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The draft Sentencing Framework Bill attempts to spell out in legislative terms the ideas for a new sentencing system based on a new partnership as described in Part 2 above. The chapters in this part follow the chapters of the proposed Bill. The notes they contain focus on certain provisions that seem to the Commission to be particularly controversial or to require further explanation.
3.1.1 In establishing a sentencing framework it is impossible to avoid the wider questions of the general approach that should underlie sentencing. The Commission has proceeded from the position that the purpose of a sentence is to punish those offenders, and only those, who have been found guilty of a particular offence by limiting their rights and imposing obligations on them. Obviously the punishment must not be so severe that it infringes the human dignity of the offender. The reference to the human dignity of the offender in the preamble makes this point. The reference to human dignity also implies that the punishment must be limited by the restrictions contained in the Constitution, including the constitutional prohibition of cruel, inhuman or degrading punishment or treatment.
3.1.2 It is necessary to have this provision on punishment at the beginning of the Bill to make clear that the legislature is aware that sentences limit fundamental rights and that such limitation is only justified when accused persons have been convicted by due process of law. This is the constitutional basis of the whole criminal justice system. It is why an innocent person cannot be sentenced, even if such a ‘sentence’ would deter or prevent crime.
3.1.3 There is a second aspect of constitutionally acceptable sentencing. Punishment imposed must not be “grossly disproportionate” to the crime committed. This principle has been recognised in the law of many countries that have constitutions with entrenched bills of fundamental rights.[58] The reasoning is simple. If it is the fact that an offender has been convicted of a crime that allows the state to impose a sentence that limits the rights of the offender, then the right to punish is limited by the seriousness of the offence itself. To punish significantly beyond that level would be to subject the offender to an unjustifiable loss of rights that may well be “cruel, inhuman, or degrading”.
3.1.4 If one of the main problems with the current sentencing system is disparity, in the sense that like cases are not treated alike, then it is not unreasonable to suppose that one must have a clear idea of what the purpose of sentencing is and what principles should be applied to it. The constitutional prohibition of grossly disproportionate punishment allows the legislature considerable scope to set a framework of principles for the determination of appropriate punishments and at the same time points the legislature in the direction of the ideal sentencing system. We would argue positively that it is desirable that punishment in the first instance must be proportionate to the seriousness of the offence so that offenders can get their just deserts. The seriousness of the offence depends in turn on the harm caused by the offence and the culpability of the offender in respect of the offence. A focus on harm and culpability will enable a court to impose adequately severe sentences. The advantage of having the offence as the main focus of the sentencing decision is that if offences can be weighted and compared then one of the main criticisms of the current system, namely sentencing disparities, can be addressed. A clear notion of which offences are most serious is a first step towards ensuring that like cases are treated alike. Similarly, a way must be found of determining culpability, which does not lead to inconsistency, thereby ensuring equality and excluding unfair discrimination on any of the grounds mentioned in section 9(3) of the Constitution.
3.1.5 The method proposed for determining proportionality is, in the first instance, to focus directly on the seriousness of the offence committed. Courts, and also the Sentencing Council when developing guidelines, will have to evaluate this in the light of how seriously an offence of the same kind is regarded by other courts in terms of the punishments they routinely impose for it. In the case of common law offences a single-offence category, for example, ‘murder’ or ‘fraud’, may encompass a very wide range of seriousness. In such instances it may be necessary to break the offences up into sub-categories in order to make a meaningful comparison. This is already being done, not only in the schedule to the 1997 Criminal Law Amendment Act, which specifies penalties of defined sub-categories of serious common law offences, but also by concepts such as robbery with a dangerous weapon, which is a sub-category of the common law offence of robbery. It is envisaged that the Sentencing Council will develop normative guidelines dealing with the major common law offences and that they will introduce sub-categories where these are necessary because guidelines for broadly defined offences would otherwise be too rigid. Where there is no sentencing guideline the sentencing court will have to rely on such information as is currently available on sentencing practice or can be made available by the Sentencing Council. Obviously, where the offence is new, or where there is little by way of precedent, the courts will rely more heavily on their own judgment of the seriousness of the offence.
3.1.6 In addition to the seriousness of the offence it is proposed that a further factor be considered in the primary determination of a proportional sentence, namely the presence or absence of relevant previous convictions of the offender. Strictly speaking, this is an additional factor that goes beyond the requirements of offence proportionality and one which desert theorists have difficulty in justifying.[59] Some go as far as rejecting the notion that previous convictions ought to be relevant to sentence. They argue that considering previous convictions represents a form of double jeopardy. Among those theorists who support the consideration of previous convictions, some have argued that accused persons who have been confronted with the wrongfulness of their conduct by a previous conviction deserve to be punished more harshly if they again ignore the dictates of the law. Other supporters argue that the absence of previous convictions entitles offenders to a type of discount, which they gradually lose as they commit more crimes.[60] It is not possible to settle this difference of opinion here. The proposed provision (section 3(4) of the draft Bill) makes it clear that the offence should be the primary consideration. The presence or absence of previous convictions should merely be a modifier of the appropriate sentence. Restrictions are contained in the term “relevant” previous convictions and in the limitation in the qualifier, “moderate”. South African jurisprudence has long considered the relevance of some previous convictions rather than others.[61] A restriction of the impact of the previous convictions by a reasonableness test is used also in Swedish law.[62]
3.1.7 The focus on proportional punishment does not exclude the possibility that sentencing can achieve other of its traditional objectives. An overall objective of the criminal law is obviously to deter crime. It is also the objective of the sentencing system as a whole, as is recognised in the preamble to the proposed Bill. This does not mean, however, that deterrence should determine sentences directly. Sentences set with deterrent objectives in mind might be grossly disproportionate and therefore not only unfair but also unconstitutional. In any event, the emphasis on the offence will mean that the most heinous crimes, which usually are those most requiring deterrence are punished most heavily. One should also note that the proposal is designed to create a system that is fair in the long run and not the ‘quick fix’ of a temporary measure, such as the mandatory sentences created by the 1997 Criminal Law Amendment Act. In other words, it is argued that the general function of deterrence of crime is best served by the sentencing system if it is fair in that the penalties it inflicts are not disproportionate to the crimes committed.
