CHAPTER TWO
Offences

PART I
OFFENCES AGAINST THE PERSON

Sub-Part A – Homicide

Murder and Manslaughter

Capitalmurder
86. (1) Subject to subsection (2), murder committed in any of the following circumstances is capital murder —

(a) the murder of —
(i) a member of the Police Force acting in the execution of his or her duties or a person assisting a member so acting;
(ii) a correctional officer acting in the execution of his or her duties;
(iii) a judicial officer acting in the execution of his or her duties;
(iv) any member of the Police Force, correctional officer or judicial officer for any reason directly attributable to the nature of his or her occupation;

(b) any person for any reason directly attributable to —
(i) the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings; or
(ii) the service or past service of that person as a juror in any criminal trial;

(c) the murder of a justice of the peace acting in execution of his or her judicial functions;

(d) any murder committed by a person in the course or furtherance of —
(i) robbery;
(ii) burglary or housebreaking;
(iii) arson;
(iv) any sexual offence;
(v) any hate crime;
(vi) any drug trafficking offence or other drug related offence;

(e) any murder committed pursuant to an arrangement whereby money or anything of value —
(i) passes or is intended to pass from one person to another or to a third party at the request or direction of that other person; or
(ii) is promised by one person to another or to a third person at the request or direction of that other person;
as consideration for that other person causing or assisting in causing the death of any person or counselling or procuring any person to do any act causing or assisting in causing death of another person;

(f) any murder committed by a person in the course or furtherance of an act of terrorism, that is to say an act involving the use of violence by that person which, by reason of its nature and extent, is calculated to create a state of fear in the public or any sector of the public.

(2) Where in the case of any murder referred to in subsection (1), (other than a murder referred to in paragraph (e)), two or more persons commit that murder, it shall be capital murder in the case of any of them who by his or her own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered, or who himself or herself used violence on that person in the course or furtherance of an attack on that person; but the murder shall not be capital murder in the case of any other of the persons committing it.

(3) Where it is alleged that a person accused of murder is guilty of capital murder, the offence shall be charged as capital murder in the indictment.

(4) A person convicted of capital murder under subsection (1), may on conviction on indictment, be sentenced to death.

(5) Notwithstanding subsection (4) and subject to subsection (7), a person convicted of capital murder shall be given an opportunity by the Court, to plead in mitigation of sentence and the Court shall in such case take into account the following factors
(a) the gravity and nature of the offence;
(b) the character and record of the offender;
(c) any subjective factors which may have influenced the conduct of the offender;
(d) the design and manner of execution of the offence; and
(e) the possibility of reform and social re-adaptation of the offender.

(6) In addition to the factors specified in subsection (5), the Court may, if it deems it necessary, have recourse to any reports touching on the offender and the offence.

(7) At the hearing for sentencing, the family of the victim shall be given an opportunity to address the Court on any matter connected with the offence.

(8) For purposes of subsection (7), the Court shall in each case, make a determination as to who constitutes the “family of the victim”, taking into account the circumstances of the case.

(9) Notwithstanding subsection (4) and subject Joint commission to subsection (10) a sentence of death shall not be pronounced on or recorded against a person convicted of capital murder if it appears to the Court that at the time the offence was committed he or she was under the age of eighteen years.

(10) The Court shall sentence, a person referred to in subsection (9) to a period of imprisonment for a term deemed appropriate by the Court.

(11) On an indictment charging a person with capital murder, he or she may be found not guilty of capital murder but guilty of non-capital murder if the circumstances of the case justify such conviction.

(12) Capital murder shall be treated as a distinct offence from non-capital murder for the purpose of any appeal against conviction; otherwise capital murder shall not be treated as a distinct offence from non-capital murder for any other purpose.

(13) Where on an appeal against conviction of capital murder the Court substitutes a verdict of guilty of non-capital murder for the verdict of guilty of capital murder, the Court shall nevertheless determine whether the sentence of death is warranted under subsection (4) and shall confirm the sentence if it is found to be so warranted.

