Sentencing hearing: An elusive right of the accused

Photo: Telegraph.co.uk

The criminal justice system of Bangladesh neither allows any sentencing hearing nor does it invite any pre-sentencing report on the background of the accused when the trial court pronounces its verdict. In awarding sentence the presiding judge basically relies on the prosecution evidence. There is no sentencing policy in vogue in our penal system. However, general punishments specified in statutes for actions and inactions are liable to be punished without mentioning any gradation of offences. In many instances, minimum and maximum punishments and options of various modes of sentencing are also mentioned whereas in some grave offences mandatory severe punishments like death penalty are also proposed.  In absence of   sentencing policy as well sentencing hearing, judges often award punishment mechanically in exercise of their individual sense of unbridled discretion thereby offer diversity of decisions which lack uniformity.  
Criminal justice system is seen as a social institution concerned with prevention, investigation, prosecution and punishment of offenders and offences. Within the criminal justice system itself, there are several stages and agencies of decision making. Sentencing decisions are influenced by a range of factors, many of them personal to those who make them.  Sentencing requires a thorough analysis of all the circumstances leading to the commission of the offence, the brutality of the acts of the accused, the background of the accused, the vulnerability of the victim etc. Sentencing is a delicate stage at which decisions are taken in a criminal process that begins with decisions such as reporting a crime or arresting a suspect, and goes through to decisions to release a prisoner on parole or to revoke a probation order or to commit the convict to prison or to award him pecuniary liability.  
In our system, after the prosecution evidence is wrapped up, the accused gets an opportunity to provide any explanation whatsoever before the trial court. Such examination made under section 342 of Code of Criminal Procedure (V of 1898) basically exposes the incriminating evidence before him and invites defence evidence, if any. However, this can no way be termed as a pre-sentencing hearing, rather in practice this stage is completed perfunctorily without paying attention to any mitigating circumstances.  In trial the defence side generally avoids to bring notice of extenuating factors in sense that it may obliquely indicate the confession of guilt of the accused person. It is needless to mention here that accused side rather tries wholeheartedly to get acquitted. It is to be noted that there is also no definite plea bargaining stage in vogue in our crippled criminal justice system.
In India, there is a statutory provision for sentence hearing.  According to Section 325(2), Indian Code of Criminal Procedure 1973,   if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. Indian Supreme Court held that the provision is mandatory and failure to give an effective  sentencing hearing to the accused before the sentence is delivered vitiates the sentence which is not curable in law [Santa Singh v State of Punjab (1976) 4 SCC 190]. Observance of pre-sentencing hearing is now part and parcel of any developed criminal justice system including the UK and the USA. In those jurisdictions, 'sentencing decisions are shaped and influenced by a context which runs from decisions to investigate and to prosecute, through decisions on mode of trial, remand and plea, to pre-sentence reports and speeches in mitigation, and  thence to early release and decisions on fine default and breach of community orders'.
It may be mentioned here that in Bangladesh a similar provision was inserted in sections 265K(2) which provided that: 'If the accused is convicted, the Court shall unless it proceeds in accordance with the provisions of section 562, hear the accused on question of sentence, and then pass sentence on him according to law.' [Such provision was inserted by Law Reforms Ordinance (Ordinance XLIX of 1978)]. A similar provision was introduced for trial of warrant cases by Magistrates by the same ordinance [Section 250K(2)]. However, both the sentencing provisions were repealed by Ordinance XXIV of 1982.
As indicated above, present criminal procedure offers no real opportunity for the accused to advance any mitigating plea because sentencing is pronounced forthwith after found him guilty. In debates about prison overcrowding, experts suggested that problem aggravated as a result of our inchoate sentencing system. There is no reason why an offender of Bangladesh should not be provided with sentencing hearing which is mandatory legal procedure in any developed legal system. Obviously, sentencing is an important stage in the administration of criminal justice and it should be given its due place in criminal procedure. An accused is also constitutionally endowed with right to fair trial which can no way be fettered or defeated owing to legal technicalities [Article 35]. Therefore, it is recommended that necessary amendment should be inserted in Code of Criminal Procedure (V of 1898) to provide for sentencing hearing which will ultimately ensure better substantive and procedural justice. In this connection, a sentencing policy leaving a fair amount of judicial discretion may be issued by a competent commission.
There is no denying that prescribing sentences for various offences is a legislative function while pronouncing of sentence is the province of judiciary which requires consistent exercise of discretion (not unfettered one) on the basis of a sentencing policy. The basic notion of such policy requires looking at individualism of the accused and the offence committed vis-à-vis the overall wellbeing of the community at large. While desert (proportionality) principle should dominate the policy, due regard should be had to the juvenile delinquents, mentally disturbed prisoners, females.  The protection of victims also should receive particular attention in the proposed policy. The stratification of offences may be helpful in many petty offences thus for example, offering alternative modes of sentence in lieu of imprisonment. For example, community engagement for limited period may be helpful for many debutant offenders. The stakeholders including presiding judges, lawyers and prison- officials should be well- conversant with the scope, philosophy and development of sentencing laws.  

The writer is  Additional Chief Judicial Magistrate, Kishoregonj.