3.1.8 A factor that must be accommodated in the determination of the sentence to be imposed is the restoration of the rights of victims. This factor is related strongly to the human dignity of victims and this too is mentioned in the preamble to the proposed Bill. In principle all sentences, even sentences of imprisonment, can be implemented in ways that grant opportunities for restorative programmes. Some community penalties may be particularly effective in this respect. Programmes of mediation, for example, may be ordered as part of such a sentence. The sentence of reparation too can play a part. Where these results can be achieved by imposing a sentence that still has the appropriate penal element required by the principle of proportionality, it should be done.
3.1.9 Accommodation may be made if society urgently requires that the offender be incapacitated. It may be possible to impose a sentence other than imprisonment of equivalent penal value that would take the offender out of the community. A difficulty of principle is created if incapacitation requires that an offender be removed from society for longer than is justified by the offence itself. Current South African law recognises the need for an exception in such cases and makes provision for “dangerous criminals” to be detained indefinitely (or for as long as the sentencing jurisdiction of the particular court would allow), that is, beyond the period that would be proportionate to the offence. The Commission accepts this exception, which has been recognised as constitutional in other countries,[63] as long as it is hedged by appropriate safeguards. These should ensure that the additional detention for dangerous criminals is only used for persons who have been convicted of an offence involving serious physical injury so that the disproportionality of the incapacitating sentence is not “gross”; that an adequate procedure exists to assess their future dangerousness; and that there are safeguards to ensure that the procedures for declaring someone a “dangerous criminal” are not used to impose heavier punitive sentences than the law allows. The existing provisions, sections 286A and 286B of the Criminal Procedure Act, have to be tested against these standards.[64]
3.1.10 The concern of sentencing with the rehabilitation of offenders can also be accommodated to some extent within the framework of proportionality. The proposed Act does not deal with the implementation of sentence, but the new Correctional Services Act sets the enabling of sentenced offenders “to lead a socially responsible and crime free life in the future”[65] as the overall objective of both imprisonment and community corrections. It has to be emphasized that a sentence of adequate weight always has to be imposed. Nevertheless, it may be possible, particularly in offences of medium degrees of seriousness to choose between different sentences on the basis that some may facilitate rehabilitation better than others.[66] It may, for example, be the case that appropriately targeted community penalties are more effective in rehabilitating offenders than imprisonment. If penal equivalence can be established between the two, a community penalty would therefore, all other things being equal, be the correct choice.
3.1.11 Finally, it should be noted that there is provision for downward departure from the seriousness of the offence standard by allowing other circumstances to be considered. However, this ground for departure is limited by the stipulation that the departure must be to a “reasonable extent”. The sentence should still reflect the seriousness of the offence as far as possible. Moreover, the circumstances justifying departure have to be “substantial and compelling”. The words “substantial and compelling” are used deliberately, as they allow some flexibility while limiting departures to cases where there is very strong, if not exceptional, justification for it. The new partnership requires this in order to reduce unwarranted disparities. In the view of the Commission the most recent jurisprudence on the interpretation of these words[67] offers a point of departure for the development of what is the most complex component of any sentencing system, namely a mechanism to provide for departures in truly deserving cases while ensuring that like cases are treated consistently by giving primacy to the seriousness of the offence. It should be added that the Commission considered listing of various factors as specific grounds for departure. However, it was persuaded by the foreign experts that the attempt to do so might distort the framework. The same argument applied to an attempt to list factors that should never be taken into consideration.
3.1.12 The Commission recommends the preamble should state the purpose of the Bill in general terms:
Preamble
With the objective of establishing a comprehensive sentencing framework to deter criminal conduct and to make society safer by providing for the consistent and just punishment of offenders with sentences that recognize the human dignity of offenders and of victims of crime.
It should then proceed to deal with the general principles in the following terms:
2. The purpose of sentencing
The purpose of sentencing is to punish convicted offenders for the offences of which they have been convicted by limiting their rights or imposing obligations on them in accordance with the requirements of this Act.
3. Sentencing principles
(1) Sentences must be proportionate to the seriousness of the offence committed, relative to sentences for other categories or sub-categories of offences.
(2) The seriousness of the offence committed is determined by the degree of harmfulness or risked harmfulness of the offence and the degree of culpability of the offender for the offence committed.
(3) Subject to the principle of proportionality expressed in subsection (1) sentences must seek to offer the optimal combination of-
(a) restoring the rights of victims of the offence;
(b) protecting society against the offender; and
(c) giving the offender the opportunity to lead a crime-free life in the future.
(4) The presence or absence of relevant previous convictions may be used to modify the sentence proportionate to the seriousness of the offence to a moderate extent.
(5) (a) Except to the extent that other provisions of this Act modify them, the principles contained in this section must be applied in the determination of all sentences within the limits relating to maximum sentences prescribed in legislation and the sentencing jurisdiction of the court.
(b) The principles apply notwithstanding minimum sentences that may be set by any law.
4. Departure from sentence proportionate to the seriousness of the offence
The sentence proportionate to the seriousness of the offence referred to in section 3 may be reduced to a reasonable extent where there are substantial and compelling circumstances, other than the degree of harmfulness or risked harmfulness of the offence and the degree of culpability of the offender for the offence committed, that justify such reduction.
3.1.13 The introduction of sentencing guidelines is the key innovation in ensuring consistency and implementing the sentencing framework of the draft Bill. The sentencing principles that underlie the guidelines have already been explained in the previous section. As a result of the responses to the discussion paper, modifications were made to the proposed procedure for the development of guidelines. The procedure that the Sentencing Council must follow is now stated in more abstract terms to give the Council more scope on how best to develop the guidelines: For this reason the100 point scale that was initially proposed has been dropped. There is also provision for dealing with the (probably fairly rare) instances where the harm caused by an offence will differ significantly from one part of the country to another. This qualification was introduced to deal with crimes, such as stock theft, which differ in this way.
