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• Possible Solutions
• Sentencing Practices-Options For Reform
• Enactment Of Sentencing Guidelines
• Presumptive Sentencing Guidelines
• Voluntary Sentencing Guidelines
• The Adoption Of Legislative Guidelines Which Assist In Determining The Choice And Length Of The Punishment.
• The Enactment Of Principles Of Sentencing Including Guidelines Which Determine The Imposition Of Imprisonment.
• The Enactment Of Presumptive Sentencing Guidelines To Guide The Imposition Of Custodial And Non-Custodial Sentences.
• The Enactment Of Mandatory Minimum Sentences Combined With A Discretion To Depart From The Sentences Under Certain Conditions.

CHAPTER 4

POSSIBLE SOLUTIONS

SENTENCING PRACTICES - OPTIONS FOR REFORM

ENACTMENT OF SENTENCING GUIDELINES

PRESUMPTIVE SENTENCING GUIDELINES

4.1 One option is to set up a sentencing commission to develop sentencing guidelines in respect of certain offences. In this regard the best example is the Minnesota sentencing guidelines where the enabling statute directed the sentencing commission to develop guidelines which were to specify presumptively correct prison commitment and prison duration rules. In such a system specific principles are used as determinants of the presumptive correct sentence, for example the severity of the offence and the accused’s criminal record. The court is allowed to depart from the presumptive correct sentence if special circumstances exist. The court is, however, required to record such circumstances and in such cases the sentence is subject to review or appeal. In addition to the guidelines legislation can also provide for the factors to be considered in imposing a sentence, see for example the provisions of the Sentencing Reform Act in the USA where the following factors are inter alia listed -

• the nature and seriousness of the offence;
• the need for the sentence -

(a) to reflect the seriousness of the offence to promote respect for the law and to provide just punishments for the offence;

(b) to afford adequate deterrence to criminal conduct;

(c) to provide the defendant with educational or vocational training.

VOLUNTARY SENTENCING GUIDELINES

4.2 This option requires the development of sentencing guidelines which are not required by law to be followed, but which simply guide the courts in the exercise of their discretion. Such policies are based on past sentencing practices but may be elaborated either by appelate courts or more formally by a sentencing commission or council.

THE ADOPTION OF LEGISLATIVE GUIDELINES WHICH ASSIST IN DETERMINING THE CHOICE AND LENGTH OF THE PUNISHMENT.

4.3 This option is based on the Swedish model which provides that the legislature determine the nature of punishment and the penal value attributed to the particular offence. The penal value is determined with special regard to the harm, offence or risk which the conduct involved and what the accused realized or should have realized about the conduct including his intentions or motives.

4.4 A number of aggravating and mitigating factors are listed which enhance or diminish the penal value.

THE ENACTMENT OF PRINCIPLES OF SENTENCING INCLUDING GUIDELINES WHICH DETERMINE THE IMPOSITION OF IMPRISONMENT.

4.5 This option is based on the proposals of the Canadian Sentencing Commission which recommended the enactment of the principles of sentencing. Provision is inter alia made for principles governing the determination of the sentence, i.e that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender for the offence. In addition a number of factors are listed which the court has to consider in determining the sentence and it includes -

• aggravating and mitigating circumstances;
• the need for consistency in sentencing of offenders for similar offences committed;
• the need not to impose excessive sentences;
• the fact that imprisonment should not be imposed solely for the purpose of rehabilitation; and
• the circumstances under which imprisonment should be imposed.
• consideration of aims of punishment such as denouncing blameworthy behaviour, deterrence, incapacitation, redress of harm done to victims and rehabilitation.

THE ENACTMENT OF PRESUMPTIVE SENTENCING GUIDELINES TO GUIDE THE IMPOSITION OF CUSTODIAL AND NON- CUSTODIAL SENTENCES.

4.6 Presumptive guidance is statutory orders which impose a predetermined sentence range to the judge. Although presumptive guidelines are statutory in nature they can allow the continued existence of a sentencing discretion if the judge is allowed to deviate from the adopted range under certain circumstances.

THE ENACTMENT OF MANDATORY MINIMUM SENTENCES COMBINED WITH A DISCRETION TO DEPART FROM THE SENTENCES UNDER CERTAIN CONDITIONS.

4.7 This option implies the enactment of a mandatory minimum sentence for example 15, 20 and 25 years imprisonment for a first, second and third conviction respectively coupled with a discretion to the sentencing officer to depart from the prescribed sentence if special circumstances exist. In such circumstances the sentencing court is required to record the circumstances and to give written reasons for departure from the prescribed sentence.