Criminal Process Part 6: Upon conviction

This is the last stage of this 6-part series. If an accused is found guilty after trial or pleads guilty before trial, this is where the sentence is decided by the judge. On the other hand, if the accused is found to be “not guilty” after trial, then the matter ends there, unless there is an appeal by the prosecution.

 

Sentencing

If an accused pleaded guilty and agreed to the Statement of Facts (“SOF”), or if a guilty verdict is passed during trial, the case then goes on to the sentencing process.

A sentence is the punishment imposed on the accused who is convicted of an offence. The maximum sentence for each offence can be found in the charge sheet. There are various types of punishment which the court can mete out as follows:

  • Capital punishment
  • Fine
  • Imprisonment
  • Caning
  • Probation
  • Corrective training
  • Reformative training
  • Community-based sentences

 

Sentencing principles

The sentencing process is founded upon the principles of deterrence, retributivism, rehabilitation and incapacitation.

Under deterrence, the punishment is used as an instrument to deter the general population from committing an offence. Additionally, when an offender is punished, it seeks to deter him/her from committing offences again in the future.

Retributivism is a theory used to justify the punishment. Under this view, it is intrinsically right to punish a person for the offences he/she has committed as that person deserves such punishment.

Rehabilitation takes on a more paternalistic approach towards punishment. Community-based sentences are closely linked to this principle. It seeks to reform offenders into law-abiding people.

Incapacitation refers to imprisonment of the offenders so that he/she will not be able to cause further harm.

 

Mitigating and Aggravating factors

In the sentencing process, the Prosecution and the Defence will assist the Court in deciding the appropriate punishment for the offender. To do this, the Prosecution will make its submission to the Court. The Prosecution will give proposals on the sentence and refer to past similar cases and the sentences imposed in those cases.

The Prosecution may present the victim impact statement. Victim impact statements are statements relating to any harm suffered by any person as a direct result of an offence, which includes physical bodily harm or psychological or psychiatric harm.

The Prosecution may also inform the Court of any aggravating factors relating to the commission of the crime. For example, past criminal records of similar offences may indicate recalcitrance. Lack of remorse (e.g. fleeing the scene of accident in traffic offence cases or being uncooperative with police investigations) may also impact the punishment meted out.

On the other hand, the Defence may submit a mitigation plea to the Judge. The mitigation plea aims to obtain leniency from the Judge by conveying the relevant mitigating factors. Some common mitigating factors include young age of the offender, showing of remorse, having a clean criminal record and cooperation with the police.

Past cases or precedents will be presented to the Judge to persuade the Court that the Court should decide in a certain way.

The Court will consider the sentencing precedents, frameworks, and mitigating and aggravating factors before arriving at a sentence. If a sentence of imprisonment has been given, the sentence will have to be served immediately. In certain circumstances, the offender may request for the commencement of the sentence to be postponed to a later date. This could be to allow the offender to take care of work or family matters. Whether the offender can commence later will be up to the discretion of the judge.

 

Appeal

An appeal is filed by a dissatisfied party against the decision made by the Judge, to have the decision set aside, changed or reversed. In a criminal context, the accused may appeal against the conviction or the sentence, or both. The appeal has to be filed within 14 days of receiving the judgment.

Once the appeal has been filed, the Grounds of Decision and Notes of Evidence will be prepared by the court and delivered to the accused. The Grounds of Decision is a written document containing the reasons for the Judge’s decision. The accused should consider carefully whether or not to pursue the appeal. He/she may wish to seek the help of a lawyer to evaluate the merits of the appeal before continuing to pursue the appeal. If the accused decides to pursue the appeal, a Petition of Appeal has to be filed within 14 days of receiving the Grounds of Evidence and Notes of Evidence.

It should be noted that the outcome of the appeal may not always be favourable to the accused. The Appellate Court may confirm, reverse or change the decision of the trial Court. There have also been cases where appeal by the accused has led to a heavier punishment imposed by the Appellate Court. Thus, it is important to seek the help of a skilful lawyer to advise and represent the accused.

 

 

Please note that this article does not constitute express or implied legal advice, whether in whole or in part. If you require legal advice, please contact me at walter@silvesterlegal.com.