3.1.14 One important feature needs further elucidation. In the determination of guidelines the capacity of the penal system in general and of the prison system in particular is a key factor that must also be considered. It is important to explain why this is the case. In this regard we can do no better than quote the leading modern penal theorist, Andrew von Hirsch:
It is sometimes said to be unjust and inappropriate to let prison space influence punishment levels. This claim seems plausible on a retributive theory of punishment. Why should offenders’ deserts depend on how much room there is in penal institutions? On closer analysis, however, the claim does not stand. Granted, it would not be appropriate to use space constraints to impose unequal punishment on offenders convicted of equally reprehensible conduct. But if parity among blameworthy offenders is maintained, and if punishments are graded according to the gravity of the criminal conduct then desert principles allow some leeway in determining the anchoring points and overall severity level of the penalty scale. To the extent that such leeway exists, resource availability may be a legitimate factor in deciding overall severity levels.[68]
3.1.15 There are additional arguments. The South African Constitution explicitly stipulates the minimum rights of all detainees, including sentenced prisoners. These include the right to adequate accommodation. The government therefore cannot design a sentencing system that will allow these rights to be infringed routinely.
3.1.16 Moreover, in South Africa prison spaces are likely to remain a scarce resource. In this context it must be recognized that it is unrealistic to impose sentences that require in sum more prison space than is likely ever to be available. Introducing this consideration at the level of the guideline will ensure that hard choices are made and that imprisonment is reserved for those who deserve it most, while cheaper alternatives are used for others who also have to be punished. The inescapable long-term alternative to guidelines constructed in this way is the periodic mass release of prisoners, a policy which the public rightly regards with skepticism and which the courts view, with justification, as undermining their authority.
3.1.17 It is important to recognize that the guidelines themselves have a degree of flexibility. Departures of 30 percent upward or downward from the guidelines may be allowed.[69] There may be further flexibility if a guideline allows for the suspension of sentence. For offences of medium seriousness a guideline may provide for more than one sentencing option; for example, a relatively short term of imprisonment or a fairly strict community penalty may both be options.
3.1.18 In applying the guidelines two sets of rules are of relevance. Within the framework of variation that a guideline itself may allow, the principles in section 3, apply. On this basis a court will be free to select an appropriate sentence that falls within the guideline.
3.1.19 For a departure from the guidelines the limitations on the powers of the sentencing court are stricter. A sub-category should be ideally defined in such a way that an appropriate sentence for all offences that fall within it can be encompassed by a guideline with various options and a maximum of 30 percent variation upwards and downwards. However, if an offence falls within a particular sub-category, but its seriousness requires a sentence that is substantially more or less than the guideline allows, then a departure that goes above or below the parameters of the guideline is allowed.
3.1.20 A departure downwards that goes beyond what the guideline may allow is also possible in circumstances unrelated to the seriousness of the offence. However, this flexibility too must be limited in order to achieve the overall goal of increased consistency. For this reason, departures beyond the limits set by the normative sentencing guidelines will only be allowed if there are “substantial and compelling circumstances” justifying such departure.
3.1.21 A further device to enhance consistency is the provision that all departures from guidelines must be “reasonable”. Courts should not regard themselves as “at large” once they have found that there are grounds of departure, but should still attempt to impose sentences that come as close to the guidelines as possible. This may of course not be realistic in all cases.
3.1.22 The Commission recommends the inclusion of the following provision in the draft Bill:
5. Sentencing guidelines
(1) A sentencing guideline specifies a sentencing option or sentencing options and their severity for a particular category of offence or sub-category of offence.
(2) The sentencing options that may be included in a guideline are -
(a) imprisonment;
(b) a fine; and
(c) a community penalty.
(3) Sentencing guidelines are determined by applying the sentencing principles in section 3 by -
(a) grading categories or sub-categories of offences according to their comparative seriousness and ranking them accordingly; and
(b) prescribing sentencing options and their severity for categories or sub-categories of offences in terms of their ranking of seriousness, which are within the capacity of the correctional system to implement.
(4) Sentencing guidelines apply nationally but, where the degree of harmfulness of a category or sub-category of offence varies significantly from one magisterial district to another, different sentencing guidelines may be prescribed for specified magisterial districts.
(5) In determining the severity of a community penalty as a sentencing option sentencing guidelines must specify the number of months of correctional supervision or the number of hours of community service.
(6) In determining the severity of a fine as a sentencing option sentencing guidelines must refer only to fine units, as the amount of a fine is calculated in terms of section 22.
(7) A sentencing guideline may provide -
(a) for an increase or decrease of up to 30 percent in the severity of a sentencing option; and
(b) that a part or the whole of a sentence of imprisonment be suspended, if such suspension is permitted by this Act.
6. Applying sentencing guidelines
(1) When an offender is convicted of an offence that falls within a category or sub-category of offence for which a sentencing guideline has been determined, a court must, subject to subsection 4 impose the sentencing option of the level set by the guideline within the range of any increase or decrease that the guideline may allow.
(2) Where more than one option is available, a court may impose a combination of such options provided that the overall severity must not exceed the severity of a single option.
(3) In deciding amongst sentencing options and determining sentences within the range of increase and decrease that the sentencing guidelines may allow, the court must apply the sentencing principles in section 3.
(4) In order to ensure consistency in sentencing reasonable departures from a sentencing guideline are only allowed -
(a) upwards or downwards, in circumstances that increase or decrease substantially the degree of harmfulness or risked harmfulness of the offence or the culpability of the offender; or
(b) downwards, where there are substantial and compelling circumstances, other than the degree of harmfulness or risked harmfulness of the offence and the degree of culpability of the offender, that justify such departure.
