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2.1 It is clear from the evidence presented to the Commission over a long period, as described in Part I, that the problems identified as having plagued sentencing in South Africa, continue to cause difficulties. It remains a problem 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 concerns of victims of crime and that, largely because of unmanageable overcrowding, sentenced prisoners are being released too readily.
2.2 The research has shown that the provisions for 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, the 1997 Act has also caused some further difficulties.
(a) First, 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 regarded as overstated, it does seem fair to say that there are difficulties for sentencers in applying the new legislation. The Act deals with only some of the crucial issues and does not create a comprehensive sentencing framework or provide guidance on matters of sentencing principle. 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. In addition, although there has latterly been some move toward 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. In this difficult situation the public has been very critical of the judiciary without perhaps understanding the constraints of the legislation. The finding that a father who raped his young daughter represented no threat to the public at large, and that a ruling of substantial and compelling circumstances justifying the departure from a prescribed minimum sentence could be based, inter alia, on that “fact”, is a notorious example of a case that caused a widespread outcry.
(b) Secondly, with the passage of this Act 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. Certainly, the problem was not picked up immediately as the Act only came into force on 1 May 1998 and even then its effect was not felt for a considerable time, since it applies 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.
2.3 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 ensuring that serious crimes were punished with sufficient harshness. There was also significant opposition to binding guidelines developed by an independent sentencing commission. Interestingly enough though, the idea of a system operating along the lines of the well-known Minnesota Sentencing Guidelines, which are generated by an independent commission, received the support of the majority of the members of the Natal bench of the High Court. This was confirmed in their submissions on the discussion paper.
2.4 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. This improvement should be applied both to reparation that could be obtained in the sentencing process and to the wider issue of considering the creation of a national victim compensation scheme. The submission on the discussion paper and the national workshops confirmed the widely felt need for reparation to be an element of sentencing, wherever possible. This sentiment was however accompanied by the recognition that there might be practical limits on the reparation that could be made.
2.5 The Commission accepts that there is substance to the criticisms of the sentencing system that have been advanced in the past decade, both before and after the introduction of the 1997 Criminal Law Amendment Act. It remains of the view that an ideal system should 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.
2.6 Such a framework will require the co-operation of the different branches of government. A single branch cannot solve the problem on its own:
(a) The legislature has the advantage that it represents the will of the people and can convey the public sentiment about the need to punish a specific type or category of offence in a particular (usually harsher) way. However, an inflexible sentencing framework set by the legislature may result in grossly disproportionate sentences that are unconstitutional. There is also the further disadvantage that legislative intervention dealing with specific crimes without an overview of the whole system of imposing and implementing sentence may lead to sentences that the system does not have the capacity to implement. The long-term result of this can only be early releases, as the prison system gradually becomes intolerably overcrowded.
(b) The courts have the advantage that they try individual cases and can make sentencing decisions based on the specific facts of the case and information about the particular accused. Some South African judges believe that this advantage alone should give them an unfettered discretion to impose sentence. However, unstructured discretion is an exercise of absolute power that cannot be tolerated in a democratic state. This argument has been the driving force in sentencing reform in Anglo-American jurisdictions for the past three decades.[51]
In response it can be and was argued that in South Africa the sentencing discretion of judicial officers is not entirely unstructured. Sentencing jurisprudence, as developed through the appellate system, has led to the emergence of some general sentencing principles. In South Africa, however, even these are relatively poorly developed and historically the higher courts have allowed sentencers a great deal of discretion. As Professor Rob Nairn remarked in 1977: “The problem of uniformity has not yet been approached seriously and scientifically in our law, and until it is it will remain a murky and uncertain, albeit vital problem.”[52] This criticism remains pertinent.
A further difficulty of allowing the courts unlimited sentencing discretion is that their individual sentences may result in an overall burden of punishments that is beyond the capacity of the state administration ever to implement. While the State must be prepared to budget adequately for the implementation of sentences, it is clearly impossible for the State to spend the bulk of its resources on prisons and other forms of punishment. Within this scenario there are only two possible solutions: either the prisoners have to be released earlier, thus undermining the authority of the courts in the eyes of the public, or sentences have to be imposed within a framework that bears resource implications in mind and makes trade-offs accordingly.
