The alternatives to incarceration (ATI) scheme is not a get-out-of-jail-free card, top members of Bermuda?s judiciary system claim.

Both Supreme Court Chief Justice Richard Ground and Acting Senior Magistrate Carlisle Greaves agreed ? judges have to be able to determine when a defendant is just trying to avoid jail-time, and when they truly are a suitable candidate for the ATI programme.

Mr. Justice Ground and Mr. Greaves were contacted by yesterday after all three Appeals Court Judges ? the highest court in the land ? voiced their frustration with the 2001 Criminal Code amendments during an appeal on Wednesday, saying lawyers are citing the ATIs ?ad nauseam? to keep their clients out of jail.

Crown counsel Juan Wolffe launched that appeal to increase the sentence imposed on Clayton Busby, the civil servant who admitted to stealing almost $160,000 from the Government Employee Health Insurance scheme.

The Appeals Court judges upped Busby?s sentence from three months of incarceration with a 21-month suspended sentence to 12 months of straight jail-time.

?(The amendments) are not a license for non-incarceration,? president of the Court of Appeals Edward Zacca said.

However, when Mr. Justice Ground was asked if he felt the ATIs were being used appropriately or as a ?get-out-of-jail-free card?, he replied: ?A bit of both.

?Defence lawyers will put forward what will get their client a lighter sentence. That is their job and I don?t blame them for it.

?It is up to the judge then to decide if it would help. It?s the judge?s job to see through them and determine if they are just trying to get a shorter sentence. That?s the way the system works.?

ATIs are only to be used in cases which are not so serious as to merit immediate incarceration, he said. ?Because of that, at least in the Supreme Court, it should be quite rare when one falls back on the alternatives to incarceration.?

The Supreme Court deals with the serious offences which require judgement by a jury, as well as offenders who have been pushed up from Magistrates? Court because the magistrate feels they deserve more punishment than a magistrate is able to give, Mr. Justice Ground explained.

?That doesn?t mean it is ruled out in the Supreme Court,? he added. ?That just means it will be rarer.?

Mr. Greaves agreed, saying that in his home country of Barbados, there is a similar system which is only used in Magistrates? Court, not at all in Supreme Court. ?These are serious cases,? he said. ?You can?t mess around in Supreme Court.?

Referring to Section 53 of the amendments, Mr. Justice Ground listed off the objectives of sentencing.

In the Amendment Act, the first four objectives listed refer to protection of the community and deterrence. ?Because they come first it might be assumed they are meant to have prominence,? Mr. Justice Ground said.

Mr. Greaves agreed. ?There is always going to be a balance between the rights of the individual versus the rights of the community,? he said. ?The individual?s rights must not take prominence over those of the community.?

It is not until the fifth objective of sentencing listed in the Criminal Code Amendment Act 2001 that rehabilitation is mentioned. Of all seven purposes of sentencing, rehabilitation is only mentioned once. ?Equal prominence is given to deterrence,? Mr. Justice Ground said ? and judges have to read the rest of the amendment with those principles in mind.

?I myself am very much in support of the ATI in appropriate cases,? he continued. ?It?s really useful for a judge to have a wider range of sentencing options, in particular when dealing with a young person with their whole life before them. ?You might not want to send them off to prison where they are exposed to bad influences. When they come out it is harder to get a job, they may become more likely to re-offend. If one can avoid that, we will do so.?

But, said both Mr. Greaves and Mr. Justice Ground, the ATIs do not mean that jail-time has become a last resort.

The judiciary system cannot afford to give licence to ?supertricksters?, or criminal-minded persons who break the law with impunity, Mr. Greaves said.

?The two of them do not conflict ? alternatives to incarceration do not conflict with the necessity of incarceration.?