Executive Summary

1. The South African sentencing system faces various problems. There is a perception that like cases are not being treated alike; that sentencers do not give enough weight to certain serious offences; that imaginative South African restorative alternatives are not being provided for offenders that are being sent to prison for less serious offences; that sufficient attention is not being paid to the concerns of victims of crime; and that, largely because of unmanageable overcrowding, sentenced prisoners are being released too readily.

2. The background research conducted by the Commission has shown that the mandatory minimum sentences introduced by the 1997 Criminal Law Amendment Act, which sought to ensure that some serious offences were punished more severely and also to bring a measure of uniformity to the sentencing process, have effected some changes. Sentences for some crimes, most prominently rape, are now longer than they were before. However, difficulties remain with the 1997 Act.

3. Judicial officers, many of whom were opposed to the Act from its inception, have continued to criticise it for limiting their discretion. Even if their objection in principle is set aside, there are difficulties for sentencers in applying the new legislation. The 1997 Act deals with only some of the crucial issues. Only a limited number of crimes is covered while other serious crimes are not dealt with at all (kidnapping, for example, is not included), thus disturbing the proportionality between various types of crime. Most importantly, although latterly there has been a move towards consistency, judges have had difficulty in applying the “substantial and compelling circumstances” test in a context where general sentencing principles and the relationship of the test to them are not clearly defined.

4. When the1997 Criminal Law Amendment Act was passed no thought appears to have been given to what impact it would have on sentencing patterns, which in turn would have a knock-on effect on the prison system that would have to implement the new longer sentences. The reason for this may be that the legislation was designed to be temporary. The problem was not picked up immediately as the Act only came into force on 1 May 1998. Even then its effect was not felt for a considerable time since it applied only to offences committed after that date. The serious offences for which minimum sentences are prescribed take several months to come to court with the result that only in the latter half of 1999 were the minimum sentences prescribed by the Act regularly being imposed. Nevertheless, the impact of a sudden and significant increase in the number of life sentences, for example, will be felt for many years to come.

5. The research on mandatory minimum sentences, which the Committee conducted at the same time as the 1997 Criminal Law Amendment Act was passing through Parliament, confirmed that there was considerable opposition from the judges in particular to a scheme of legislated fixed sentences, even though it might provide a solution of a kind to the problems of sentencing disparity and of ensuring that serious crimes were punished with sufficient harshness. There was also significant opposition to binding guidelines developed by an independent sentencing commission. The idea of a system operating along the lines of the well-known Minnesota Sentencing Guidelines, which are generated by an independent commission, did, however, receive the support of the majority of the members of the Natal bench of the High Court.

6. The research conducted on restorative justice revealed that there was near universal support for giving victims an increased, although still not dominant, role in the sentencing process. It also found a significant sentiment favouring the use of restorative justice initiatives in less serious cases. In addition, there was no doubt that respondents felt that current measures for the compensation of victims of crime could be improved.

THE APPROACH OF THE COMMISSION

7. The Commission accepts that there is substance to the criticism of the sentencing system that has been advanced in the past decade, both before and after the introduction of the 1997 Criminal Law Amendment Act. An ideal system should be seen to promote consistency in sentencing, deal appropriately with concerns that particular offences are not being regarded with an appropriate degree of seriousness, allow for victim participation and restorative initiatives and, at the same time, produce sentencing outcomes that are within the capacity of the State to enforce in the long term. The Commission therefore proposes a framework that in its view can meet all these desiderata to the greatest extent possible.

8. Such a framework will require the co-operation of the different branches of government. A single branch cannot solve the problem on its own. Reform proposals should combine, as far as possible, the advantages that may be derived from the involvement of all three branches of government in the sentencing process and eliminate the disadvantages inherent in giving a single one of them priority. In the model that the Commission proposes, sentencing decisions will continue to be made by the courts, but these decisions will be informed by new initiatives from the legislative and administrative branches that will meet the need for consistency as well as sensitivity to the seriousness of offences, the needs of victims and the capacity of the system to carry out the sentences that have been imposed.

A NEW PARTNERSHIP

9. The key to the proposal is that the different arms of government enter into a new partnership. There will be more guidance for the courts on sentencing. In the first instance this will take the form of sentencing principles that are clearly articulated in legislation. In this way there will be a decisive break with common law, which has recognised divergent sentencing principles without establishing a clear relationship or hierarchy.