3.2.1 The Sentencing Council, which will determine sentencing guidelines, will be a key player in the new sentencing partnership sketched in Part II. Its composition is therefore of crucial importance. In its discussion document the Commission favoured a membership that should be as representative as possible. However, in the consultation process it became apparent that many groupings in the criminal justice system, both within the state sector and outside, could claim representation on such a Council, which would therefore become unwieldy and expensive. The Commission is persuaded that the input of these groupings can be accommodated by a mandatory requirement that they be consulted. The proposal is therefore for a relatively small Council on which judicial officers, who collectively have to make sentencing decisions, will be heavily represented. They should be complemented by a limited number of state representatives and a single ‘outside’ expert on sentencing systems. The Director of the office supporting the Council should also be a member to ensure a clear link between administration and policy. Such a streamlined Council will be relatively inexpensive to operate.
3.2.2 The Commission wishes to emphasize that the precise composition, size, departmental location and detailed mode of operation of the proposed Sentencing Council are pragmatic issues. They do not raise major questions of principle. Other suggestions on these matters could therefore be contemplated without threatening the proposed new framework. The specific proposals with regard to the Sentencing Council should not be a stumbling block for the proposal as a whole.
3.2.3 The Commission recommends the inclusion of the following provisions in the draft Bill:
7. Establishment of the Sentencing Council
(1) The Sentencing Council is hereby established.
(2) The Council consists of the following members, appointed by the Minister -
(a) two judges of the Supreme Court of Appeal or the High Court, appointed on recommendation of the Judicial Services Commission;
(b) two magistrates appointed on recommendation of the Magistrates Commission;
(c) the National Director of Public Prosecutions, a Deputy National Director of Public Prosecutions or a Director of Public Prosecutions appointed after consultation with the National Director of Public Prosecutions;
(d) a member of the Department of Correctional Services of or above the rank of director, appointed after consultation with the Commissioner;
(e) a person not in the full-time employ of the State with special knowledge of sentencing; and
(f) the Director of the office of the Council.
(4) A member of the Council is appointed for a period of five years and any member whose period of office has expired is eligible for reappointment.
(5) The Minister may remove a member of the Council from office only on grounds of misconduct, incapacity or incompetence.
(7) A member of the Council who is not in the service of the State may receive such allowances as may be determined by the Director-General in consultation with the Minister of State Expenditure.
3.2.4 The principal ideas underlying the operation of the proposed Sentencing Council have already been mentioned in Part II above. The primary function of the Council is to create sentencing guidelines. It also has specific functions in respect of fines and community penalties. In addition it must provide information on the guidelines and on other aspects of sentencing. An accessible pool of sentencing information is a precondition for any sophisticated sentencing system and the Council will have a key role in developing and co-ordinating it. It must also facilitate training for judicial officers in the new sentencing framework.
3.2.5 In the process of creating and revising the guidelines, it will be essential for the Sentencing Council to stay in touch with public opinion on the relative seriousness of various offences. There must, therefore, be provision for cabinet ministers and Parliament to approach the Council directly. Where this happens the Council will have to consider establishing new guidelines or revising existing ones, although it will have to make its decision independently. The Council will also be able to respond to direct requests from the public.
3.2.6 The key to the effective functioning of the Sentencing Council will be in the research and consultation it does. In this regard the proposed office within the Department of Justice and Constitutional Development will assist it. Some of the information the Council requires will be statistical in nature and the Department will have to adjust its statistical systems to meet requests for information from the Department.[70] The consultation process is important too and the draft Act therefore sets a procedural framework for such consultation and lays down requirements as to whom should be consulted.
3.2.7 The Commission recommends the inclusion of the following provisions in the draft Bill:
8. Functions of the Council
(1) The primary function of the Sentencing Council are to establish sentencing guidelines and to review existing guidelines in terms of the general principles of, and in the manner prescribed in, this Act.
(2) The Council must set the monetary value of unit fines as prescribed by section 22.
(3) The Council may advise, and must advise when requested by the Minister, on the development of community penalties or other sentencing options.
(4) The Council must facilitate the establishment of a programme of judicial education on sentencing.
(5) (a) The Minister, the Minister of Correctional Services or Parliament may request the Council to establish a sentencing guideline or to review an existing guideline.
(b) If the Council receives a request made in terms of paragraph (a), it must act upon such request, following the same procedures as if it were itself taking the initiative.
(6) Any person may request the Council to establish a sentencing guideline or to review an existing guideline and the Council may respond to such a request.
9. Support for the Council
(1) An independent office under the management of the Director must support the work of the Council, and carry out its directives.
(2) The office consists of the Director, who must be an official of the Department, and such other staff as are necessary for the proper performance of the Council’s functions.
(3) The Director and staff are appointed in terms of the Public Service Act and the salaries of such staff members must be determined by the chairperson in consultation with the Director-General.
(4) Such staff, if not officials of the Department, are deemed for administrative purposes to be such officials under the control and authority of the Director.
(5) The Director-General must provide adequate financial and logistical support for the office and the work of the Council, including the consultation and research required by section 10.
(6) All government departments must provide statistical and other information required by the Sentencing Council.
10. Procedures and decisions of the Council
(1) Meetings of the Council are held at the times and places determined by the Chairperson of the Council.
(2) The Council regulates the proceedings of its meetings and the keeping of minutes.
(3) A majority of members of the Council constitutes a quorum for a meeting.
(4) All decisions of the Council are taken by the majority of members present.
(5) The Council may take decisions about establishing or reviewing sentencing guidelines only after consultation and research.
(6) The following must be consulted in establishing or reviewing sentencing guidelines:
(a) the National Commissioner of Police;
(b) the National Director of Public Prosecutions;
(c) the organised legal profession;
(d) the judiciary;
(e) the Commissioner;
(f) the Director-General of Welfare and Population Development;
(g) the Director-General; and
(h) as far as is practicable any person who, or organization which, in the opinion of the Council, has special knowledge or expertise relevant to the establishment of sentencing guidelines or the review of existing guidelines.
(7) Draft sentencing guidelines must be published together with a call for comment within a set time frame.