(c) The administrative branch has the advantage that (theoretically) it can prescribe a framework that sets sentences at a level that can be accommodated within the correctional budget. It is possible to make reasonably accurate projections about how many convictions there will be for offences of particular types in a particular year and to project what sentences for them will entail for prison and community correction populations. The disadvantages of this approach are clear. A purely administrative body operating in this way would not be accountable for its decisions either to the legislator or to the courts. It would not be sensitive to public opinion on the seriousness of particular kinds of offences and it would not have the insight that comes to sentencing courts from dealing with the details of the specific offences committed by individual offenders.
2.7 The objective of the Commission is to put forward proposals that 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.
2.8 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.
2.9 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.
2.10 In the view of the Commission 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.[53] 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,[54] 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.
2.11 In the discussion paper the Commission suggested a combination of sentencing guidelines developed by a sentencing council with guideline judgments to be given by the Supreme Court of Appeal. In the consultation process it became clear that such an approach would be impractical. The foreign experts emphasized that the Supreme Court of Appeal would not have the holistic view of national sentencing requirements that a comprehensive system of guidelines should take into account. Moreover, interventions on individual guidelines would disturb the system as a whole. Accordingly the Commission now recommends a simple system of direct guidelines. To allow an appropriate role for the courts the guidelines themselves are to be somewhat more flexible than initially proposed. 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. The Sentencing Council will also be constituted in a way that will allow the judiciary to have a major input on the shaping of the guidelines themselves.
2.12 The Sentencing Council will not be 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.
2.13 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.
2.14 At a substantive level, explicit attention is given to 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.
2.15 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.
2.16 Clearly the new structure will require to be set in legislation. The Commission recognises, moreover, that a legislative framework will have to be created that goes significantly beyond specifying the bare bones of the structure which it has sketched if a new sentencing system is to be established, which is based on principle and is to achieve the somewhat diverse desiderata that it has outlined. The detailed motivation for the specific provisions proposed will be considered in subsequent chapters. For the moment it is necessary only to outline the types of provisions that are required and the justifications for them in general terms.
2.17 The relatively clear framework of normative guidelines that will emerge specifying the range of sentences normally to be imposed for all major categories and sub-categories of offences will contribute to legal certainty and the elimination of the disparities that are the source of much of the criticism of the current system.
2.18 Clarity on the sentence to be imposed for a particular offence or sub-category of offence will assist in making the operation of the criminal justice system as a whole more efficient. Accused persons will know what penalty they face by pleading guilty to a specific offence. Where counsel for the defence negotiates a plea of guilty with the prosecution, both sides will know what the likely outcome will be. To a greater or lesser extent such negotiations are a feature of most criminal justice systems and another committee of the Commission is currently investigating how they can best be regulated to eliminate abuses while achieving maximum efficiency. The proposed sentencing framework will assist in this process by ensuring that the sentencing basis for negotiations is established clearly. This will facilitate negotiations, which currently are handicapped by neither the prosecution nor the defence being able to predict with any degree of certainty the sentences that will result from the pleas upon which they might agree.
2.19 The development of sentencing guidelines by the Sentencing Council requires an articulated basis from which it can proceed. To this end the proposed Sentencing Framework Bill deals in the first substantive sections, after the definitions, with the purpose of sentencing and the principles to be applied in deciding upon an appropriate sentence.
2.20 There must be clear provisions about what is meant by sentencing guidelines and the process for establishing such guidelines by the Sentencing Council.
2.21 The proposed Sentencing Council will have to be created by legislation. In the discussion below the principles underlying its composition are spelt out as well as a proposal about how it can be established most cost effectively in the current South African state structure. Its functions are also described.
2.22 Clarity also requires that the public have a clear idea of how the sentence will be implemented. This is particularly true of community penalties and also of the rights of victims to make representations at the stage of release.
2.23 The new partnership that is envisaged, implies that the law governing sentencing is accessible to all the parties involved in the sentencing process. In practice the law describing the sentences that may be imposed and the procedure to be followed on imposition is contained primarily in chapter 28 of the Criminal Procedure Act 51, of 1977. Chapter 29 of the same Act governs compensation and restitution. Both have been amended many times. It is clear that the new legislation requires a fresh look at these provisions.
