Page 27 - Magistrates Conference 2019

PRINCIPLE OF PROPORTIONALITY IN SENTENCING

1. You have heard it said an “eye for an eye and a tooth for a tooth”. How does that
measure up to proportionality? Would it be offensive to the principle of
proportionality? “No person shall be subjected to torture or to inhuman or

degrading punishment or other such treatment”: Section 7 of the Constitution of
Antigua and Barbuda. Does that provision have anything to do with or have any
impact on proportionality in sentencing?

2. After a crime has been committed and the defendant convicted, what phase of
the process engages the interest of both the defendant and the public? We all

know that it is the sentencing phase, and this is so whether the offence shocks the
collective conscience of the nation or is of lesser ambit in its plenitude.
Evidently, the prisoner has a great interest in the sentence imposed; the public is
also keeping a keen eye.

3. The shock and awe of the crime having dissipated, public interest is again
rekindled and heightened, if not incited and excited by the sentence imposed.
Expressions of support for a seemingly harsh or manifestly excessive sentence

and condemnation of a seemingly lenient one are not unknown, particularly in
the era of talk-radio and the all-pervasive and unbridled social media platforms.
Sometimes one detects some nostalgia for an “eye for an eye”, more so in murder
cases, notwithstanding that that talionic concept was repudiated at the Sermon
on the Mount, long before the death penalty was induced into a judicially
imposed coma and remains in a state of comatose in the independent states of

our jurisdiction, while abolished in the British Overseas territories.

4. Indubitably, sentencing occupies a pivotal role in the criminal justice system. My
task today, is to make a few comments on the principle of “Proportionality in
sentencing”. I will commence by giving a general overview of the principle, and
then address the principle through the context of the constitution; allied to this is
the impact of and the approach to mandatory minimum sentences on the
principle of proportionality. The principle of totality, which is a component part

of the principle of proportionality, will also be examined, so also will be
consecutive sentences.

5. The classical principles of sentencing as identified by Lawton LJ in R v Sargeant
(1974) 60 Cr. App. R. 74 are: retribution, deterrence, prevention and