Non-Custodial Sentencing: Principles, Factors, and Advantages in Magistrate Courts, Slides of Law

Download Non-Custodial Sentencing: Principles, Factors, and Advantages in Magistrate Courts and more Slides Law in PDF only on Docsity! 1 NON-CUSTODIAL SENTENCING IN THE MAGISTRATE COURTS BY SUMI IJEAMAKA ANAGBOGU, ESQ SENIOR MAGISTRATE, ANAMBRA STATE JUDICIARY [ REMARKS I am delighted and honoured to have the privilege to be invited to present a paper on a topic that signifies an emerging paradigm shift in the sentencing pattern and practice of the Courts in Nigeria and in the whole wide world. I appreciate the Honourable, the Chief Justice of Nigeria and Chairman, Board of Governors of the National Judicial Institute, NJI, Honourable Dr. Justice Tanko Muhammad, CFR, for this privilege. I am profoundly grateful to the Administrator of the National Judicial Institute, Honourable Justice R.P.I. Bozimo, OFR. May God continue to bless and keep you as you excellently discharge your huge responsibilities. My special thanks go to Gbenga Omotesho Esq, the Director of Research, the Management Staff and all others who have made this Refresher Course possible. I am immensely thankful to the Honourable,the Chief Judge of Anambra State, Honourable Justice O.M. Anyachebelu for permitting me to attend and present this paper. • Being a paper presented at the Virtual Refresher Course for Magistrates at the National Judicial Institute , Abuja, (27th - 29th April 2021) 2 ABSTRACT It is evident that sentencing as a judicial process is the end result of a criminal trial. It is imperative that the sentence imposed by the Court is fair and just. Non-custodial sentences are sanctions that do not require the convict or offender to serve a “prison term”. Previously, Courts had been predisposed to using only punitive measures as sanctions to deter offenders from criminal actions. Studies have shown that significant deterrence has not been achieved that way. This has resulted in the advocacy for a change of pattern, being a shift in the sentencing disposition and practice of Courts towards a reformatory approach. Chiefly tied to the effectiveness of magistrates in justice delivery is the concept of “access to justice”. Access to justice has been obstructed heavily by congestion of Nigeria’s Correctional Service Centers in an abysmal level. This situation can be ameliorated by Magistrates deploying non-custodial pre-trial Orders and Sentences in their practice. It has been found empirically through authentic statistics that the overcrowding of the Correctional Centers is caused by those who were not sentenced to prison terms but those who were remanded in correctional centers by Courts, awaiting their trial. The same goes for a small number of them who are there for factors such as revocation of their bail conditions inter alia. This paper examines the status of the use of non-custodial sentencing in magistrate courts, principles, factors taken into consideration before sentencing and available options provided by the substantive law. 5 DEFINITIONS Sentence / Sentencing Sentence is defined as “The judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrong doer”.1 Sentencing can be referred to as the: “Post conviction stage of the criminal justice process in which the defendant is brought before the court for imposition of sentence’’2 Sentencing therefore, is the imposition of punishment on the convicted offender by the trial Court. There can be no sentence without conviction, which means that some form of sentence must follow conviction”3. Conviction has been defined in the case of Mohammed v Olawunmi as “an act of a court of competent jurisdiction adjudging a person to be guilty of a punishable offence. It is nonetheless, a conviction even where the ensuing penalty is not imprisonment nor fine but the finding of sureties for good behavior…….”.4 CUSTODIAL SENTENCE / SENTENCING Custodial sentence is defined as “In relation to an offender 21 years or over, a sentence of imprisonment and under that age, detention in a young offender institution etc5. This sort of sentence is deployed if the convicted defendant is 1 Black’s Law Dictionary, 8th Edition, Garner, pg 1393 2 Hon. Justice Olasehinde Kumuyi, Chief Judge, Ondo State, The Principles Of Sentencing, being a paper presented at the Induction Course for Newly Appointed Judges and Kadis, NJI, LAW JOURNAL, (2013) 8 NJIL) Pg 33 . 3 Ibid 4 (1993) 4 NWLR (pt. 287) 254 SC as compiled in Compendium Of Laws Under The Nigerian Legal System 2nd Edition, vol l, Ogwuche, 2008, pg 428. 