AAJ wants judicial discretion restored in firearm sentencing before new court term

The Advocates’ Association of Jamaica (AAJ) is urging the Senate to restore judicial discretion in firearm sentencing, arguing that mandatory minimum penalties are producing unjust outcomes and should be amended before the start of the next court term.
The AAJ wants the proposed amendments addressed before the September start of the new court term.
In a letter dated July 16 to the president and members of the Senate, AAJ President Tamika Harris called for urgent legislative changes to the Firearms (Prohibition, Restriction and Regulation) Act, 2022, to allow judges to depart from mandatory minimum sentences where the interests of justice require, while maintaining severe penalties for the most serious firearm offenders.
While reaffirming the association’s support for tough penalties against violent firearm offenders, Harris said, “Those who use firearms to commit violent crime should receive severe punishment. However, the law must also be fair, proportionate and capable of delivering justice in individual cases.”
And although acknowledging Parliament’s constitutional responsibility to protect the public and prescribe penalties for serious crime, the association stressed that sentencing is also a judicial function that requires an independent assessment of the facts, the offender’s culpability and the interests of justice.
The AAJ said the proposed amendments seek to restore that constitutional balance, not to weaken Jamaica’s response to gun crime.
It argued that mandatory minimum sentences prevent judges from distinguishing between offenders with varying degrees of culpability, including first-time offenders, repeat offenders, persons who merely possess firearms and those who use them to commit violent crimes.
The association said the law should also allow courts to distinguish between principal offenders and peripheral participants, adults who recruit children to commit firearm offences and young first-time offenders with genuine prospects for rehabilitation, as well as offences involving prohibited firearms and imitation firearms where the circumstances demonstrate significantly lower culpability.
“These are fundamentally different situations. Justice requires that they do not automatically attract the same sentence,” the AAJ said.
Fairness undermined
Treating such cases alike, the association said, undermines the principles of fairness and proportionality in sentencing.
The AAJ also called for the repeal or substantial reform of the certificate procedure under Section 42K of the Criminal Justice (Administration) Act, describing the mechanism as unnecessary and ineffective.
Under the current law, a judge who concludes that a mandatory minimum sentence is excessive must first impose that sentence before issuing a certificate enabling the offender to seek relief in the Court of Appeal.
“If the sentencing judge has already determined that the mandatory sentence would be unjust, the law should permit the judge to impose a proportionate sentence immediately,” the association argued.
The AAJ also recommended that the Court of Appeal be given express statutory authority to impose sentences below the mandatory minimum whenever the interests of justice require, regardless of whether a certificate has been issued.
“Justice should not require an unjust sentence to be imposed before a just one can be substituted,” the association added.
It further argued that the Court of Appeal’s ability to impose a proportionate sentence should not depend on whether a trial judge issued a statutory certificate.
“Whenever a firearm sentence is properly before the Court of Appeal, it should have express statutory authority to impose the sentence that the interests of justice require.”
The AAJ also raised concerns that Section 42K appears to apply only to defendants who have been “tried and convicted”, potentially denying equal access to relief for offenders who plead guilty.
The association said this could unintentionally discourage early guilty pleas and encourage contested trials.
It warned that unless the legislation is amended, defence attorneys will continue to pursue constitutional challenges, appeals and other lawful remedies on behalf of their clients.
With the next court term fast approaching, the AAJ said the Senate should act quickly to get the amendments enacted before it begins.
“Parliament has an opportunity to strengthen, not weaken, Jamaica’s firearm legislation by restoring fairness, proportionality and judicial discretion while preserving severe penalties for the most dangerous offenders.”
tanesha.mundle@gleanerjm.com