2.24 The punishments that may be imposed must be reconsidered. The consultation with foreign experts in particular persuaded the Commission that the penalty structure could be simplified and modernised. In addition to the new penalty of reparation other changes are designed to streamline the existing penalties. All sentences involving loss of liberty are dealt with under the heading of imprisonment. Special provision is made for life imprisonment, for extended detention of dangerous criminals and for the treatment-oriented detention of drug addicts. A new system of unit fines is introduced. The community penalties of correctional supervision and community service are more clearly described and a standardised list of conditions that may be imposed to meet modern restorative requirements is introduced.
2.25 Careful attention needs to be paid to variations of sentence that allow sentences to be implemented in such a way that the impact of the primary sentence is altered significantly. Here we have in mind particularly the very complex provisions that have grown up around the suspension of sentences. Not only have these provisions become encrusted with amendments that make them very complicated, but how they relate to the whole new sentencing scheme must also be reconsidered. The new Act attempts to simplify these provisions and to relate them directly to the two types of sentence, viz. the fine and imprisonment, that may be suspended.
2.26 The current procedure for presenting evidence at the sentencing stage is very sketchy – see section 274 of the Criminal Procedure Act. The renewed emphasis on the victim of crime in particular requires more comprehensive evidentiary rules. These should include provision both for victim impact statements and for the testimony of victims themselves.
2.27 A practical issue of considerable importance is how sentences should be adjusted to provide for the (increasing) time that many offenders spend in detention before sentence. The current law on this question is not codified and clarity is urgently required.
2.28 The punishment jurisdiction of the regional and district magistrates’ courts limits their ability to impose certain punishments. A case may therefore be made for including questions of punishment jurisdiction in comprehensive sentencing legislation, particularly as section 51(2) of the 1997 Criminal Law Amendment Act also increased the punishment jurisdiction of the regional court to some extent. The Commission does not support this argument. Sentencing jurisdiction is one of the bases according to which the hierarchy of courts is established. It is therefore properly dealt with in the legislation establishing those courts, other than the High Court that has inherent jurisdiction to impose all lawful punishments. The Commission notes, however, the criticism of the provision in the 1997 Criminal Law Amendment Act that requires the High Court to impose a sentence in instances where the prescribed sentence is life imprisonment even if the accused is tried and convicted in the regional court. This criticism culminated in the judgment of Lewis J in S v Dzukuda holding that the procedure was unconstitutional.[55] Even if the question of constitutionality or otherwise of the procedure is set aside, it is inherently undesirable to separate the trial from the sentence. The sentencing framework that is being proposed in this report will result in the repeal of the “artificial” provision in the 1997 Act that allows for persons convicted in the regional court to be sentenced by the High Court. Consideration should be given to mechanisms outside sentencing legislation to ensure that as a matter of general practice courts only try those cases that they have the sentencing jurisdiction to sentence appropriately. This can be achieved by the prosecuting authorities allocating cases for trial in a way that ensures this result. If there are practical difficulties with this solution the issue of sentencing jurisdiction should be re-examined as part of a wider review of the structure of the criminal courts. Such a review should await the development of the sentencing guidelines proposed by the Commission, as the sentencing guidelines are likely to specify a relatively small number of sub-categories of offences that will require life sentences or other sentences beyond the jurisdiction of the regional courts.
2.29 It is important to recognise that the proposed new Bill will not cover certain questions relating to sentence, as systematically they fit better in other parts of the legal system.
2.30 In recent years the powers of the State to appeal against sentencing judgments have been increased greatly. There appears now to be procedural equality of arms between the parties in this regard. The Commission believes that the current appellate framework will meet the needs of the new sentencing system and proposes that the provisions dealing with appeals against sentence be left in the chapter of the Criminal Procedure Act dealing with appeals generally. The same applies to reviews of sentence. Any technical alterations that may be required to the appeal and review procedures as a result of the proposed sentencing legislation should be made by amending the existing provisions.
2.31 Reparation is mentioned above as a sentencing option that is to be developed vigorously. Compensation for victims of crime generally is a wider topic outside the scope of the proposed new Sentencing Framework Bill. The Commission is currently also considering whether to recommend a wider scheme of compensation for all victims of crime.
