entitled to expect. This, in our view, was a serious flaw …” 

Mr. Dixey asked for a one-third discount, which would have brought the total sentence down to 24 months. The appeal judges, however, said McDonald had no defence to the perverting justice charge and could have entered a plea to that charge much earlier. In all the circumstances, they said, the appropriate discount was 25 per cent. Because the sentences are running consecutively it was necessary to translate that discount into specific reductions for each sentence. “These matters are not to be addressed by precise mathematical calculation,” they said.  

To achieve the 25 per cent they took seven months off the two year sentence and two months off the 12 month sentence for an overall sentence of 27 months, nine less than imposed by the sentencing judge. 

Hearing the appeal with Justice Chadwick were Justices Ian Forte and Abdulai Conteh.