(8) The Council must consider any such comment before a sentencing guideline is finalized.
11. Coming into force of sentencing guidelines.
(1) Sentencing guidelines that have been established or revised by the Council must be published by notice in the Gazette.
(2) Such guidelines become applicable in terms of section 6 on a date specified in such notice.
12. Reports and information
(1) The Council must provide annually a report to Parliament that includes -
(a) a statistical overview of all sentences that have been imposed and that are still in force;
(b) projections of the estimated cost of continuing to implement such sentences in the future;
(c) as far as is practicable, information on the efficacy of sentences in reducing crime;
(d) a statistical overview of the development of the use of community penalties as sentencing options and their effectiveness; and
(e) a consolidated list of all the guidelines that it has developed.
(2) The Council must publish annually, electronically or otherwise, information on sentencing, including a consolidated list of sentencing guidelines that will assist the courts in imposing sentences in terms of this Act.
3.3.1 Before a sentencing officer can start considering the most appropriate sentence in a particular case, the types of sentences that may legally be imposed have to be determined. At present, section 276 of the Criminal Procedure Act, 51 of 1977, makes provision for different types of sentencing options. This section is the general enabling statutory provision as far as the various forms of punishment in criminal trials are concerned.
3.3.2 The Commission is of the view that the proposed Sentencing Framework Bill should simplify and clarify the sentencing options that are available, by enacting a modified version of the existing section 276. It should not, like its predecessor, provide for common law punishments, as for reasons of legality the courts should not have the power to create such new penalties. On the other hand, specific acts may need to create additional penalties, such as forfeiture. For this reason allowance is made for the provisions of “any other law”.
3.3.3 In the simplified list of sentences the Commission recommends that the declaration as a habitual criminal be omitted. The foreign experts who were consulted advised strongly against such a sentence, as it is contrary to the desert-based philosophy of the framework as a whole and could result in grossly disproportionate sentences. In any event, there is a general provision for the previous convictions of an offender to be taken into consideration. Moreover, the provision for the indefinite detention of dangerous criminals, which has been retained,[71] is an effective means of dealing with those habitual offenders who are also dangerous.
3.3.4 The Commission also recommends that the sentence of periodical imprisonment be abolished. The information presented to it was that this sentence was hardly used in practice. New penalties, such as the house detention aspect of correctional supervision, make it even less likely that periodical imprisonment will be a useful sentencing option in the future.
3.3.5 The question of suspended sentences also needs to be addressed in general terms: The suspension of sentences has long been a prominent feature of South African sentencing practice. Historically, positive conditions of suspension have been used to introduce indirectly many of the orders that make up the sentence of community corrections that is now being put forward as an independent sentence. Such sentences, it was argued, have had both a rehabilitative and a deterrent effect. The suspension of the whole or part of a sentence has been used as a way of reducing the harshness of sentence and ensuring that fewer people go to prison.
3.3.6 The Commission considered whether suspended sentences still have a role to play in a new system where community penalties may be imposed directly and where the primary principle of sentence is that the punishment must fit the crime. It was also concerned that suspension could increase the inequalities between sentences, as a suspended sentence does not have nearly the same penal impact on the offender as an unsuspended sentence of the same degree of severity. In the end it was persuaded that suspended sentences do have a part to play, particularly in keeping first offenders out of prison and in giving them an opportunity to attempt to reform. However, suspension of sentences on a large scale should not be allowed to distort the mechanisms that are being set in place to ensure equal punishments. Various mechanisms are proposed to limit the distorting effect of the suspended sentences. In setting a sentencing guideline the Sentencing Council may decide not to allow the suspension of a particular sentence at all. Only imprisonment and fines may be suspended. Moreover, in the case of imprisonment, a maximum of five years of the sentence may be suspended.
3.3.7 The architecture of this chapter reflects a major change from the overall structure of the draft Bill that accompanied the discussion paper. As now proposed, the provisions relating to individual sentencing options are grouped together. Thus, for example, the provisions for suspension of sentence are not stated in general terms as is done in the extraordinarily complex section 297 of the current Criminal Procedure Act. Instead, there are specific provisions dealing with the suspension of imprisonment - and later with the suspension of a fine under the general heading of the fine. Breaches of conditions of suspension and failures to meet the requirements of specific sentences are also dealt with separately. This was done on the advice of the foreign experts in order to simplify the law.
3.3.8 The justifications for the individual sentencing options that have been developed further will be discussed when the detailed provisions of the draft Bill that deal with them, are outlined below.
3.3.9 The Commission recommends that provision be made for a general clause specifying the following sentencing options:
13. Sentencing Options
(1) Subject to the provisions of this Act and any other law, a court may pass one or more of the following sentences upon any person convicted of an offence if justified by the sentencing principles referred to in section 3 or allowed by a sentencing guideline applicable to the offence:
(a) imprisonment;
(b) a fine;
(c) a community penalty;
(d) reparation; and
(e) a caution and discharge.
3.3.10 Presently the Criminal Procedure Act contains some provisions relating to a sentence of imprisonment. It provides that in construing any provision of any law (not being an Act of Parliament passed on or after the first day of September 1959, or anything enacted by virtue of powers conferred by such an Act), in so far as it prescribes or confers the powers to prescribe a punishment for any offence, any reference in that law to imprisonment with or without any form of labour, shall be construed as a reference to imprisonment only. A reference to any period of imprisonment of less than three months, which may not be exceeded, shall be construed as a reference to a period of imprisonment of three months.
3.3.11 The Commission recognizes that the current provisions of the Criminal Procedure Act relating directly to imprisonment are highly technical. In the new Act the provisions dealing with imprisonment should be different. Of key importance is that the Act should recognize that imprisonment is a drastic penalty. It is also expensive to implement. Although its use should not be avoided where there is no other option, provision must be made for alternatives to be used where possible and where this can be done without jeopardizing community safety.
