Entornointeligente.com / Jamaica Gleaner / I would be obliged if you could permit me to address your recent front-page article captioned ‘Ridiculous’ sentence!’ Your article concerned a recently concluded case in the Supreme Court, Gun Court Division, in which Kirk Smith and others, having been found guilty of being in possession of 18 illegal guns and a large quantity of ammunition, were sentenced to five years’ imprisonment.
This case had a related part to it in which another co-accused, Denver Bernard, pleaded guilty and was sentenced to 18 years imprisonment.
In such circumstances, with one accused pleading guilty and receiving 18 years and another not pleading guilty, it going to trial, and receiving five years upon conviction in the same matter, it may be reasonable to raise questions concerning an apparent disparity in the sentences meted out.
This notwithstanding, for anyone to jump to the conclusion that the sentence meted out to Kirk Smith and others is ridiculous is downright irresponsible and unfair, especially where those who are asserting the ridiculous nature of the sentences are strangers to the facts of the particular case at hand. Indeed, those attorneys who by your article are demanding an explanation of the judges’ decision ought to know that commentary on a whole in this regard is best made first upon a familiarisation with the facts of the case.
For the record, I, along with counsel Kemar Robinson, appeared on the record for Kirk Smith in this matter. In handing down the sentence in respect of our client, the learned judge took into consideration a number of factors, which included the following:
1. Mr Smith, without any offer of bail, had already served nigh on five years in custody.
2. A social enquiry report submitted by the probation officers revealed that the antecedents of Mr Smith were excellent. Indeed, the report of the community from which Mr Smith hailed expressed shock and spoke of his hitherto good character. Not surprisingly, Mr Smith did not have any previous convictions against his name.
3. The co-accused, Mr Bernard, who pleaded guilty, essentially claimed full responsibility for the possession and control of the firearms and ammunition in question.
4. The facts of the case revealed essentially that Mr Smith had been contracted by charter to collect some items which he believed at the material time were not firearms and ammunition. However, it would appear that having collected the items and causing them to be placed on board his motor vehicle, the court came to the conclusion that he did, as a finding of fact, know then, based on other circumstances, that the items were illegal. As the facts revealed, his involvement in this enterprise was secondary.
5. Since the commencement of Kirk Smith’s case, there have been developments in the law insofar as the principles of sentencing are concerned. These developments include a new sentencing guidelines in the form of practice directions and recent case law emanating from our Court of Appeal, namely Neisha Clement v Regina , which, among other things, mandates a judge at sentencing to take into account what would ordinarily be the range of sentence in a particular case and also taking into account mitigating factors unique to the person before them for sentencing.
Having regard to the foregoing and applying the applicable law, the learned, judge imposed the sentence that he deemed appropriate. It is important to note that the sentencing of one individual vis-a-vis another will always vary according to the circumstances and the mitigating factors peculiar to the individual for sentencing.
In concluding, if anything is to be learnt from this matter, it is this: There is an urgent need for there to be full media and public coverage of cases of this nature from start to finish, where there is no risk of a compromise to our security or witnesses who would be otherwise prejudiced as well by such coverage.
In addition, on the eve of a new chief justice being sworn in, it may behove him or her to consider the necessity for there to be a judicial public relations officer in light of the fact that the hallowed convention is that judges themselves are not permitted to defend themselves publicly when unwarranted attacks are visited upon them from all or any quarters.
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