NON CUSTODIAL SENTENCE

INTRODUCTION

Upon conviction the court has wide discretionary powers to impose fine on offender in lieu of imprisonment or coupled with imprisonment. The court may also order compensation for the victim and or restitution of the property to the victim of the offence while these orders are governed by differing statutory provisions and, to some extent by varying principles, they are generally subject (with the exception of restitution orders) to the principle that in imposing them the sertencer should have regard to the means of the offender, in respect of both the individual orders, and their total effect where two or more are combined. None custodial sentences especially fines are quite common and about 90% of the sentence imposed in the criminal courts adopt this made of sentence.

The advantages far outweigh the use of custodial sentence, apart from the corrective advantage, it certainly reduce congestion of the prisons, and is likely to serve greater purpose in the correction and treatment of the offender. In this unit we shall discuss, fines imposable by the higher and lower courts for any offence for which the sentence is not fixed by law, compensation for the victims and contributions to the cost of prosecution. Other non – custodial sentences will be discussed in the unit 4, while custodial sentence is discussed in module 4.

Power to Impose Fine

Fines are by far the commonest and most popular form of penalty, and account for more than 90% in traffic offences, and more than 80% of non – indictable cases. The court has general powers to impose fines on any offender, where a court has authority under any law to impose imprisonment for any offence and has no specific penalty, the court may, in its discretion impose a fine in lieu of imprisonment. In the case of a conviction in the High court, the amount of the fine shall be in the discretion of the court and any term of imprisonment imposed in default of payment of the fine shall not exceed two years.



While, in convictions in the magistrate court (a) the amount of the fine shall also be in the discretion of the court but shall not exceed the maximum fine authorized to be imposed by the magistrate by or under the law, and (b) no term of imprisonment imposed in default of payment of the fine shall exceed the maximum fixed in relation of the amount of the fine by the criminal procedure Act. (See S. 382 CPA). While the High court has unlimited jurisdiction in criminal matters, and may at its discretion impose any amount as fine on the offender, it is guided as to the term of imprisonment in lieu of fine and ought not to impose a term of imprisonment in lieu of fine that exceeds two years. While the magistrate court is limited by its jurisdictions. For instance, the Chief Magistrate 1 in Lagos State may sentence an offender to maximum term of 7 years or N100,000.00 fine. He may therefore not impose a term of imprisonment that exceeds his jurisdiction in lieu of or default of a fine.



We must also bear it in mind that not withstanding any discretion or jurisdiction of the court, the court is prohibited from imposing any fine or term of imprisonment in excess of the maximum term authorized as a punishment for the offence by the written law (see S. 382(4) CPA).

Scale of Imprisonment for Non-Payment of Fines

The law by virtue of S 390 CPA provides that, subject to the provisions of any written law, or which the order is founded, the period of imprisonment whether with or without hard labor, which is imposed by the court in respect of the non-payment of any sum of money adjudged to be paid by an order shall be such period as in the opinion of the court will satisfy the justice of the case, but shall not exceed the maximum fixed by the scale. The scale itself will now seem to be outdated e.g. it provides that where the fine does not exceed N1.00, seven days; and where it does not exceed N400.00, then two years imprisonment. The Lagos State provision in S 323(2) of the criminal Justice Administration law provides that, where the fine does not exceed N5,000.00, then a term of seven days may be imposed, and where it does not exceed N12,000.00 the maximum tern must not exceed two years. In any case the law puts a maximum of two years in lieu of non-payment of a fine. Unless the law under which the conviction has taken place enjoins or allows a longer period.

Mitigating Fines

Even where a fine is clearly in a portion the court may reduce the amount of the fine by way of mitigation. The law is that a court in fixing the amount of any fine to be imposed on an offender, shall take into consideration, amongst other things, the means of the offender so far as they appear or are known to the court, and where a fine is imposed the payment of the court fees and police fees payable in the case up to and including conviction, shall not be taken into consideration in fixing the amount of the fine or be imposed in addition to the fine. (see S 391 CPA).

