Sykes: Judges can cut gun sentences

Chief Justice Bryan Sykes has pushed back against claims that Jamaica's tough firearms legislation ties judges' hands, pointing to provisions that allow the Court of Appeal to slash mandatory minimum sentences where they are deemed manifestly excessive and unjust.

Sykes said while a trial judge is generally required to impose the prescribed minimum sentence, the Criminal Justice (Administration) Act provides mechanisms through which the Court of Appeal can reduce the punishment where there are compelling reasons to consider it manifestly excessive and unjust.

The chief justice's comments come amid an ongoing dispute between the Government and sections of the legal profession over the firearms legislation, with defence attorneys arguing that its mandatory sentencing provisions prevent judges from considering the particular circumstances of individual cases.

Addressing the 150th anniversary gala banquet of St Luke's Anglican Church at The Jamaica Pegasus hotel in New Kingston on October 23, Sykes sought to clarify what he described as gaps in the public understanding of the law, including the avenues available to convicted persons seeking a reduction in their sentences.

“It seems to me that, with the imposition of a mandatory minimum, discretion is removed from the trial judge—but not from a judge of the Court of Appeal,” he said.

Under section 42K(1) of the Criminal Justice (Administration) Act, where a trial judge determines that the prescribed minimum would be manifestly excessive and unjust in the circumstances of a particular case, the judge must impose the minimum but issue the convicted person a certificate allowing an application for leave to appeal.

Under section 42K(3), a Court of Appeal judge who agrees that there are compelling reasons why the minimum sentence would be manifestly excessive and unjust may impose a sentence below the statutory minimum.

The appellate judge may also specify the period the offender must serve before becoming eligible for parole, provided it is not less than two-thirds of the reduced sentence.

Sykes also highlighted section 42L, which provides a separate avenue for someone who has already been convicted and sentenced to the prescribed minimum to apply directly to a Court of Appeal judge for a review on the grounds that the sentence is manifestly excessive and unjust, having regard to the circumstances of the case.

“There is, therefore, already a remedy in law for the very circumstances that have caused such stir in the public space,” he said.

The chief justice's intervention comes as the Jamaican Bar Association (JAMBAR) and the Advocates' Association of Jamaica (AAJ) press for changes to the legislation, which came into effect in November 2022.

The associations argue that the mandatory minimum of 15 years for certain firearm offences restricts judicial discretion and can result in disproportionate punishment. They have also raised concerns that the fixed penalties discourage early guilty pleas, potentially pushing more cases to trial and worsening backlogs in the criminal justice system.

In September, attorneys staged a silent protest outside the Supreme Court before withdrawing their services from criminal courts in a show of opposition to the legislation. The associations maintained that they were not seeking weaker measures against gun crime, but greater flexibility to ensure that sentences reflect the circumstances of individual cases.

While welcoming a National Security Council (NSC) proposal to clarify the treatment of imitation firearms and firearm holders whose licences have expired, the lawyers' associations remain concerned about the legislation following another NSC recommendation to increase the mandatory minimum for illegal possession of a firearm from 15 to 20 years. They have opposed that proposal, renewing their call for a provision allowing judges to depart from the minimum in exceptional circumstances.

Sykes also addressed the question of incentives for accused persons to plead guilty, pointing to provisions under the Plea Negotiations and Agreements Act, 2017, which allow for sentences below prescribed minimums in certain circumstances.

Section 18 empowers a trial judge to impose a sentence below the prescribed minimum under a plea agreement. Sections 20 and 22 also allow convicted persons serving sentences to negotiate agreements to assist the prosecution, potentially securing further reductions.

Under those provisions, an offender who has already benefited from a plea agreement may obtain a further reduction, with time already served taken into account.

However, Sykes acknowledged that the effectiveness of plea bargaining depends on the difference between the sentence imposed after trial and the sentence available through an agreement.

“Where that difference narrows, the incentive narrows with it,” he said, describing this as a legitimate policy question for Parliament to consider in reviewing the legislation.

His comments follow concerns raised by AAJ President Tamika Harris, who has called for a straightforward guilty-plea discount without requiring accused persons to provide information to the prosecution or become informants.

Sykes said his intention was not to advocate for or against the firearms legislation, but to encourage a more informed national discussion that distinguishes between the provisions of the law, constitutional considerations and the remedies already available.

“It is therefore incomplete to say, without qualification, that discretion has been removed from the judiciary; nor is it accurate to suggest that there is no remedy,” he said.

editorial@gleanerjm.com