Page 35 - Magistrates Conference 2019

The principle of proportionality permeates the sentencing process and must be kept
at the fore in imposing sentence. The principle of totality is an important component
part of the principle of proportionality and its importance is also seen in the context
of the imposition of consecutive sentences. The principle of proportionality also

provides a gateway to mitigate the potential injustice and unfairness of mandatory
minimum sentence as shown in the cases cited, illustrating how the courts have
approached mandatory minimum sentences. All in all, it is a bulwark against the
imposition of wholly disproportionate sentences and as such conduces to fairness in
sentencing. I trust that the topic was dealt with in a proportionate manner and no
inhuman or degrading punishment was occasioned.

27. Before ending, I crave your indulgence to deal briefly with the issues of time spent

on remand and remission. The law with respect to credit for time spent on remand
is well settled. Its implementation or application has not always been consistent
with what the law requires. There is a difference between credit for time spent on
remand and remission of sentence and the two should not be conflated.

28. Remission of sentence is effected by administrative action during the prisoner’s

incarceration and should not be handled by the courts. At paragraph 28 in Romeo
Da Costa Hall v The Queen [2011] CCJ 6 (AJ), the Caribbean Court of Justice (CCJ)
stated that time spent on remand could not be treated as prison years and grossed
up to calendar years, applying the formula that nine months served in prison are
equivalent to one calendar year. Remissions of sentence have to be earned and are
normally effected by administrative action during the prisoner’s incarceration. The
CCJ stated that it did not consider it correct to “gross up” the time spent on remand
to calendar years in order to calculate the credit for time served. Remission of

sentence fall within the purview of the prison administration and should not be
handled by the courts. Remission has to be earned.

29. This is illustrated by Rule 36 of the Prison Rules of Dominica which deals with
remission. As far as is material, rule 36 states:

“Arrangements shall be made by which a prisoner sentenced to
imprisonment whether by one sentence or by consecutive sentences,
for a period exceeding one month may by good conduct and industry
become eligible for discharge when a portion of his sentence, not
exceeding one-third of the whole sentence has yet to run; …”