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22 Jan

CRIMINAL LITIGATION WEEK 17; JUDGMENT AND SENTENCING

WEEK 17

JUDGMENT AND SENTENCING

:: FEATURES OF A VALID JUDGMENT See, 245 CPA, 269 CPC, 275 ACJL, 308 ACJA Adamu v The State: it should:

– Be written, dated, signed or sealed (c) by the court when pronouncing it in open court[1].

– Contain consideration of facts, evidence, point(s) for determination, evaluation decision(s) thereon and reasons for the decision. Adamu v The State.

– Should be given on each count and offender.

– The Judge should convict (each of/) the accused before sentencing. It is desirable (not mandatory) to record reasons for sentencing.

:: EFFECT OF FAILURE TO COMPLY WITH THE PROVISIONS of SS 245 & 269 of the CPA & CPC respectively. Substantial rather than strict compliance with the law.

The effect would depend on the circumstances of the case and a retrial may be ordered where injustice is caused. E.g. where; – (leaving the error) evidence taken as a whole discloses a substantial case against the appellant; – it is not oppressive to retry; – the offence is not merely trivial; – to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it SHEHU V STATE. Section 294 CFRN.

Once judgment has been pronounced, the judge is functus officio-Abiola v FRN. Note also Queen v Timothy Fadina for this topic and check if notorious enough.

:: TIME LIMIT WITHIN WHICH TO DELIVER JUDGMENT: Section 294 CFRN notes that is should be delivered within 90 days from conclusion evidence and final addresses. Parties are to get authenticated copies on the date of delivery

:: CONVICTION:

Modes of Delivery of Judgment. AG Imo State v AG Rivers. 294(2) Of the 1999 Constitution.

The Magistrate/judge who conducts the trial is to deliver the judgment and sentence in open court and in the presence of the accused person(s). Where unavoidably absent, his colleague could deliver/pronounce/read his written and signed judgment/opinion-315 ACJA. AG Federation v ANPP.

Each justice/judge of the Court of Appeal/Supreme Court shall express and deliver his judgment in writing. He may just adopt any of his colleague’s written opinion.

:: ALLOCUTUS: After conviction but before sentencing, court/registrar may ask accused why sentence should not be fully passed on him. He may then plea allocutus to mitigate the punishment-Section 310 ACJA. Maybe that judge should temper justice with mercy, maybe he is the bread winner of his family, just starting out life and has no criminal record, etc.

:: POWER TO CONVICT AN ACCUSED FOR AN OFFENCE WITH WHICH HE/SHE WAS NOT EXPRESSLY CHARGED: is possible where evidence led though insufficient for the conviction of the charged offence can ground conviction for the lesser/other offence e.g. Manslaughter for murder-Nwachukwu v The State.  Because by notice of the present offence, he is deemed to have notice of the lesser offence. Provided the court does not pass a sentence higher than the maximum for the offence.

:: PUNISHMENT: The prescribed punishment connotes the maximum punishment but it is not mandatory to impose it except it is fixed by law[2]. E.g. Capital offences which require death sentence.

:: VARIOUS TYPES OF PUNISHMENTS AND SENTENCING ALTERNATIVES:

It may be to run concurrently (at the same time without starting again for the next one) or Consecutively (i.e. one at a time… add the years together). Court is to pronounce sentence on each count and decide whether they run concurrently or consecutively. The aggregate for consecutive sentence should not exceed the punishment limit of Magistrate court (or twice the limit in North).

The kinds of punishment may include; – Death Sentence; – Imprisonment[3] (with or without hard labour); – Fine (it appears court cannot exceed the limit of fine); – Caning[4] (77 Penal Code) exclusion of women, men over 45 years & those already sentenced to death[5]; – Deportation (41 CFRN, Shugaba v FMIA and ors); – Haddi lashing (for North only and those subject to Muslim Faith and have committed offences against morality viz; adultery, injurious falsehood, drunkenness, and defamation-388 PC, CP (Check Haddi Lashing Order in Council 1960). Check mode of execution in 307 CPC.

