Today’s announcement by the Supreme Court that sentencing discounts of up to 30% will be strongly considered in applicable cases where the defendant enters an early guilty plea is certainly an interesting solution.
An early and unequivocal guilty plea by a defendant benefits society as whole, and our justice system in particular. Early admissions of guilt expedite a just outcome. Considerable time and cost will be saved.
However, this interesting solution to reduce court backlog is not entirely problem free.
The Court has said that any discount will only be considered for applicable cases where the Department of Public Prosecutions determines a reduced sentence appropriate.
Discounts in sentencing will not be considered for more obvious offences: murder; sexual offences; firearm offences; pornography.
But what other offences are appropriate for a reduced sentence?
Sometimes offences that may be perceived by some as ‘minor’ are nonetheless well deserving of condemnation. Offences by those in a position of trust, or by public officials, come to mind.
Additionally, the risk that an extra discount might convert an immediate custodial sentence into a non-custodial sentence is troubling. Those who merit custodial sentences should get one – they should not escape custody merely because a discount is applied to unclog the system. We cannot be so busy that justice is not done.
If an additional judge is needed to clear the current backlog, then a judge should be appointed – even if only temporarily.
If the problem is lack of revenue, the OBA has for several years been advocating that increased revenue should be generated by implementing a graduated fee structure in the Commercial Court, with court fees linked to the value of the claim. This has long been done in the UK and could easily be done here.
To reiterate, it’s right that this backlog is being publicly recognised. And this solution is a bold step by the Court. Particularly if guilty defendants are persuaded to make early and unequivocal admissions of guilt.
However, we must be extremely careful that any sentencing discount does not excuse a custodial sentence when custody is deserved. It is a timeworn maxim of the courts: justice must not only be done, justice must be seen to be done.
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