Vincent Adodo , Esq., LL.M - PowerPoint Presentation

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Vincent Adodo, Esq., LL.MLegal Practitioner AND ConsultantCentre for Socio-Legal Studies, Abuja

JUDGMENT, SENTENCING AND ALTERNATIVES TO IMPRISONMENT

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JUDGMENTThe final decision of the court on a criminal charge- S. 368 ACJACould be either a dismissal of the charge (acquittal of the defendant) or conviction of the defendant.

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CHARACTERISTICS OF A VALID JUDGMENT- S. 308 ACJA , S. 245 CPA.

The Judgment must be in writing but a Magistrate may deliver an oral judgment

vide

S. 308(2) ACJA-

Okoruwa

v. State

[1975] NSCC 266.

Must be delivered in open court, signed and dated before pronouncement-

Unakalamba

v. COP

[1958] 3 FSC 7.

Undated and unsigned Judgment is invalid-

Zuru

v. Chief of Naval Staff

[2004] All FWLR (pt. 237) 522.

Judgment must be pronounced fully in open court-

Queen v. Timothy

Fadina

[1958] 3 FSC 11. Addition of subsequent reasons after pronouncement in open court is improper.

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ELEMENTS OF A VALID JUDGMENT- S. 308 ACJAEvidence of the Witnesses must be evaluated and a finding made on them.

The issues for determination must be stated.

There must be a decision on the

issues.

There must be a reason for the decision and the same must be stated in the judgment at the time of delivery-

Aigbe

v. State

[1976] 9-10 SC.

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JUDGMENT Cont. A Judge may read in open court the judgment written by another Judge who heard the matter but is unavailable to deliver the judgment. It must however be indicated on the record that the judgment being read was written by the Judge who heard the case.-

Edide

v. State

[2009] LPELR 8707.

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SENTENCINGOne of the main purposes of ACJA is to attain restorative rather than retributive justice and to also ensure protection of the larger society.- S. 1 ACJA.

Restorative justice is a way of responding to criminal behavior by balancing the needs of the community, the victims and the offenders. –

Yemi

Akinseye

-George,

Administration of Criminal Justice Act [ACJA] 2015 with Explanatory Notes Cases, P.4

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SENTENCING ContAfter Conviction comes sentencing- Okoruwa v. State

(Supra), the Supreme Court observed that the judgment of the trial judge was bad for sentencing the appellant before convicting him.

Court may conduct a sentencing hearing after

allocutus

- S. 311 ACJA

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SENTENCING- TWO APPROACHESThere are two main approaches to sentencing and these are the Retributive

and

Utilitarian

approaches. See generally Y.

Akinseye

-George, Op.cit. 517.

Retribution is the principle of justice by punishment of the offender, to assuage the crave for public vengeance.

Utilitarian approach seeks to balance the needs of the victim(s), the society and the defendant for justice-

Josiah v. State

[1985] NWLR (pt. 1) 125 at 141.

ACJA leans towards the utilitarian approach.- S. 311(2) 401, 416(1) ACJA.

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SENTENCING OBJECTIVES-S. 311 Principles of reformation and deterrence.

Interest of the victim, convict and

society

(

restorative justice

).

N

on-custodial

sentence

preferable to

imprisonment.

Note: Sentencing objectives applicable only when court has a discretion to exercise.

Court to consider aggravating and mitigating evidence in sentencing each convict even in a joint trial- 311(3

).

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Further Sentencing Objective S. 401(2) The application of the sentencing objectives is subject to the substantive

law creating the offence.

Prevention ---

persuation

Restraint --- isolation

Rehabilitation----reformation

Deterrence------

scape

goatism

Education of the public– distinguishing good from bad by punishing the bad

Retribution; and ---punishment

Restitution ----compensation of the victim

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SENTENCING- Capital offencesPunishment for a capital offence is death. Once a court makes a finding of guilt for a capital offence like murder, the punishment to be imposed is death and there is no room for any mitigation of sentence or discretion on the part of the Judge-

Okpo

v. State

[1972] 2 SC 24.,

Tanko

v. State

[2009] 4 NWLR (pt. 1131) 430.

Allocutus

or sentencing hearing is unnecessary as the Judge lacks discretion on the sentence-

Odunayo

v. State

[2013] LPELR 21459.

