Lawyers unhappy with Sentencing Guidelines

by Katherine Renton

Some defence lawyers are expressing concerns in relation to recent sentencing guidelines put together by the Eastern Caribbean Supreme Court (ECSC) for judges to follow when sentencing offenders.

“I have a serious concern and I think I’m going to have to express it to the Chief Justice [Dame Janice Pereira of the ESCS], with these guidelines that they have sent for judges to follow,” veteran counsel Kay Bacchus-Baptiste stated on Friday.

At that time, the lawyer was at the High Court, and engaged in mitigating for one of her clients, Kyron Bowens, who was convicted with another, Kirth Stapleton, for four counts of robbery, one count of wounding with intent, one count of possession of a firearm with intent to commit an offence, and one count of unlawful use of a firearm.

The ECSC has been preparing sentencing guidelines, and has so far released a number of guidelines on different offences, which are aimed at achieving consistency of approach to sentencing. They are published on the ECSC website.

“I do not understand where they’ve come from and I know that in the past they had engaged counsel who was active in the criminal field, to give a feedback before arriving at these decisions. That did not happen with these,” Bacchus-Baptiste continued.

“All of a sudden, these guidelines were just thrown on us -,” she began to say.

However, Justice Brian Cottle stated, “That’s not so Mrs Bacchus-Baptiste. There was wide consultation…”

The counsel replied that she wasn’t aware of these, and that she was involved in the first phase, but somehow dropped out so she doesn’t know.

“Yes well, it was published on the court’s website,” Cottle said, “invited wide comment from members of the public who are practitioners.”

“Did you get that my lord?” the counsel queried.

“People commented, there were people who commented,” the judge stated. He noted that he took the trouble to arrange a seminar inviting members of the criminal bar and the press.

This workshop was held in September 2019.

“I remember attending one, when they were dealing with the first sets of guidelines,” the counsel returned, and said that she wrote submissions in the first phase, “but this phase here I don’t know what happened. I can say I was not involved.”

“…and I’ve spoken to many of the practitioners who are involved in the criminal courts, and they are all befuddled,” she added.

“I agree with you that there was not wide participation by members, especially at the criminal defence Bar but that was not for want of trying,” Cottle explained. He said that they published it, it was in the media, and the guidelines were posted on the court’s website for months, which they have access to, for comment.

“The period for comment was expanded by an additional three to four months when we didn’t get comments at first,” he also said.

Bacchus-Baptiste submitted “maybe persons should have been particularly invited”, who would have had an interest.
Three days later, at the close of the High Court assizes the defence bar was invited to make commentary.

Lawyers Grant Connell and Jomo Thomas were seated at the table.

“My lord, the guidelines for sentencing. I know a lot of work has gone into it, but we will see a paradigm shift as we have seen of late, 21 years, 31 years…but my lord is following the guidelines,” Connell stated.

“But when I look at the four pillars of sentencing, the guidelines seem to be on somewhat of a slight collision course but again you may have to go back to the drawing board, because with those times and no parole etc, it is a bit harsh in my most humble of opinions,” he concluded.

Thomas joined with Connell in dealing with the issue of the sentencing guidelines, “because I am struck.”

“…In all of my years never heard of 40-year sentences, 35-year sentences, but now, based on the guidelines…” he stated.

He mentioned a comment made by Justice Cottle after he had finished delivering the sentence of Anwar Jack last Tuesday. Jack pleaded guilty to the murder of travel agent and Spiritual Baptist bishop, Ian Enoch. Enoch was allegedly lured to Argyle for sexual intercourse, in the middle of which, Jack seized a hidden cutlass and chopped the Bishop multiple times in his head and face. However, Jack claimed that he had been drugged and raped a few years earlier by Enoch, who also apparently manipulated him. He also blamed Enoch for giving him HIV.

Jack was sentenced to 31 years, using the guidance of the new sentencing guidelines for murder.

Cottle contemplated during sentencing that he is mandated to follow the sentencing guidelines, but observed that sometimes when they apply the guidelines, they arrive at a position “that without those guidelines we might not have arrived at”.

Thomas, this Monday, commented “these guidelines seem to come from that war on crime that we had in the United States in the 80s and 90s.“

He informed that for aggravated burglary, the judges may now follow the guidelines to arrive at a starting point of 18 years in prison.

“But in Britain where similar guidelines are, people would be sentenced to 10 years or 11 years and appeal and the court would reduce the sentence,” he said.

“…these guidelines, they are out of whack, we have to bring them into conformity with Vincentian society,” he added.

“Otherwise, you have one, you have two at Belle Isle and we would have to build others, we would have to build them fast…,” he said, seemingly referring to the two locations of Her Majesty’s Prisons.