3.3.12 The Commission also recommends that a brief provision preventing prison sentences of less than seven days be retained to deal with impracticably short sentences. The Commission considered proposing that prison sentences of less than three months be eliminated entirely, but decided not to do so, on the basis that the effect might be that courts that were determined to send someone to prison would simply impose a sentence of three months. It noted that the general rule in favour of non-custodial sentences would serve to inhibit the use of very short prison sentences, but that the option of imposing them should be retained for the unusual circumstances when they might be appropriate.
3.3.13 Life imprisonment is the longest prison sentence that a court may impose.[72] As far as the courts are concerned it lasts for the whole of the natural life of the prisoner.[73] Life imprisonment has been expressly provided for in the Criminal Procedure Act by the Criminal Law Amendment Act of 1990, but the Supreme Court has always been empowered to impose it.[74] It may only be imposed by the High Court because of the jurisdictional limitations of the other courts. Technically it may be imposed for any common law offence but with regard to statutory offences it is only allowed as a legitimate sentencing option if there are specific provisions for its imposition. Before the abolition of the death penalty life imprisonment was considered to be an alternative for the death penalty, should the latter not be the only proper sentence. Even then, life imprisonment was imposed only in cases of extreme seriousness where the protection of society was imperative.
3.3.14 Since the abolition of the death penalty life imprisonment is the most severe sentence that the courts can impose.[75] In S v T 7[6] the court explained that the sentence of life imprisonment authorises the State to keep offenders in prison for the rest of their natural lives. Unless this result is considered to be appropriate this sentence should not be imposed. The question is when is this option appropriate? From case law it appears that this option is not limited to exceptionally extraordinary circumstances.[77] It is clear though, that the crime has to be very serious and that mitigating factors should have little effect on the blameworthiness of the offender.
3.3.15 Some presiding officers have been concerned that the release policy of the Department of Correctional Services may have the effect that, despite the imposition of a life sentence, the offender may be released after having served only a few years of the sentence. If life imprisonment is an appropriate sentence, its imposition should not be avoided merely because the administrative machinery of the executive allows for the early release of the offender.[78] In any event, when the new Correctional Services Act 111 of 1998 comes into operation all prisoners will have to serve 25 years before they can be considered for release.[79] Only if the prisoner is older than 65 years of age will release be considered after 15 years. Moreover, the release of prisoners sentenced to life imprisonment, unlike other sentences, will be considered by the court that imposed the original sentence. The court itself thus has the power to extend the term actually served beyond the 25-year minimum.
3.3.16 It is unlikely that life imprisonment will be imposed with another sentence for a single crime. In practice other sentences are imposed for additional crimes of which the offender has also been convicted. If such sentences consist of any form of imprisonment they run concurrently with the sentence of life imprisonment. Very long terms of imprisonment cannot extend the period after which release is considered, because the new Correctional Services Act provides that all offenders, no matter how long their terms, must be considered for release after 25 years. This provision ensures that the life sentence remains the most severe sentence in practice.
3.3.17 The Commission recommends that the power to impose the life sentence be qualified only by the requirement that it must be limited to cases where it is justified by the extreme gravity of the offence. This qualification follows a similar provision in the Statute of Rome, which establishes life imprisonment as the most severe penalty that the new International Criminal Court will be able to impose, even for crimes against humanity such as genocide.[80]
3.3.18 Prison sentences with labour have been outlawed in South Africa for many years. (Sentenced prisoners may be compelled to work but this is governed by the Correctional Services Act.) Nevertheless, to put the issue beyond doubt, there is a provision to ensure that this remains the position.
3.3.19 The Commission recommends the inclusion of the following provision dealing with imprisonment in general:
14. Imprisonment
(1) Imprisonment may not be imposed where a community penalty or a fine is a sentencing option allowed by a sentencing guideline for a particular offence or, if in terms of the sentencing principles they would be options as sentences, unless imprisonment is required in order to protect society against the offender.
(2) Imprisonment may be for life or for a fixed term, except that no person may be sentenced by any court to imprisonment for a period of less than seven days unless the sentence is that the person concerned be detained until the rising of the court.
(3) Imprisonment for life is the most severe sentence and may be imposed only where the offence is extremely serious.
(4) A reference in any law to imprisonment with or without any form of labour as a punishment must be construed as a reference to imprisonment only.
15. Suspension of imprisonment
(1) Up to five years of a sentence of imprisonment may be suspended in whole or in part for a period not exceeding five years on condition that the person sentenced to imprisonment:
(a) does community service; or
(b) makes reparation; or
(c) complies with a specified order or orders referred to in section 33 without being subject to a community penalty.
(2) Where a sentencing guideline has been set for the category or sub-category of offence for which the sentence of imprisonment is being imposed, the sentence may be suspended only to the extent allowed by such guideline.
16. Amending conditions of suspension
The court that has suspended a sentence of imprisonment, whether differently constituted or not, or any other court of equal or superior jurisdiction, may on good cause shown amend or cancel any condition of suspension or add any other competent condition.
17. Failure to comply with conditions of a suspended sentence of imprisonment
(1) If it appears that any condition imposed in terms of sections 15 or 16 has not been met, the person concerned may upon the order of any court -
(a) be warned to appear before the court that suspended the operation of the sentence or any court of equal or superior jurisdiction; or
(b) be arrested and brought before such court.
(2) The court that suspended the sentence, whether differently constituted or not, or any other court of equal or superior jurisdiction, must enquire whether the person has failed to meet such a condition and into the circumstances of such failure.
(3) If such court finds that such condition has not been met due to circumstances beyond the control of the person, it may act in terms of section 16.
(4) If such court finds that such condition has not been met due to circumstances within the control of the person, it may amend or cancel any condition of suspension or add any other competent condition or put the suspended sentence into operation in whole or in part.
(5) When acting in terms of subsection (4) the court must consider the possible partial fulfillment of the conditions of suspension.