CHAPTER THREE
Procedure

PART VI
INDICTABLE TRIALS

SUB-PART C
Verdicts and Related Matters

Sentence and Proceedings Subsequent

Sentence by any Judge
1004. If sentence is not passed immediately after the accused is convicted, any other Judge of the Court may at any subsequent sitting of the Court, at which the offender is present, pass sentence upon him or her.


Evidence as to proper sentence
1005. The Judge may, before passing sentence, receive such evidence he or she thinks fit, in order to inform himself or herself as to the appropriate sentence to be passed.


Sentence on verdict of guilty on several counts
1006. If one sentence is passed upon any verdict of guilty on more counts than one, the sentence shall be good if any one count would have justified the sentence.


Sentence of death not to be passed on pregnant women
1007.— (1) Where any woman convicted of an offence punishable with death alleges or it appears to the Court that she is pregnant the Court shall, before sentence is passed upon her, direct any two or more registered medical practitioners to be sworn to examine the woman in some private place either together or separately and report to the Court whether or not the woman is pregnant.

(2) If upon the report of any of the medical practitioners the Court is satisfied that the woman is pregnant, she shall be sentenced to imprisonment for life instead of death.

(3) Any woman who is under sentence of death may move the Court in arrest of execution on the ground that she is pregnant and the Court shall direct an inquiry and report as in this section provided and shall, if it finds that the woman is pregnant, arrest execution until she is delivered of the child or until it is no longer possible in the course of nature that she should be so delivered, and the Court shall direct the finding to be recorded and shall immediately report the finding to the Governor-General.


No jury de ventre inspiciendo
1008. No jury de ventre inspiciendo shall be empanelled or sworn.


Error not allowed
1009. No proceedings in error shall be taken upon any trial under the provisions of this Code.


Reserve of question of law
1010. The practice and procedure in respect of any question of law reserved upon the trial of any person for an indictable offence shall be as provided in the Court of Appeal Rules.


Warrant for execution of sentence
1011. Every warrant for the execution of any sentence may be issued, either by the Judge who passed the sentence, or by any other Judge of the High Court.

CHAPTER FOUR
Punishment, Pardon, Remission, Rewards and Miscellaneous Matters

PART I
General Provisions

SUB-PART A – PUNISHMENT IN GENERAL

Increased Punishments for Repetition of Crime

Liability to increased punishment on subsequent conviction
1093.— (1) Where a person, having a previous conviction for a crime, is again convicted of a crime, he or she shall be liable to increased punishment in the manner provided in Part I of the Table in the Sixth Schedule to this Code.

(2) Unless otherwise provided in this Code or any other enactment —
(a) a previous conviction shall not be admitted in evidence against a person except within the period specified in Part II of the Table after the expiration or execution of the sentence passed on that person upon the previous conviction, or of any sentence to which that sentence has been commuted;
(b) nothing in this section, or in the Table, shall exempt a person from any liability to which he or she may be subject under this Code to death or to any greater or other punishment than the punishment prescribed in the Table, and any other different punishment to which he or she is liable under this Code may be inflicted in addition to the punishments prescribed in the Table;
(c) nothing in this section, or in the Table, shall apply to libel, or to any act which is a crime on the ground of negligence, or to any offence punishable on first conviction by fine only.

(3) A conviction of a person for a crime committed by him or her before attaining the age of eighteen years shall not be admitted in evidence against him or her after he or she has attained the age of twenty-one years.

CHAPTER FOUR
Punishment, Pardon, Remission, Rewards and Miscellaneous Matters

PART I
General Provisions

SUB-PART A – PUNISHMENT IN GENERAL

Punishment in cases not Specified

Indictable offence
1094.— (1) Where an offence is declared by this Code or by any other enactment to be an indictable offence, and no punishment for the offence is specified, a person convicted of the offence shall be liable to imprisonment for five years.

(2) Where an offence may be tried under this Code or by any other enactment, either as an indictable offence or a summary offence and no punishment for the offence is specified, a person convicted of the offence summarily shall be liable to imprisonment for three years.


Summary offence
1095. Where by this Code or any other enactment any offence is punishable on summary conviction and no punishment is specified there for the punishment shall be a fine not exceeding one thousand dollars.


SUB-PART B – PRINCIPLES OF JUDICIAL SENTENCING


Restrictions on the imposition of custodial sentences
1096.— (1) This section applies where a person is convicted of an offence punishable with a custodial sentence other than one fixed by law.

