New sentencing guidelines offer sliding-scale penalties

New criminal-sentencing guidelines – the first in a promised series – published Monday by Chief Justice Anthony Smellie detail a sliding scale of penalties for burglary and robbery, allowing judges to reduce custody in certain circumstances. 

The new guidelines come after a summertime study of – and recommendations to update – judicial procedures by visiting U.K. Criminal Justice Adviser Claire Wetton. They follow analogous recommendations in England and Wales and elaborate on local 2002 recommendations. 

“They provide a framework for the proper exercise of judicial discretion promoting consistency of approach and enabling attorneys to know more clearly those issues which a court will consider important while assessing the seriousness of an offence,” Chief Justice Smellie said in a Friday statement. 

More guidelines, he said, will be forthcoming “in due course” for all common offenses, whether in Summary Court or Grand Court. 

A two-page index of “sentencing guidelines” lists nine kinds of crime that will ultimately be addressed, including “offenses relating to children,” comprising cruelty and pornography; “Offenses injurious to the public in general,” touching on sexual offenses and bigamy; and “anti-gang provisions.” 

The index also refers to a 37-point list of “aggravating factors” in a crime, and a seven-point list of “mitigating factors.” 

Elsewhere, a 25-page summary of the initiatives details “general principles,” including adjudicating the seriousness of an offense based on a sliding scale of “proportionality,” accounting for an offender’s intentions and the actual harm caused to both individuals and the community. 

The guidelines counsel caution before imprisoning an offender, recommending a “threshold test,” making custody “a punishment for the most serious” offenses, levied only when a crime “was so serious that no other sentence can be justified for the offence.” 

Nonetheless, the recommendations admit that clear answers may prove elusive, subject to judgments regarding degrees of culpability and harm, while balancing both mitigating and aggravating factors. 

“There is a thin dividing line between a case which passes the custody threshold and one which does not,” the guidelines say, allowing that “individual cases vary enormously” while denying any “set formula for deciding.” 

Under “robbery,” a series of colorful graphics distinguishes, first, among street, commercial and home robberies. The 17-page guidance notes propose a variety of penalties – ranging from imprisonment between 12 years and 20 years for a violent commercial robbery employing a “bladed article” or firearm that causes serious harm, to a “community-based sentence” and/or two years’ custody for an unplanned street crime in which the offender played only a small role, used no violence, did little harm and profited minimally. 

The graphics detail 27 conditions under which a robbery might occur, each yielding a separate penalty. An 11-point list of “factors increasing seriousness” – including “high value of goods,” “involvement of others” and the timing and location of the offense – is intended to aid assessment of the crime. 

A similar treatment is given to burglary, separated into “aggravated,” defined by employment of a weapon – largely outside any mitigating circumstances and subject to life imprisonment – and lesser crimes of “burglary in a dwelling” and “burglary in a building other than a dwelling.” 

Penalties for 18 possible conditions pertaining to the latter offenses range from imprisonment between five years and 14 years for burglary in a dwelling using a “bladed weapon” or firearm to inflict violence and a “very significant” use of force, to a “community-based sentence” and/or one-year custody for a burglary in a building other than a dwelling where – like an unplanned street crime – the offender played only a small role, used no violence, did little harm and profited minimally. 

A 12-point list warning of “factors increasing seriousness” reproduces the “robbery” roster, adding “abuse of a position of trust.” 

The guidelines for the first time allow a judge to reduce penalties for an offender who confesses to prior, similar and less-serious offences that remain unsolved. They also enable an offender to gain credit for “a show of contrition … and a willingness to compensate” and for a guilty plea, thereby reducing efforts otherwise required by police, prosecutors and the court to dispose of a crime. 

Finally, they will provide credit for time served if an offender has been in remand while on bail or subject to “significant restrictions on liberty.” 

“It has often been said that sentencing is an art, not a science. Certainly it is often the point in a case where a wide range of factors come together and where there are competing priorities including the need to punish, to deter and to rehabilitate the offender,” Chief Justice Smellie said. 

“I am delighted that we have been able to develop and will be developing more comprehensive guidelines.” 

Justice Charles Quin, who helped develop the new guidelines, said they did not intrude on judicial discretion. 

“They are guidelines and not tramlines,” he told the Cayman Compass. “[They] are merely to assist the judges in deciding the appropriate sentence … The facts of specific cases are never exactly the same, so the guidelines provide assistance in looking at culpability, proportionality, aggravating factors, mitigating factors, reductions for guilty pleas and the totality principle.” 

“The guidelines do not have the force of law and judges are not legally bound by them,” he added, pointing out they are obliged only by legislatively imposed maximum sentences. 

“The guidelines help … judges to administer justice in a manner which will be protective of society whilst being restorative – not only to the offender, but also of the victim,” he said, and while he did not think they would affect courtroom strategies of prosecutors or defense attorneys, he did indicate they “will affect the way a defense attorney advises his or her client as to what likely sentence [or penalty] he is likely to receive should he be found guilty after his trial or should he plead guilty.” 

Chief Justice Anthony Smellie
Chief Justice Anthony Smellie