5 Osborn’s Concise Law Dictionary, 8th Edition, Kutherford & Bone, 1993, pg 104 6 trapped in prison cell, or in any restrictive institution or where a Court in lieu of imprisonment, orders that the offender be detained for a certain number of hours within court premises or at any police station.6 Paradoxically, the detention at the court premises or the police station can be considered a non custodial measure as against imposition of prison term. NON-CUSTODIAL SENTENCE / SENTENCING This term is the exact converse of custodial sentence and has been defined as “A punishment given by a court of law that does not involve a prison term, such as a fine or a restriction order”7.Similarly non-custodial measures can be employed by Courts as a form of Sentence or Order during trials or pre-trial proceedings. A more encompassing definition is thus: “The concept of “non- custodial measures” means any decision made by a competent authority to submit a person suspected of, accused of or sentenced for an offence to certain conditions and obligations that do not include imprisonment, such decision can be made at any stage of the administration of criminal justice”8. It is my humble submission that by the above definition, a decision of non-custodial alternative Orders such as 6 Section 355 ACJL 2010, Anambra State. Also definition of imprisonment by Osborn’s Dictionary, Op.cit. pg 171 7 Collins English Dictionary, Harpercollins, https://www.collins dictionary.com, Accessed 15/3/21 8 UN doc. ST/CSDHA/22, Commentary On The United Nations Standard Minimum Rules For Non-Custodial Measures (The Tokyo Rules). Rule 2.1, cited in Human Rights In Administration Of Justice: A manual On Human Rights For Judges Prosecutors And Lawyers Chapter 9: The Use Of Non-Custodial Measures In The Administration of Justice. Pg 4. Accessed 15/3/21 7 conditional release can be made at any stage during pre- trial and ad hoc summary proceedings in criminal cases. OFFENDER The Tokyo Rules defines offender in the light of its application: That the term “offender” shall be applied to all persons subject to prosecution, trial or the execution of a sentence, at all stages of the administration of criminal justice and these persons are referred to as “offenders” irrespective of whether they are suspected, accused or sentenced. Consequently the term “offender” is used in a generic sense, without detracting from the presumption of innocence9. COMPETENT AUTHORITY This term means any member of the judiciary, a prosecutor or a body that is empowered by law to make decisions about the imposition or implementation of a non-custodial measure10. Examples of non-custodial sentences are fines, canning or corporal punishment, probation, forfeiture, community service, restrictions etc. Non- custodial measures may include Orders such as bail, verbal sanction or caution, and conditional release etc. NOMINAL SENTENCE11 This is a criminal sentence in name only, an exceedingly light sentence12. 9 Ibid 10 Ibid 11 Op.cit. Black’s 12 Op.cit. Black’s Law Dictionary, pg 1394 10 Orders made for the detention of suspects in Correctional Service facilities. There is no gain saying the fact that it is now crucial for magistrates to utilize non-custodial pattern of adjudication when granting interlocutory and ancillary Orders arising from applications made in criminal proceedings such as restrictions, conditional discharge, compensation etc. This disposition can very well achieve decongestion of prisons, faster than any other legal and judicial intervention. THE REMAND PROCEEDINGS COMPLICATIONS Under this procedure, any suspect arrested for an offence which the Magistrate lacks jurisdiction to try, shall be remanded (usually in correctional centers). This procedure is provided for in the ACJA, and the States ACJLs.18 Although the law always provides checks and balances with regard to the proceedings, there still exists, loopholes through which certain elements in the system exploit the proceedings to achieve illegal and undue advantage over other members of the society. The law stipulates that a Magistrate may remand an accused or any person brought under the section for remand, when he has examined the reasons for the arrest and request for remand as exhibited in the Prescribed Report and Request for Remand form filed by the police19. The process of remand is fraught with exigencies and this fact produces a complication when coupled with the Court’s 18 S. 293-299 ACJA, S. 132-137 ACJL Anambra State 19 S, 294 ACJA, Section 132 (2) ACJL, Anambra State 11 bulk of fixed cases, both criminal and civil. The preparedness of the Magistrate sitting alone, to begin, on the spur of the moment to examine the usually bulky Reports, before remand, is intensely hindered. This is not difficult to comprehend, when one considers that in practice, remand procedure is a summary procedure in the magistrate courts. The process is expected to be conducted the very day it is assigned. The police prosecutors are not usually disposed to going back to their police stations with the suspects, accused persons or defendants. The consequence of the above situation is that the Magistrate may not be