10. These principles will be supplemented by sentencing guidelines developed by an independent Sentencing Council for a particular category or sub-category of offence. The Sentencing Council will have to do research and consult widely before developing guidelines. It will have to collect and publish on an annual basis comprehensive sentencing data including a full list of all sentencing guidelines. The Council will also have to publish reports on the efficacy and cost effectiveness of the various sentencing options provided by legislation, determine the value of fine units and make policy recommendations on the further development of community penalties.

11. Judicial officers should play a large part on such a Council, both to ensure its independence and for the pragmatic reason that they have considerable practical experience of sentencing. There may be some concern about whether judges should be involved in a policy-making organ, which would generate sentencing guidelines that the judiciary itself would later have to apply. Concerns of this kind were decisively rejected by the Supreme Court of the United States of America in Mistretta v United States,^[1] which held that although up to that time Congress had delegated an almost unfettered sentencing discretion to judges, the scope of judicial sentencing discretion remained within congressional control. Congress therefore had the constitutional authority to take back this wide discretion and to delegate it, within statutorily defined limits, to an independent commission on which judges may serve.

12. To allow an appropriate role for the courts the guidelines are to be relatively more flexible. In addition the courts will be able to develop jurisprudence on the grounds for departure from the guidelines that will form a cornerstone of the proposed new sentencing partnership.

13. The Sentencing Council will be constituted to allow the judiciary to have a major input in the shaping of the guidelines. It will be a relatively small body but will have the statutory duty to consult widely. The cost of the Council will be more than offset by the efficient use punishment resources, which should result in savings for the criminal justice system as a whole.

14. The Sentencing Council will be independent but not isolated from public opinion. Both the Ministers most closely associated with sentencing, viz the Ministers of Justice and of Correctional Services, and Parliament would be able to ask the Council to consider the development of guidelines for a category of offences that the public might regard as not being treated with the appropriate degree of seriousness. Cabinet and Parliament would thus be able to take direct steps to bring public opinion to bear on the sentencing framework. However, they would not do so through legislation that might disturb the balance of the sentencing system as a whole or result in sentences that could not be implemented in the long run. The public too would be able to approach the Sentencing Council directly, although not to compel it to act.

15. A new sentencing framework requires not only a new partnership amongst the different arms of government. It requires also a new partnership between the State and the public in general and victims of crime in particular. The key to this partnership is improved provision for victim involvement in the sentencing process and recognition of victim concerns in the type of substantive sentences that are handed down. The proposed new Sentencing Framework Bill addresses these issues in various ways.

OTHER INNOVATIONS

16. Careful attention is given to provisions for the major sentences of imprisonment for life or for a fixed period and provisions for the detention of dangerous criminals. Where such persons have committed offences that involved a serious physical injury and continue to present a major risk to the public, they may be detained for extended periods.

17. Community penalties are expanded by further provision for correctional supervision and community service. Conditions that may be attached to these sentences are spelt out and the procedures for imposing them simplified.

18. More emphasis is placed on restitution and compensation for victims of crime. To this end a new sentence of reparation is proposed. It includes elements of both restitution and compensation. The sentence may be imposed as an independent sentence, either on its own or together with other sentences. In addition imprisonment or a fine may be suspended on condition of reparation. The proposal is that the sentencing court must consider some form of reparation in every case.

19. The method of calculating fines has also been overhauled. In the future fines will be more closely related to the means of the offender.

20. The procedural innovations designed to benefit victims of crime include a requirement that prosecutors, when they intervene on sentence, must consider the interests of victims in every case. There is provision for victim impact statements to be presented to the courts so that they may learn what impact the crime had in practice. Victims must be told when and how they may be involved in the eventual release of sentenced offenders from prison. These innovations are backed by detailed rules to ensure that victims are told of their rights. There are also provisions to ensure that the income of offenders is revealed so that they can be ordered to make reparation for their crimes in an appropriate way.

21. The various changes that are proposed will be combined in a new piece of legislation, the Sentencing Framework Act. The Commission is putting forward a draft proposal for such a new Act. The new legislation will contribute to legal certainty by bringing together in one easily accessible law all the provisions dealing with the imposition of sentence. The general principles applicable to sentencing will be clearly stated. The publication of normative sentencing guidelines will simplify the task of the courts, thus contributing to speedy and effective justice and ensuring that offenders know what to expect. Simplified procedural rules will make it clear to the public what is happening in the sentencing process and encourage public participation in the administration of justice.

[1] 109 Supp Ct 647 (1989).

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