3.3.20 At present provision is made for declaring a person a dangerous criminal and the Criminal Procedure Act prescribes an indefinite sentence in such a case.[81] The provision was introduced relatively recently, in 1993, to replace the outmoded legislation that dealt with the detention of so-called psychopaths. The Commission accepts that potentially indefinite detention for truly dangerous criminals, who represent a danger to the physical well-being of other persons and against whom the community should be protected, is a justifiable exception to the general rule that sentences should be determined primarily by the seriousness of the offence committed.[82] The Commission therefore proposes that a simplified version of the existing provision be re-enacted as a variation of the sentence of imprisonment. In two important respects there should be substantive modifications to what is currently contained in the Criminal Procedure Act.
- Only persons who have been convicted of offences that involve serious physical injury and who have been sentenced to unsuspended terms of imprisonment of five years or more should be liable, in addition, to being declared dangerous criminals. In practice, current legislation is usually applied to the same effect, but it is nevertheless important to ensure statutorily that someone who commits a lesser, non-violent offence does not run the risk of being detained indefinitely.
- A careful analysis of the idea underlying the indefinite detention of dangerous criminals shows that it has two elements, namely punishment for serious crimes of violence and further detention, which is not punishment in the narrow sense but a form of preventive detention. The Commission’s view is that these two elements should be distinguished in legislation, so that someone is not detained when they have served the penal element of their sentence and may no longer be dangerous. It proposes to do so by requiring that the court review the continuing dangerousness of the offender at the time the offender would have been considered for conditional release had only a fixed-term sentence been imposed. Of course, the court at this point may decide to continue the detention. The result is that the power to detain dangerous criminals indefinitely is not undermined, but the safeguards are strengthened.
3.3.21 The Commission recommends the inclusion of the following provisions in the Bill:
18. Declaration as a dangerous criminal
(1) Where a High Court or a regional court sentences a person convicted of an offence that involved serious physical injury or the immediate threat of such injury to a fixed term of unsuspended imprisonment of five years or more, the court may, in addition, declare such person a dangerous criminal if it is satisfied, after having conducted any additional inquiry that may be required and followed the procedure specified in section 19 if appropriate, that there is a substantial risk that the person concerned may commit a further offence involving serious physical injury to any other person.
(2) Where a court declares a person a dangerous criminal such person is, subject to the provisions of section 20, detained in prison for an indefinite period.
19. Inquiry into a potentially dangerous criminal
(1) If it appears to a court having jurisdiction that a person may be a dangerous criminal in terms of section 18 and that psychiatric testimony may assist the court in determining whether this is the case, the court must direct that the matter be enquired into and be reported on in accordance with the provisions of this section.
(2) Before a person is subjected to an inquiry under subsection (1) the court must inform him or her of its intention and explain the content and gravity of the provisions of this Act relating to dangerous criminals.
(3) (a) Where a court orders an inquiry under subsection (1), the inquiry must be conducted and reported on by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court, and by a psychiatrist appointed by the person concerned.
(b) A psychiatrist appointed under paragraph (a), other than a psychiatrist appointed by the person concerned, must be appointed from the list of psychiatrists referred to in section 79 (9) of the Criminal Procedure Act: except that where the list does not include a sufficient number of psychiatrists who may conveniently be appointed for an inquiry under this Act, a psychiatrist may be appointed although his or her name does not appear on such list.
(c) A psychiatrist designated or appointed under paragraph (a) and who is not in the full-time service of the State, must be compensated for his or her services in connection with the inquiry, including giving evidence, according to a tariff determined by the Minister in consultation with the Minister of State Expenditure.
(4) The person concerned may, for the purposes of the inquiry, be committed to a psychiatric hospital or other place designated by the court, for such periods, not exceeding 30 days at a time, as the court may determine.
(5) When the period of committal in terms of subsection (4) is extended for the first time such extension may be granted in the absence of the person concerned unless he or she requests otherwise.
(6) The report on the inquiry must be in writing and submitted to the registrar or the clerk of the court, who must make a copy available to the prosecutor and the person concerned.
(7) The report must include a description of the inquiry and a finding whether there is a substantial risk that the person concerned may commit a further offence involving serious physical injury to any other person.
(8) If the persons conducting the inquiry are not unanimous in their finding, that must be stated in the report and the individual conclusions recorded.
(9) The contents of the report are admissible in evidence at criminal proceedings, except that a statement made by the person concerned at the inquiry is not admissible in evidence against him or her at the criminal proceedings, unless it is relevant to the determination of the question whether the person concerned is a dangerous criminal.
(10) (a) If the finding in the report is the unanimous finding of the persons who conducted the inquiry, and the finding is not disputed by the prosecutor or the person concerned, the court may determine the matter without hearing further evidence.
(b) If the finding is not unanimous or, if unanimous, is disputed by the prosecutor or the person concerned, the court must determine the matter after hearing further evidence.
20. Further detention of a dangerous criminal
(1) A person who has been declared a dangerous criminal and who -
(a) has served the full unsuspended term of imprisonment to which he or she was sentenced; or
(b) would, in terms of the Correctional Services Act, have been released conditionally or unconditionally had he or she been sentenced only to such imprisonment;
must be brought before the court that declared such person a dangerous criminal, whether differently constituted or not, or any other court of equal or superior jurisdiction.
(2) Such court, after considering a report from a Correctional Supervision and Parole Board and any other information, must determine whether there is still a substantial risk that such person may commit a further offence involving serous physical injury to any other person.
(3) If the court finds that there is still such a substantial risk it must -
(a) confirm that the person is a dangerous criminal and that the detention of the person in prison continues for an indefinite period; and
(b) order that such person be brought before the court within a fixed period that may not exceed five years.
(4) If the court finds that there is no such substantial risk it must release the person concerned unconditionally or on such conditions as it deems fit.
(5) At the expiration of a further period of detention as ordered in terms of subsection (3) the provisions of subsections (1), (2) and (3) apply with the necessary changes.
(6) The jurisdiction of the regional court is deemed not to be exceeded by any further periods of detention.