in a position to discover trumped – up charges or the lack of nexus between the content of the Prescribed Report and the main charge against the suspect, to which the magistrate has no jurisdiction to try. As soon as this happens, the next only possibility will be to remand the suspect for lack of jurisdiction. The second complication is created by pressure from the police prosecutors, often in collaboration with their Divisional Police Officers (DPOs), on the Magistrate to remand in Correctional Service Centers suspects who are detained in their police stations. The difference with the first case, is that here, the Magistrate has jurisdiction to try the case but the police say they have not yet concluded their investigations; they are apprehensive that the suspect will abscond; or that they can no longer guarantee the 12 suspect’s welfare and good health in their custody. These reasons are not exhaustive. Unfortunately, this is usually the position with poor suspects who have no one coming forward to “perfect” their bail conditions or bring food for them at the police station, or those who are at loggerheads with more powerful individuals. Often the real charges against and issues pertaining to these suspects are of a simple nature. Suffice it to say that remand proceedings and other applications which end up in the remand of suspects, exclude the opportunity for Magistrates to pass non-custodial sentence and make orders that are non-custodial in nature in majority of the cases. GENERAL PRINCIPLES APPLICABLE TO NON- CUSTODIAL SENTENCING The object of criminal law is punishment of a convicted offender20 what then is the object of punishment, so employed? There are two essential ways of punishment21 and they are retributive and utilitarian approaches. Retributive: Fair deserts This approach is the crudest form of punishment, involving mere vengeance and infliction of pain by the society, on behalf of itself, the injured individual, on the wickedness of the offender. This is usually done to assuage the public sore feelings or show its revulsion. This approach is usually adopted to have the offender pay for what he has done22. 20 Okonkwo, Naish, Criminal Law in Nigeria, 2nd Edition, Spectrum, 2012, pg. 28. 21 Ibid 22 Ibid 15 imprisonment, the Court cannot impose a fine in lieu of imprisonment28. Note: It is submitted, that in cases where the minimum penalty is a term of imprisonment, the magistrate is not at liberty to impose other forms of non-custodial sentence to the exclusion of the minimum term of penalty. The non- custodial sentence and /or ancillary order can be an addition if appropriate in the circumstances. Penalties Without Option of Fine. Where the law which creates an offence prescribes a penalty without an option of a fine, upon conviction, the Court does not have the discretion to impose a fine in lieu of or as an option to the prescribed penalty. The above position was held in Dada v Board of Customs & Excise29. However, where a law prescribed a penalty and is silent on the option, the Court has discretion to impose a fine in lieu of, or as an option to the penalty prescribed for offenders upon conviction30. If the said penalty that is silent on an option of fine is a term of imprisonment, as is usually the case, then the Court can completely abandon the term of imprisonment and simply impose a sentence of fine only.31 28 Osamor Bob, Criminal Procedure Laws & Litigation Practices 1st Edition, 2004. Pg 475, Also S. 282(5) C.PA, 5,23 (5) C.P.C, S. 316(5) ACJL Lagos, S. 358(5) ACJL Anambra 29 1982(2)NCR 79 as cited by Osamor Ibid 30 Ibid 31 S. 358(1) ACJL Anambra State, S.390(1) CPL Anambra State 16 However, the amount of fine imposed shall not exceed the maximum fine authorized to be imposed by the Magistrate under the Magistrates’ Court Law and jurisdiction. Furthermore, there are limitations as to term of imprisonment imposed on the defendant in the default of payment of the fine. Specific Amount of Fine Where the provision for a specific amount of fine has been made, Court cannot increase the fine.32 Disposition And Other Considrations “Passing of sentence is not caught by precedents. The facts and evidence in each case must be considered critically before imposing the sentence”33 “Sentencing as a whole ought to be a rational process in the sense that a sentence should be passed with a specific principle or principles in mind – retributive, or deterrence, or deterrence and rehabilitation etc”34. It has been advocated thus: “A judge must remember that the purpose of sentencing is to protect the society as a whole from dangerous action of the prisoner, to assist as far as possible the victim of the crime, to reform the offender and prevent other people from being criminal. In applying any of these principles, the judgment must be humane, not imposing a draconian 32 Hon. Justice Olajide Olatawura, Rtd, JSC, Recording of Evidence, Judgment Writing, Execution Of Judgment And Sentencing. Pg 26. 