 Ascertainment of Offenders Means

The commonest reason for reducing fines is the offenders means. The courts are enjoined SS. 391 CPA to take into consideration among other things the means of the person to whom the fine is imposed so far as they appear or are known to the court. “In most cases, the offender will inform the court about his means, that is his income without directly being prompted or asked. He should also inform the court about his dependents, family etc. this will give the sentencer a cheer picture of the true economic status of the offender.

 Relating Fines to Means

Where the financial situation is known, there are few rules that may help the court. An important rule is that fines should be capable of being paid within 12 months (see knight (1980) cri. APP. Rep, (s) 82). Being unemployed does not mean that he cannot be fined.

Payment by Others: The amount should not be fixed on the assumption that some are else even a spouse or friend – will help to pay it. See Baxter (1974) Crim. L.R. 611. However, there is nothing to stop others from paying for the offender.

Proportion of the Fine: The rule is that the fine is not to disproportionate to the offence charged. In the case of Fairbairn (1980) 2 Cr. APP. Rep (s) 315 a fine was imposed that is 10 times the value of the goods stolen. The fine was reduced drastically un appeal because of the disproporturate nature of the sentence.

Enforcement of Fine: In every case where an order is made against any person for the payment of a sum of money and the person is liable to be imprisoned for a certain term unless that sum shall be sooner paid, the court may do or caused to be done certain steps towards ensuring compliance with the order,

The court may immediately, ask him to pay the fine

The court may ask that his pockets be searched and collect any money in his pocket, or even follow him to search his car if he has any, and collect the fine immediately.

The court may issue a warrant of commitment immediately.

The court may allow time for the payment of the said sum.

Direct instalmental payment

Give security, or enter into recognizance with or without sureties for the payment of the fine or any instalment that may be allowed.



Where instalmental payment of fine is allowed, default in the payment of the instalments will render all payable. The law however allows the offender to apply for extension of the time to pay the fine or instalment thereon. The court may upon default therefore issue a warrant for the arrest and imprisonment of the offender wherever he fails to pay the fine, and he will be kept in prison unless he pays the fine or serves the sentence in lieu to payment. In cases, where the offender has made part payment, the imprisonment shall be reduced by a number of days bearing as nearly as possible the same proportion to the total number of days for which such person is committed as the sum so paid towards the fine bears to the amount of the fine for which such person is liable. (ss S. 397 CPA)

 Discuss

The court may issue a distress warrant on any offender who default or refuse to pay the fine imposed on him. The distress warrant allows the goods and properties of the offender to be seized and sold by the sheriff of court. The realized sum of money is then used to pay the fine, where this is not sufficient, the sum is used to pay part thereof and this helps to reduce

the period of imprisonment in proportional measure. The sheriff shall not however, seize, wearing apparels, beddings, kitchen utensils while enforcing the warrant (see S 399 CPA).

CONCLUSION

Modern sentencing legislation, with few exceptions confers extensive description on the sentencing judge both in the range of punitive sentences which may be imposed and in the choice of alternative dispositions. The discretionary use of fines as an alter native to imprisonment is fordable avenue for punishing the offender, compensating the victim and the secreting and at the same time ensuring a reformative impact on the offender. The use of instalmental payment of fines enables the offender to pay at his own convenient time and whenever he is enable or refuse to pay the, then either he is arrested and imprisoned until he is able to raise the money, and released immediately, and where he pays part thereof, his imprison not in lieu of payment, redness the outstanding balance proportionately.

 SUMMARY

We may conveniently say that the use of fines as an alternative to imprisonment is still not only important but also effective in punishing the offender without having him unto the world of crime. The sentencer is allowed to fine the offender in lieu of imprisonment, or with other non – custodial measure in order to where two purposes, to punish and to compensate the victim and so crety. Imposing a fine is subject to certain rules and regulations some of which is that it must be within the jurisdictional power of the sentencer, and need not be the maximum allowed for the offence. The imprisonment in lieu of fine should not exceed two years.