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SENTENCING- Death Punishment of death is by hanging on the neck or by lethal injection.- S. 402Sentence of death passed on a pregnant woman shall not be executed until the baby is delivered and weaned. S. 404

Sentence of death shall not be pronounced or recorded for a person under 18 years but in lieu, a sentence of life imprisonment or such other term as court may deem appropriate.- S. 405

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SENTENCING- Child offenderThe Court of Appeal held in the case of Ije v. State

[2013] LPELR 21946 that a sentence of death pronounced on a child offender shall not be executed but rather the offender shall be detained at the pleasure of the Governor.

ACJA has gone further by stipulating that no such death sentence shall be pronounced.

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SENTENCING- Pregnant woman- S. 415Proceedings shall be conducted to determine if the pregnancy is real or otherwise, based on evidence presented by the convict or the prosecutor.

If real, the court shall sentence her to death subject to the S. 404.

If pregnancy not proved, the court shall pronounce a death sentence.

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SENTENCING- Non capital offences- S. 416 Each case to be treated on its own merits

Judge to bear in mind the objectives of sentencing including the objective of reformation

Appellate court may reduce the sentence imposed by the trial court where it is excessive or based on wrong principles, an appellate court may also increase the sentence imposed where it is inadequate

Trial court not to pass maximum sentence on first offender

Period spent by convict in prison when awaiting trial to be taken into consideration and computed in sentencing

.

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SENTENCING- Non Capital OffencesTrial court to inquire into defendant’s antecedents before sentencingCourt to be disposed to adjourning for sentencing in order to have time to consider evidence adduced at sentencing hearing.

Court may not give consecutive sentences for two or more offences committed in the same transaction.

Sentencing to imprisonment shall be applicable to only offenders who deserve to be isolated and to whom other forms of punishment have failed or is likely to fail.

Aggregate term of consecutive sentences ordered by a Magistrate not to exceed four years of the limit of jurisdiction of the adjudicating magistrate.

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SENTENCING ContJudge to consider several factors stated in caselaw in exercising discretion to sentence a convict:

Zacheous

v. The People of Lagos State

[2015] LPELR 24531

(CA): seriousness, prevalence of the offence, whether first offender and

prevaling

attitude of populace to the offence-

Y.

Akinseye

-George, Op.cit 391-392.

Judge to exercise caution in sentencing a convict . Y.

Akinseye

-George, Op.cit 516.

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SENTENCING Cont.Appellate court has power to tinker with the discretion of the trial court on sentencing either by reduction of terms of imprisonment or increment in fines- S. 416(2) ACJA,

Dariye

v. FRN,

Nyame

v. FRN

–test cases under ACJA.

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community services, parole, suspended sentence, rehabilitation payment of compensation and probation. ALTERNATIVES TO IMPRISONMENT

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ALTERNATIVES TO IMPRISONMENT (ATIs)ACJA deemphasises

imprisonment , imprisonment as a form of punishment having been spent and thus a mockery of the system.

ATIs

under ACJA:

Parole

Community Service

Suspended sentence

Rehabilitation

Compensation

Probation

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PAROLEParole is a temporary and conditional release of a prisoner who is adjudge by the appropriate authorities to be of good conduct and is released upon terms and conditions for the purpose of rehabilitation to facilitate his reintegration into the society- <

https://www.justice.gov/uspc/usdoj-uspc-answering-your-questions

>

Helps a prisoner to adjust to normal life after prison

Prevents needless imprisonment of a remorse offender.

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PAROLE UNDER ACJA- S. 468.The Comptroller of Prisons may make recommendation that a prisoner be placed on paroleConditions:

Prisoner must be of good

behaviour

; and

He has served at least one third of his prison term where he is sentenced to 15 years or life imprisonment.

The Court hears the prosecution and the prisoner or LP,

Court may make order that the remaining term of his imprisonment be suspended with or without conditions.

Prisoner shall undergo a rehabilitation

programme

in a

govt

facility or any other facility to enable his integration into society.

CGP shall

shall

make adequate arrangement for the rehabilitation facility.

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COMMUNITY SERVICECommunity service is an alternative form of sentencing in which the judge orders an offender to perform some work on behalf of the community in exchange for a complete or partial reduction of fines or imprisonment.

Court ordered community service may be accompanied with other forms of sentences like suspended sentences, probation, fines, deferred adjudication or pre-trial diversion.

Court ordered Community Service,

http://criminal.findlaw.com/criminal-procedure/court-ordered-community-service.html

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COMMUNITY SERVICE UNDER ACJA- 460(2), 461- 467

A court convicting for an offence has power to sentence the offender to community service in lieu of imprisonment.

