THE Government has received the Opposition’s support for proposed increases to the mandatory minimum sentence for murder, and time served before parole eligibility, under the Offences Against the Person Act (OAPA), but has been cautioned against tying the hands of the judiciary.
Reacting to the details of the proposal, outlined by Justice Minister Delroy Chuck in the House of Representatives on Tuesday, Opposition Leader Mark Golding said while his party is not opposed to the amendments, the legal profession and the judiciary are averse to the concept of mandatory minimum sentencing because it removes the constitutional ability of the judge to do justice before the particular case.
“I don’t believe in it because I don’t think it is consistent with the role of the judge, which is to impose the sentence that fits the crime. We are in a sense arrogating to Parliament that, by imposing in the law a minimum amount which the judge can’t go below. In many cases that will lead to a just result, but there will be cases where it does not, and those are the cases that bother me,” he said.
However, he acknowledged that when the minimum sentencing for murder was imposed in 2005, the country’s murder rate was significantly less. “I personally wouldn’t object to the idea of raising the minimum for murder, and also the period for parole, because we need to make a statement to the society that if you commit murder you’re facing the most stiff possible penalty,” said Golding. He suggested that a sunset clause be included in the Bill, to allow the opportunity to assess its effectiveness.
Minister Chuck told the House that this was not a solution to crime, but that a clear and unmistakable message must be sent to potential killers that, “having taken a life, the offender cannot and should not be allowed to enjoy the remainder or most of the remainder of his life freely and unburdened”.
He said also that there is an urgent need to align the minimum mandatory penalty in the OAPA for murder, given the recently passed Firearms (Prohibition, Restriction and Regulation) Act, which stipulates a range of 15 to 20 years’ mandatory minimum for varied firearm-related offences. He indicated also that an assessment of the applicable penalties for other serious offences is in the works, to ensure consistency in the penalties.
The proposal is to amend the 2005 OAPA to increase the mandatory minimum sentence of imprisonment from 15 years 45 years; the mandatory minimum sentence to be served before being eligible for parole (for capital murder) from 20 to 50 years; the mandatory minimum sentence before possibility of parole (for non-capital murder) – where the sentence given was life imprisonment – from 15 years to 40 years; and where the sentence given was a term of years, increase the mandatory minimum sentence to be served before being eligible for parole, from 10 years to 35 years.
“The Government is firmly of the view that these proposals achieve the objective of ensuring that the potential sentence matches the seriousness and gravity of the offence whilst remaining within the realm of constitutionality by preserving some degree of discretion in the courts and allowing the possibility of a subsequent reconsideration of the court’s position,” Chuck stated, adding that in deserving cases, the circumstances could be reconsidered to determine the appropriateness of continued prison time.
At the same time, Minister of Legal and Constitutional Affairs Marlene Malahoo Forte shot down Golding’s concerns about hampering the free will of the judiciary: “I just find it unfortunate this pitting of the branches of Government against each other. The judgement of our final court says the separation of powers also works to prevent judges from arrogating to themselves the powers vested in another branch. Not liking a particular approach doesn’t make it wrong in law; it doesn’t make it unconstitutional. We have good guidance from the court on those matters; it’s not just a matter of what we believe.”
She stressed that there is nothing unconstitutional about Parliament’s rightful role to prescribe penalties for offences, whether mandatory minimum, fixed penalty, or otherwise.