It is essentially directed to subjecting convict to disgrace rather than pain). – Binding Over; -Conditional Discharge; -Probation; -Parole (release of prisoner before expiry of a sentence on promise of good behaviour-468 ACJA almost same as binding over and probation)- Police Supervision; -Compensation or Restitution; -Payment of Prosecution costs; -Compensation for vexatious and Frivolous prosecution.

:: PREROGATIVE OF MERCY: the convict or court may appeal or recommend to the president or governor through the AG for prerogative of mercy. The President then consults with the advisory Council on prerogative of mercy. And may grant the offender pardon, reprieve or lesser sentence.

:: EXPLAIN THE PROCEDURE FOR PREROGATIVE OF MERCY:

death sentence must be confirmed by the President/Governor (as the case may be) before execution and the judge shall (as soon as practicable) transfer the CTC of record of proceedings and a copy of certificate of death sentence, written report containing recommendations of the court concerning the accused person sentenced to death… to the AG/Minister/Commissioner that advises the President or Governor on prerogative of mercy.

:: MODE OF PRONOUNCING THE DEATH SENTENCE AND EFFECT OF NON COMPLIANCE: “the sentence of this court upon you is that you be hanged by the neck until you be dead (ACJA adds “or by lethal injection” here and omits the remaining) and may the lord have mercy on your soul[6]”-367 CPL, 402 ACJA. It is desirable to comply with the form but non-compliance would not vitiate sentence provided accused was not confused.

In Armed robbery, death sentence is by firing squad.

:: EXCEPTIONS TO THE DEATH PENALTY. – A pregnant woman shall be sentenced to life imprisonment instead. In ACJA, execution would be suspended until the baby is delivered and weaned. – young persons who have not attained the relevant age (18) at the time of committing the offence-Modupe v The State. He is to be detained at the pleasure of the president or governor. 404 ACJA, ACJA 405 provides that he be subject to life imprisonment instead.

:: PLEA BARGAINING: in 75 & 76 ACJL and 270 ACJA only. See also Section 14 EFCC Act. Originated from US and affirmed in Robert M Brady v United States and revalidated in Romrig (Nig) Nig Ltd v FRN.

It is a written and signed negotiated agreement between a prosecutor and defendant/accused. Categorized into two:

  • Charge Bargain: the accused agrees to plead guilty in exchange for the prosecutor dropping some charges against him.
  • Sentence Bargain: Accused agrees to plead guilty in exchange for the prosecutor proffering a lesser punishment.

The defendant may forfeit some of his properties/monies to the State.

After agreement, prosecutor notifies the court[7]. The court must be satisfied that the defendant voluntarily entered, was warned of his right to remain silent and it aware of the full terms of the agreement before it convicts him based on his plea.

This saves time and cost of both the parties and the cost ultimately unclogging the wheels of justice.

:: RESTORATIVE AND RETRIBUTIVE JUSTICE. To reduce congestion in prisons, rehabilitate prisoners, productivity, prevent simple offenders from mixing up with hardened criminals-Section 460 ACJA. E.g community service. Would not avail convicts of arms, offensive weapon, sexual offences or offence which term exceed three years i.e. felony.

Other points: the court may postpone sentence and release accused on bail-311 ACJA. Magistrate may send accused to a higher court where it opines that the punishment accused should receive is higher than that it can impose.

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[1] Although magistrate in south and ACJA may deliver oral judgment and later reduce it in writing 308ACJA. Or record judgment in form.

[2] It appears the Judge’s hands are tied notwithstanding plea of allocutus. E.g. RFA 2004 prescribes hanging or firing squad for Armed Robbery. Attempted Robbery is life imprisonment. Also cannot go below the minimum sentence.

[3] Where the law prescribes mandatory; no discretion. Where the law says imprisonment only, no fine in lieu. Life imprisonment is equivalent of 20 years.

[4] 308 CPC. The number of strokes should be specified by the law but court cannot impose more than 12 strokes 77 PC. No caning by instalment. Only Mag Grade III cannot administer caning?

[5] caning has been removed from ACJL and ACJA

[6] ACJL says God not the Lord.

[7] Court should not have participated in the negotiation.

Isochukwu

Quite eccentric really

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