2001. Induction Course for Newly Appointed Judges and Kadis In Nigeria. NJI Handbook. 33 Ibid 34 Okonkwo & Naish op cit pg 38 17 punishment or an inhumane one. Concurrent not consecutive sentences should often be given. If it is a fine, it must not be excessive or disproportionate to the gravity of the offence”35. In deciding the principles of sentencing to adopt, the Court is expected to consider issues that mitigate or aggravate the punishment to be given. These may include plea of guilt, the age of the offender, nature of crime, mental status of offender, prevailing circumstances surrounding the commission and provocation etc36. To this end and to eliminate disparity of sentencing pattern for similar crimes, Practice Directions on Sentencing Guidelines are available in the different state judiciary, particularly Lagos, Anambra and Cross River States. These guidelines are a set of rules made by the various Chief Judges. Magistrates are expected to adhere to them when imposing Sentence and making Orders. The Anambra State Practice Direction37 has as its objective; prevention, restraint, rehabilitation, deterrence, education, retribution and restitution. These principles must be considered by the Courts in determination of the sentence to impose. Furthermore, the Practice Direction enjoins, the Courts to consider the following factors in the process of determining the sentence to impose: 35 Hon. Justice M.B. Belgore, The Judge And Judging, 2002 Induction Course for Newly Appointed Judges And Kadis In Nigeria. NJI, Handbook 36 Ibid. 37 The Anambra State Courts (Sentencing Guidelines for Offences Against The State, Person, Public Order, Morality, Homicide, Property, And Corruption) Practice Direction, 2019. Or. 1. R. 3(a) {i} – (vii) pg 3 – 4. 20 Legal Safeguards The selection of a non-custodial measure shall be based on an assessment of established criteria in respect of both the nature and gravity of the offence and the personality, background of the offender, the purposes of sentencing and the right of the victims.45 Avoidance of Pre-Trial Detention Pre-trial detention shall be used as a means of last resort in criminal proceedings, with due respect for investigation of the alleged offence and the protection of the society and the victim. In case pre-trial detention is made for the investigation and protection of the society, the period should not last longer than necessary.46 Sentencing Disposition Having a wide range of non-custodial measures, the judicial authority, should take into consideration in making its decision, the rehabilitation needs of the offender, the protection of society and the interests of the victim, who should be consulted whenever appropriate.47 The sentencing authorities may dispose of cases in the following ways inter alia: • Verbal sanction, such as admonition, reprimand, and warning. • Conditional discharge • Status penalties • Economic sanctions (fines & day-fines) 45 Rule 3 46 Rule 5 47 Rule 8 21 • Probation, community service etc. Any other mode of non-institutional treatment and some combination of the measures listed therein48 Finally, in making use of any non-custodial sentencing alternative, the Court must work within the purview of the enabling laws and Practice Directions for Sentencing Guidelines. Reason for the adoption of any non-custodial Order or Sentence is required to be stated and recorded by the Courts. NON-CUSTODIAL SENTENCING OPTIONS AVAILABLE TO THE COURTS Fine This is defined as a sum of money ordered by the court to be paid on conviction for an offence49. The substantive law such as Criminal Code, Penal Code, and other procedural laws prescribe as a penalty: fine, imprisonment, imprisonment or fine, or both50 for offences and procedure, respectively. It is advocated that a person convicted of a minor offence rather than being sentenced to a term of imprisonment is given an option of fine. However, in imposing the fine, the Court should take into account the means of the offender and his ability to pay the fine.51 48 Rule 8.2 49 Osborn’s Concise Law Dictionary, 8th Edition, Sweet & Maxwell, 1993. 50 S. 389 CPA, S.74 Penal code, S.318 ACJL, Lagos State, S. 363 ACJL, Anambra State. 51 Honouable Justice Olasehinde Kumuyi, Op. Cit. ,Also S.366 ACJL, Anambra state. 