(2) Subject to subsection (3), the Court shall not pass a custodial sentence on the offender unless it is of opinion —
(a) that the offence, or the combination of the offence and one other offence associated with the offence, was so serious that only such a sentence can be justified for the offence; or
(b) where the offence is of a violent or sexual nature, that only such a sentence would be adequate to protect the public from serious harm from the offender.

(3) Nothing in subsection (2) prevents the Court from passing a custodial sentence on an offender if the offender refuses to consent to a community sentence which is proposed by the Court and requires that consent.

(4) Where a Court passes a custodial sentence it is the Court’s duty —
(a) in a case not falling within subsection (3), to state in open Court that it is of the opinion that either or both of paragraphs (a) and (b) of subsection (2) apply and why it is of that opinion; and
(b) in any case, to explain to the offender in open Court and in ordinary language why it is passing a custodial sentence on the offender.

(5) A Court shall cause a reason stated by it under subsection (4) to be specified in the warrant of commitment and to be entered in the record of the Court.


Length of custodial sentences
1097.— (1) This section applies where a Court passes a custodial sentence.

(2) The custodial sentence shall be —
(a) for any term (not exceeding the permitted maximum) as in the opinion of the Court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with the offence; or
(b) where the offence is of a violent or sexual nature, for such longer term (not exceeding that maximum) as in the opinion of the Court is necessary to protect the pubic from serious harm from the offender.

(3) Where the Court passes a custodial sentence for a term longer than is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it, the Court shall —
(a) state in open Court that it is of opinion that subsection (2) (b) applies and why it is of that opinion; and
(b) explain to the offender in open Court and in ordinary language why the sentence is for such a term.

(4) A custodial sentence for an indeterminate period shall be regarded for the purposes of subsections (2) and (3) as a custodial sentence for a term longer than any actual term.


Procedural requirements for custodial sentences
1098.— (1) Subject to subsection (2), a Court shall obtain and consider a pre-sentence report before forming any such opinion as is mentioned in subsection (2) of either section 1096 or section 1097.

(2) Where the offence or any other offence associated with it is triable only on indictment, subsection (1) does not apply if, in the circumstances of the case, the Court is of the opinion that it is unnecessary to obtain a pre-sentence report.

(3) In forming any such opinion as is mentioned in subsection (2) of either section 1096 or section 1097 a Court —
(a) shall take into account all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to the Court; and
(b) in the case of any such opinion as is mentioned in paragraph (b) of that subsection, may take into account any information about the offender which is before the Court.

(4) A custodial sentence which is passed in a case to which subsection (1) applies is not invalidated by the failure of the Court passing sentence to comply with that subsection but any Court, on an appeal against such a sentence —
(a) shall obtain a pre-sentence report if none was obtained by the Court passing sentence; and
(b) shall consider any such report obtained by it or by the Court passing sentence.

(5) A “pre-sentence report” in this Sub-Part means a report in writing which is made by a probation officer with a view to assisting the Court in determining the most suitable method of dealing with an offender.


Additional requirements in the case of mentally disordered offenders
1099.— (1) Subject to subsection (2), in any case where section 1098 applies and where the offender is or appears to be mentally disordered, the Court shall obtain and consider a medical report before passing a custodial sentence other than one fixed by law.

(2) Subsection (1) does not apply if, in the circumstances of the case, the Court is of opinion that it is unnecessary to obtain a medical report.

(3) Before passing a custodial sentence other than one fixed by law on an offender who is or appears to be mentally disordered, a Court shall consider —
(a) any information before it which relates to the offender’s mental condition (whether given in a medical report, a pre-sentence report or otherwise); and
(b) the likely effect of such a sentence on that condition and on any treatment which may be available for it.

(4) A custodial sentence which is passed in a case to which sub¬section (1) applies is not invalidated by the failure of the Court passing sentence to comply with that subsection, but any Court, on an appeal against such a sentence —
(a) shall obtain a medical report if none was obtained by the Court; and
(b) shall consider any such report obtained by it or by the Court passing sentence.

