New penal code tough on driving under the influence

POSTED: 02/22/12 1:21 PM

Maximum penalty from 2 to 9 years

St. Maarten – Under the new penal code St. Maarten will for the first time in its history become tough on driving under the influence of alcohol. Under current legislation the maximum punishment is 2 years, but when parliament passes the new penal code the maximum will more than triple to 9 years. Criminal defense attorney mr. Geert Hatzmann pointed this article in the new penal code out to members of the Central Committee of parliament yesterday afternoon.

“I am surprised that we have no alcohol-controls, but when you are caught with a little bit of weed you may end up for ten days in a police cell. I am indifferent to people who want to smoke ganja; I have a bigger problem with people who get behind the wheel while they are intoxicated. Why so lenient towards alcohol abuse? This change in the code sends a very clear message,” he said.

Central committee members made an issue of the distinction between the punishment for foreigners and locals. Foreigners serve just one third of prison sentences that are no higher than 5 years, though they have to serve at least 9 months. Locals have to serve two third of such sentences before they are up for a conditional release.

“I wonder if it is right to discriminate based on someone’s origin,” MP Roy Marlin remarked. Later, MP George Pantophlet added: “If you commit a crime, no matter where you are from, you have to be punished equally.”

But Hatzmann told parliamentarians that a prison sentence in St. Maarten is harsher for foreigners than for locals.

“They are often treated as outcasts and they rarely have the opportunity to receive visitors.”

Hatzmann also clarified that people who have been residing on the island for a year, even illegally, are considered locals under the law.

The Central Committee meeting was convened with the Bar Association to give parliamentarians some insight into the most significant changes in the penal code. The association’s dean, mr. Remco Stomp said that there are good elements in the existing legislation and that the new penal code will “keep the good and get rid of the bad.”

Stomp said that the new penal code abolishes the death penalty.

“It is surprising, but that was still there. It is fortunate that it is now being abolished,” he said. The death penalty was already abolished formally in St. Maarten’s Constitution; now it will also disappear from the penal code.

mr. Hatzmann said that the new legislation allows judges to impose community service as an independent punishment and that this is already common practice in the Netherlands. Up to now community service is always part of a conditional prison sentence.

“You don’t always hand down 6-month prison sentences to somebody as young as 15. They are young and they made a mistake. Let them do community service. We have to give our youth second chances.”

mr. Stomp pointed out that there are no youth facilities on the island.

“But we have to keep those youngsters out of Pointe Blanche because that is the best university for crime. Let them do something useful instead and clean up stuff.”

The articles that deal with conditional release promise to be a bone of contention.

“The new articles eliminate the danger of random decisions,” mr. Stomp said.

Under the current law inmates have the option to ask for a conditional release after they have served two third of their sentence. The parole board reviews these requests.

“But the Justice Minister has the authority to overrule the parole board. The proposal is now that everybody will get a one third sentence reduction unless there are strong counter-indications related to someone’s behavior. The minister will no longer have the option to overrule this,” mr. Stomp said.

There are two actual cases under review by Justice Minister Roland Duncan at the moment. He has rejected early release for two foreign cocaine smugglers, but the court has ordered the minister to review this situation and to take a new decision before March 15 about the fate of Frenchman Gerald Collet and Grenadian Joel Mark who have both served two third of their 2009 conviction for cocaine smuggling to 5 years and 6 months. The Bar Association strongly advised Central Committee members to consider this change and to adopt it.

The new penal code also contains some emergency legislation that has to do with the lack of prison cell capacity. The idea is to grant early release to inmates who have served the majority of their sentence, to make space for new convicts.

“Potentially you’re going to see robbers and even murderers back on the street sooner than they deserve to be,” mr. Stomp said.

“That may traumatize victims because they’ll get the idea that criminals are getting off the hook. But the reality is that right now the prosecutor’s office may be forced to decide not to prosecute somebody at all, or that the court is forced to hand down very light sentences because of the capacity situation in the new code this is regulated. The Bar Association is not happy with this, but we do see the necessity.”

mr. Stomp added that, if the parliament accepts this article in the new penal code, it is imperative “to find a solution for the capacity problem on the shortest possible term.”

mr. Hatzmann said that an important change is the introduction of a criminal code for the youth. Under this legislation, the maximum punishment is 24 months.

“Only for really serious cases like rape and murder the maximum will be 4 years. There is one exception that applies to defendants of 16 and 17 years of age. Under certain conditions it is possible to apply adult criminal law.”

Hatzmann said that dealing with young suspects ought to focus on solving problems and not on punishment.

“It is important to give youths that second chance. Even though some of them rob and rape and do all kinds of horrible things. But you cannot lock them up and throw away the key.”

Hatzmann said that the new code for the first time makes a distinction between murder and manslaughter. The maximum for murder will become 30 years or life imprisonment. The maximum for manslaughter is to become 24 years, and 30 years for manslaughter committed in combination with another crime like a robbery.

Hatzmann criticized the plans to impose higher penalties on crimes committed against tourists. “The legislator wants to bring down the maximum sentence for robbery from 24 to 12 years; when there are aggravated circumstances the maximum is 15 years and when a victim dies it is 18 years.”

mr. Hatzmann illustrated his argument with a couple of examples from his courtroom practice. “For a single robbery the court may sentence someone to 5 years. For snatching a chain from someone on the Boardwalk it may go from 18 months up to two years. But when somebody walks into your bedroom in the middle of the night for a burglary, he may be looking at only 6 months. That is not enough, because the invasion of privacy is much more intense at home. When somebody snatches a chain, the victim will at most be somewhat shocked. It is not wise to change all this. The legislator wants to bring down the maximum sentence and 12 years for a single robbery is not even realistic.”

The Bar Association was also invited to comment on the inheritance legislation, but mr. Stomp said that the association fully conforms to earlier statements made about this subject by the Notary Association and that he had nothing to add to the subject.

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