2.32 Parole is technically not a sentencing issue, as it relates to the implementation rather than the imposition of sentence. In theory, parolees are simply serving part of their sentences in the community where they are subject to restrictions and may be recalled at any time until the full period of time specified in their original sentences has elapsed. In practice, of course, it makes a great difference to the offenders whether their sentences are served in prison or outside of it. The public too, perceives a sentence served in prison as harsher than one served subject to the conditional release of parole.
2.33 The simplest and fairest system of parole is one where persons with sentences of similar severity have an equal opportunity to be considered for parole. If, at the sentencing stage, restrictions on the possibility of being released on parole are placed on some prisoners and not others, it fundamentally distorts the relative proportionality between sentences which lies at the heart of these proposals for sentencing reform. At the moment there are no such restrictions. However, section 276B of the Criminal Procedure Act, which was inserted in 1997 but which has never been brought into effect, provides that a judge or magistrate who sentences an offender to imprisonment for more than two years may determine a non-parole period of up to two-thirds of the sentence, or 25 years, whichever is shorter. Similarly, section 73(6)(b)(v) of the Correctional Services Act 111 of 1998, which has also not been brought into effect, provides that an offender sentenced to a mandatory term of imprisonment in terms of the 1997 Criminal Law Amendment Act must serve four-fifths of the term of imprisonment or 25 years, whichever is shorter, before being considered for parole, unless the court orders that parole must be considered after two-thirds of the sentence.
2.34 The Commission recommends that, in order to ensure real proportionality between sentences, no power be given to sentencers to specify a non-parole period in the proposed Sentencing Framework Act. Accordingly no primary reference to parole need be included in the sentencing legislation. The practical effect will be that all sentenced prisoners will be considered for release on parole after having served the same proportion of their sentences. This does not mean that they will be released, even conditionally, when they have served the minimum period. It should be noted that the new parole system to be introduced by the 1998 Correctional Services Act is designed to ensure a thorough consideration of parole decisions and to reduce the risk of early release that will unnecessarily endanger victims of crime and the public in general. The new procedures include independent parole boards and provision for victims of violent crime to be able to bring their concerns to these boards. The proposed Sentencing Framework Act complements these provisions by stipulating that victims must be informed at the sentencing stage of their rights to make representations when parole is considered. The proposed Act also provides that the sentencing court may specify any particular factors that it wishes to bring to the attention of the parole boards.
2.35 The current proposals do not deal with the sentencing of children, as the Commission has recently made comprehensive proposals on youth justice, which cover children facing criminal charges.[56] Although the draft Act does not deal specifically with youth, it may be important in determining the degree of culpability of an offender or in establishing a basis for departure from a sentence proportionate to the seriousness of the offence.[57]
2.36 Finally, it is important that the sentencing of convicted offenders should not be confused with the diversion from the criminal justice system of alleged offenders whose guilt has not been established beyond a reasonable doubt. The draft Bill deals only with the former, that is, with offenders who have been convicted. The warrant for the State to intervene and limit the rights of an offender is derived from a conviction. This does not mean that, in practice, there may not be an overlap between sentences and diversionary strategies, particularly in the area of community corrections. Diversion of the unconvicted ought, however, to be dealt with in appropriate provisions of the Criminal Procedure Act.
[51] The seminal works on the topic are undoubtedly those of former US federal judge, Marvin Frankel, Criminal Sentences: Law without Order (1972) and Andrew von Hirsch, Doing Justice: The choice of Punishments (1976). For comprehensive modern overviews, see, Chris Clarkson and Rod Morgan The Politics of Sentencing Reform (1995) and Michael Tonry Sentencing Matters (1996).
[52] RG Nairn “Sentencing S v Young 1997 1 SA 602 (A)” (1977) 1 SACC 189-191.
[53] See also part II ch 2 where the structure of the Sentencing Council is considered in more detail.
[54] 109 Supp Ct 647 (1989).
[55] See text above paragraph 1.33.
[56] SA Law Commission Report on Juvenile Justice Project 106, July 2000, ISBN 0-621-30228-7.
[57] For the significance of these factors in the sentencing framework, see Part III Chapter 1, paragraph 3.1.21 below.
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