(5) In this section -—
“medical report” means a report as to an offender’s mental condition made or submitted orally or in writing by a qualified registered medical practitioner;
“qualified” in relation to a registered medical practitioner, means appearing to the Court to have special knowledge and experience of cases of mental disorder.

(6) Nothing in this section prejudices the generality of section 1098.


Saving for mitigation and mentally disordered offenders
1100— (1) Nothing in this Code prevents a Court from mitigating an offender’s sentence by taking into account any such matters as, in the opinion of the Court, are relevant in mitigation.

(2) Without prejudice to the generality of subsection (1), nothing in this Code prevents a Court -—
(a) from mitigating any penalty included in an offender’s sentence by taking into account any other penalty included in that sen¬tence; or
(b) in the case of an offender who is convicted of more than one offence, from mitigating the offender’s sentence by applying any rule of law as to the totality of sentences.

(3) Nothing in this Code —
(a) requires a Court to pass a custodial sentence, or any particular custodial sentence, on a mentally disordered offender; or
(b) restricts any power which enables a Court to deal with a men¬tally disordered offender in the manner the Court considers to be most appropriate in all the circumstances.


Effect of previous convictions etc.
1101.— (1) An offence shall not be regarded as more serious for the purposes of any provision of this Code by reason of any previous convictions of the offender or any failure on the part of the offender to respond to previous sentences.

(2) Where any aggravating factors of an offence are disclosed by the circumstances of other offences committed by the offender, nothing in this Code prevents the Court from taking those factors into account for the purpose of forming an opinion as to the seriousness of the offence.


General judicial guidelines
1102.— (1) Without prejudice to sections 1096 to 1101, a Court in sentencing an offender convicted by or before the Court shall observe the general guidelines set forth in subsection (2).

(2) The guidelines referred to in subsection (1) are as follows —
(a) the rehabilitation of the offender is one of the aims of sentencing;
(b) the gravity of a punishment must be commensurate with the gravity of the offence;
(c) an offender shall only not be sentenced for an offence of which the offender has been convicted or for another offence or other offences which the offender has asked the Court to take into consideration in passing sentence;
(d) where a fine is imposed, the Court in fixing the amount of the fine must take into account, among other relevant considerations, the means of the offender so far as these are known to the Court, regardless of whether this will increase or reduce the amount of the fine.


SUB-PART C – SENTENCING AND ORDERS IN GENERAL


Sentencing Guidelines
1103.— (1) Subject to section 1104 the Chief Justice may, from time to time, after consultation with the Attorney-General, the Director of Public Prosecutions and any other relevant person or body, issue to the District Courts, Sentencing Guidelines with respect to such offences as he or she may consider appropriate, and these Guidelines shall be complied with by every Magistrate.

(2) The guidelines may be issued by way of regulations.

(3) Where a Magistrate does not comply with any such Guidelines when passing a sentence in respect of any offence to which the Guide-lines relate he or she shall state in writing and in open Court why the Guidelines were not followed in the particular case.


Punishment may not be less than minimum
1104. Where a mandatory minimum punishment is prescribed in respect of any offence by this Code or any other enactment, a Court may not sentence an offender to any less punishment than that prescribed.


Pronouncement of sentence
1105. Every sentence, unless otherwise provided, shall be pronounced in open Court in the presence of the offender, but it is not necessary that the sentence is written out or signed in his or her presence.


Modification of sentence
1106.— (1) The Court which sentenced the offender, may at any time before imprisonment require the attendance of the offender, unless sentence was pronounced in his or her absence, and to alter or modify the sentence, but shall not impose a higher sentence than that originally pronounced.

(2) The signature of the Magistrate, or proper officer of the Court to any sentence is sufficient to authenticate the sentence.


Running of sentences
1107. Where a person after conviction for a crime is convicted of another crime, either before sentence is passed on him or her for the first conviction or before the expiration of that sentence, any sentence (other than sentence of death) which is passed on him or her for the second conviction, shall be executed after the expiration of the first sentence, unless the Court directs that it is executed in lieu of the first sentence or of any part of the first sentence.

Article 76
Sentencing
1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence.
2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence.
3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing.
4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.

Article 77
Applicable penalties
1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
2. In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.