Community service is to be in the nature of environmental sanitation, including cutting of grasses, washing drainages, cleaning the environment, washing public places, assisting in the production of agricultural produce: 461(4)

Court to consider need to reduce prison congestion, rehabilitation of prisoners and prevention of simple offenders from mixing up with hardened criminals- 460(3)

Community service is not to exceed six months and convict is to work not more than five hours per day: 462(1).

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COMMUNITY SERVICE Cont.Where a convict defaults in performance of community service, the court may vary the community service order or impose a fine not exceeding one hundred thousand naira or cancel the order and sentence the offender to prison

.

The Court is to follow the procedure in S.464 where the convict commits further offence during the period of community service.

The Court may, where the convict has undergone community service for more than four months and is of good conduct, reduce the period of community service by not more than one third- S. 463(3) ACJA.

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COMMUNITY SERVICE Cont.The Chief Judge of the FCT is to establish a Community Service Centre in every judicial Division. Each CSC is to be headed by a Registrar who shall be responsible for overseeing the execution of community service orders in that division

Recently. 17 traffic offenders convicted by the Special Offences Court in Lagos underwent community service (cleaning the LASTMA secretariat and the streets).

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SUSPENDED SENTENCEA suspended sentence is a judicial delay of a defendant’s duty to start serving a sentence once he or she has been convicted, so that the defendant is able to perform an intervening probationary period. As long as the defendant does not break the law and he meets the condition set by the court for probation, the judge normally eliminates the sentence.

http://www.attorneys.com/parole-and-probation/suspended-sentence

 

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SUSPENDED SENTENCE UNDER ACJA- S. 460Court may order the suspension of a sentence imposed on a convict with or without conditions

The convict does not serve out the sentence as long as he complies with the conditions.

Suspended sentence inapplicable to offences involving the use of arms, offensive weapons and sexual offences

Also inapplicable to offences carrying a term of imprisonment above 3 years- 460(2).

Factors to be considered in ordering suspended sentence- S. 460(4).

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REHABILITATION- S. 467A defendant convicted for an offence triable

summarily may be sentenced and ordered to observe the sentence in a rehabilitation or correctional center established by the Federal Government.

Such a procedure is in lieu of imprisonment.

A court in making such an order is mandated to have regard to the age of the convict, his antecedent as a first offender and other circumstances.

Equally, a court has discretion to direct that a child standing trial should be remanded at a rehabilitation and correctional centre.

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COMPENSATION/RESTITUTION- 454Court may order the defendant to enter into a recognisance

to be of good

behaviour

and to appear within a period not exceeding three years for conviction and sentence.

Court may order the defendant (not convict) or his parent or guardian to pay damages or compensation to the victim of the crime.

Under the ACJA, compensation may be ordered to be paid by a defendant in addition to court ordered conditional release. Compensation paid here does not amount to a conviction

An order for restitution of stolen property or payment of money in connection with the restitution is a conviction.

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PROBATIONProbation is a form of sentencing in which the offender is placed under the supervision of a person known as the probation officer for the purpose of rehabilitating the offender and giving special observance and treatment to the offender to enable him reintegrate into the society and live a crime free life. Probation is a sentence whereby a convict is released from confinement but is still under court supervision; a testing or a trial period. Probation  could be given in lieu of a prison sentence or the convict’s prison term suspended if he consistently demonstrates good

behaviour

.

http://legaldictionary.thefreedictionary.com/probation

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PROBATION- S. 455(1)Any recognisance entered into under S. 454 shall be accompanied with a condition that the defendant be under the supervision of a probation officer of the same sex .

Such probation conditions may contain such additional conditions residence, abstention from intoxicating substance and any matters as the court may deem fit.

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PROBATION Who could be a probation officer? 457(2).

The Chief Judge of the Federal High Court, Federal Capital Territory High Court and the National Industrial Court are empowered to make regulations with respect to the appointment of probation officers, including designation of persons of good character as probation officers. A court making an order referring an offender to probation appoints the probation officer from the list of persons designated under the regulations.

S. 457(2).

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PROBATION- S. 458 Variation and Discharge of Conditions of probation

Upon the application of the probation officer stating good reason for variation or discharge, court may vary the

recognisance

.

Court may discharge the

recognisance

if upon the application of the probation officer, the defendant is shown to be of good

behaviour

.

Court may issue warrant of arrest for the arrest of the defendant where it is satisfied by information on oath that the defendant has failed to comply with the conditions of the

recognisance

.

Court may then later convict and sentence him for original offence

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THANK YOUEND