22 In the case of Ogunbayo v State 52, it was held that where the law prescribes imprisonment with an option of a fine, in sentencing procedure, the fine comes first and in default, the imprisonment takes effect and not the other way round. It is submitted that, in imposing fine as a non-custodial sentence or as a pre-trial summary procedure order, a Magistrate can combine the order of fine with one or two or perhaps a few of other existing non-custodial alternatives. However, the combination should not be excessive. Caning or Corporal Punishment Under the CPA, when a person is convicted of an offence for which the penalty is six months imprisonment or more, the court may, having regard to the prevalence of crime in that jurisdiction or the antecedents of the offender, sentence such offender to caning. The sentence may be in addition to or in lieu of imprisonment. The Penal Code provides that any Court in addition to imprisonment may order canning.53 Where the offender is found guilty and sentenced for more than one offence, the aggregate sentence cannot exceed twelve strokes of the cane.54 Female person or a male who has attained the age of forty-five years, is excluded from this sentence.55 “However, it is pertinent to note that corporal punishment of flogging or caning humiliates the individual. It is degrading by reason of the acute physical pain it inflicts and should 52 (2007 )8 NWLR (pt. 1035) 157 SC 53 S. 387 CPA, S.77 Penal Code 54 S. 386 (2) CPA 55 S. 308 (4) CPC, S.385 CPA 25 Community Service This term has been defined to be “A non-custodial sentence which restricts an offender’s liberty”64 and as “An order requiring an offender to do unpaid work”.65 In Nigeria, community service is a post conviction order. It is provided for in ACJA and ACJL Lagos but it is still not provided in the ACJL of some states such as Anambra. Community service order cannot be made for offences such as those involving use of arms, offensive weapon, sexual offences or for an offence which penalty exceeds imprisonment for a term of three years.66 FORFEITURE, SEIZURE, RESTITUTION AND DISPOSAL OF PROPERTY. These are orders of court for disposal of property regarding which an offence has been committed. Properties used for commission of crime or acquired by corrupt individuals, or property used in postal crimes may be ordered to be forfeited. Confiscation of such properties is provided for under the law. Moveable and immovable properties can be restored to the rightful owners by Order of the Court, before, during or at the conclusion of the trial.67 These orders are non-custodial and can be used without resorting to prison term in sentencing offenders for petty crimes. 64 Op. Cit. Osborn’s 65 Ibid 66 S. 460 ACJA 67 S. 263 – 273 CPA, ACJA, Various ACJLs 26 BINDING- OVER / CONDITIONAL DISCHARGE This is an order made by a court in a criminal case, requiring an offender to be of good behavior and to keep the peace. This order is flexible as it can be made against the complainant, defendant alone, witnesses and supporters of both complainant and the defendant, or both parties. This order can be made at pre-trial stage, during trial and after trial has been concluded or even if charge is dismissed.68 Binding-Over Order can be deployed as non-custodial sentence and as a conclusive pre-trial Order. It can be a post conviction order which is passed on any person convicted of an indictable offence, tried summarily in lieu of any punishment to which he is liable, requiring him to enter into recognizance, with or without sureties to keep the peace.69 This is a form of conditional discharge that can end a summary trial without the convicted offender/defendant going to jail. Conditional discharge can be said to mean that the defendant is absolved from punishment if he does not commit any offence during the period set by the court. It is necessary to say that under the law, where conditions for Binding- Over are not complied with, the person bound 68 Ss. 300, 309 C.P.A 69 S. 309 C.P.A, S. 206 ACJL Anambra State 27 over may be committed to Correctional Service Center for a certain term. NOMINAL SENTENCE / ABSOLUTE DISCHARGE Nominal sentence has been defined70 to mean a light sentence or no sentence at all. This can be employed for minor offences where the Court can make an order combining any of the available alternatives, such as fine, Binding- Over or Restitution to an Order of Discharge at the end of the summary trial without giving a sentence of imprisonment. Absolute Discharge means that the defendant / accused or offender, can be released unconditionally without any penalty. It is suitable in cases where the defendant though guilty of the offence, is not thought to deserve any punishment.71 An absolute discharge is the most lenient sentence available to the court. OBJECTIVE OF NON-CUSTODIAL SENTENCE / MEASURES The purpose of non-custodial measures in general is to find effective alternatives to imprisonment for offenders and to enable the authorities to adjust penal sanctions to the needs of the individual offenders in a manner proportionate to the offence committed.72 However conditions and restrictions are attached to them and violation of any of them can lead to imprisonment.73 70 Op. cit. Black’s Law Dictionary 71 Op. cit. Okonkwo, Naish 72 Op. cit. U.N. Doc. The Tokyo Rules 1.I 73 Ibid