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EVERYDAY LAW: Sentencing for predial larcenists


Cecil McCarthy

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In my last article on predial larceny I mentioned that I would be looking at the issue of sentencing in a future article.
 Today I will consider one sentencing option that has been pursued. 
One of the complaints voiced at meetings on the subject of predial larceny is that, on occasions, after efforts by the farmers and the police to bring perpetrators to justice, the courts have refused to impose appropriate penalties to send a signal that theft of agricultural produce or livestock is a serious offence.
To remedy this situation, minimum sentences and more severe penalties have been introduced.
For example, in the Trinidad and Tobago Predial Larceny Prevention Act, discussed last week, minimum sentences were introduced for some offences.
An example of a minimum sentence is found in Section 3A(5) of the act. I reproduce sections 3A(2) to (5) of the legislation.
“(2)    Every producer, wholesaler or retailer shall, at the time of the sale or delivery of agricultural produce or livestock of the weight of twenty-five (25) kilograms or more, give a memorandum of sale or delivery to the purchaser or custody of the agricultural produce or livestock setting out:
(a) the registration number, VAT registration number or company number of such producer, wholesaler or retailer;
(b) the date of the sale or delivery;
(c) if the retailer is not a supermarket or grocery, the type and quantity of the agricultural produce or livestock sold or delivered; and
(d) if the agricultural produce or livestock is purchased, the price paid therefore
(3) A person who gives a memorandum of sale or delivery in accordance with subsection (2) shall retain a duplicate of such memorandum of sale or delivery and shall produce the same for inspection upon being required to do so by a constable or an authorised person.
(4) Every wholesaler or retailer who receives a memorandum of sale or delivery in accordance with subsection (2) shall retain a duplicate of such memorandum of sale or delivery and shall produce the same for inspection upon being required to do so by a constable or an authorised person.
(5) A person who fails to comply with the provisions of subsection (2), (3) or (4) is liable on summary conviction to a fine of not less than $5 000 and not more than $20 000 and to imprisonment for four years.”
However, the act does give the magistrate special powers to disregard a minimum penalty “in any case in which, for special reasons which shall be recorded by the magistrate on the face of the proceedings, he considers some lesser penalty appropriate, or in which the person convicted is a child or a young person as defined in the Children Act, but in any such case he may deal with the offence in any manner in which he might have dealt with the same as if the section had not provided for a minimum penalty.”
In Dominica, the minimum penalty for predial larceny is six  months’ imprisonment or EC$2 000.
Minimum sentences are not always viewed favourably because they limit judicial discretion.  And it is argued that judicial discretion is required for fairness.  However, some people argue that it results in more consistent sentencing.
The provisions in the Trinidad legislation which permit the magistrate to disregard a minimum penalty seem to offer a compromise for those who dislike the inflexibility of minimum sentences.
•Cecil McCarthy is a queen’s counsel Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]

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