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.
Sentencing - national proceedings
Determination of sentence - national proceedings
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