3.3.22 The sentence of committal to a treatment centre is a further exception to the principle that the offence should determine the punishment. It is explicitly oriented to the treatment and rehabilitation of the individual. The Commission was concerned that it could be used as a means of imposing what could be in fact disproportionately harsh punishments. However, the constraint that it applies only to an offender who objectively is dependent on drugs and the procedural requirements of a probation officer’s report, as well as the fact that the provision has been used conservatively in the past, persuaded the Commission to allow it to be continued as a variation of the sentence of imprisonment. As an additional safeguard the Commission recommends the inclusion of an additional requirement that the period of committal to a treatment centre should not exceed the term of imprisonment that the seriousness of the offence would justify.
3.3.23 The Commission recommends that the provision for committal to a treatment centre, which is in the current Criminal Procedure Act, be retained with the necessary editorial changes:
21. Committal to a treatment centre
(1) A court that convicts a person of any offence for which a term of imprisonment would be imposed if it applied the sentencing principles referred to in section 3 or followed a sentencing guideline applicable to the offence, may, subject to subsection (2), order that the person be detained at a treatment centre established under the Prevention and Treatment of Drug Dependency Act 20 of 1992.
(2) The court must determine a period of detention that does not exceed the term of imprisonment the court would have imposed had it not made such an order.
(3) An order may be made in terms of subsection (1) if the court is satisfied from the information placed before it, which must include a report of a probation officer, that such person is a person as described in section 21 (1) of the Prevention and Treatment of Drug Dependency Act 20 of 1992, and for the purposes of the said Act such order is deemed to have been made under section 22.
(4) (a) Where a court has ordered that a person be detained at a treatment centre under subsection (1) and the person is later found not to be fit for treatment in such centre, the person may be referred back to the court for re-sentencing.
(b) Whenever a court reconsiders a sentence in terms of paragraph (a) it has the same powers as it would have had if it were considering sentence after conviction, except that the time spent at the treatment centre must be regarded as part of the sentence that has already been served.
3.3.24 It is likely that fines will continue to be an important component of the criminal justice system. The provisions relating to fines in the current Criminal Procedure Act allow the courts considerable scope in determining how fines should be imposed. It also allows them considerable flexibility in tailoring the methods of payment to the ability of the accused to pay. The Commission proposes to retain these features, subject only to the normative guidelines that may be developed for specific offences.
3.3.25 Serious consideration needs also to be given to a formalized system for relating the fine to the ability of the accused to pay. In this regard the so-called unit- or day-fine system is particularly attractive as it presents a model for linking desert and personal circumstances. In this system the seriousness of the offence is reflected in units of days. The accused is then fined an amount that is calculated by multiplying the day-units by their daily income minus deductions for basic needs.[83] The system works well in a number of continental European jurisdictions where sophisticated information on individual income is easily available.
3.3.26 In the discussion paper the Commission doubted whether such a system could be introduced in South Africa. However, the foreign experts, as well as Professor Stephan Terblanche of the University of South Africa, put forward a strong case for the introduction of a simplified unit fine system. It was argued that a unit fine system was particularly important in a framework where the seriousness of the offence was the primary determinant of punishment. Guidelines developed in terms of fine units rather than monetary amounts were held to be inherently more just than guideline fines set in global amounts that did not take the spending power of the offender into consideration.
3.3.27 The Commission accepts these arguments. It finds however, that South African conditions will not easily allow for a day fine system that requires precise knowledge of the daily surplus of each offender. Instead, it recommends that the Sentencing Council create broad means categories to which fine units of a specified value will be related. Sentencers will then have to follow a simple two-step process in setting fines. First, they will have to determine the number of fine units that are appropriate to the offence in terms of the general principles relating to the seriousness of the offence. Thereafter they will have to determine the means category into which the offender falls. The actual fine is set by multiplying the number of fine units with the value of the units set for the relevant means category. In practice, sentencers can be provided with tables to assist them in making these simple calculations.
3.3.28 The Commission recommends the following provisions in relation to fines:
FINES
22. Fines
(1) A fine may be imposed for any offence, unless any law expressly provides that a fine may not be imposed or a relevant sentencing guideline does not provide for it.
(2) In determining an appropriate fine a court must first consider the punishment element of the fine in terms of the seriousness of the offence and then relate this to the means of the person who is being fined.
(3) In establishing the amount of the fine where the Sentencing Council has set the value of fine units for the means categories the court must -
(a) determine the seriousness of the offence in terms of a number of fine units in accordance with the provisions of section 3, or section 5 if there is a relevant sentencing guideline, and record this number;
(b) determine the means category referred to in subsection (4) into which the sentenced person falls and record the level of this category; and
(c) set the fine by way of multiplying the number of the fine units determined in terms of paragraph (a) with the value of the fine unit set for the relevant means category.
(4) The Sentencing Council must set means categories and the value of a fine unit for each such category.
(5) (a) The Sentencing Council must publish by notice in the Gazette the means categories and the value of a fine unit for each such category.
(b) These values become applicable on a date specified in such notice.
(6) This section does not apply to admission of guilt fines determined in terms of sections 57 or 57A of the Criminal Procedure Act.
23. Alternative to a fine
Whenever a court convicts a person of any offence punishable by a fine it may, in imposing a fine, impose any other sentence as an alternative, except that -
(a) the alternative may not be more severe than the punishment that may be imposed for such an offence; and
(b) where the fine is imposed in terms of a sentencing guideline, the court may only impose an alternative sentence allowed by the guideline.
24. Suspension of fines
(1) The implementation of a fine may be suspended in whole or in part for a period not exceeding five years on condition that the person concerned meets one or more of the following conditions:
(a) does community service;
(b) makes reparation; or
(c) complies with a specified condition or conditions referred to in section 33 without being subject to a community penalty.
(2) Where a sentencing guideline has been set for the category or sub-category of offence for which the fine is being imposed the sentence may be suspended only to the extent allowed by the guideline.
25. Amending conditions of suspension of fine
The court that has suspended a fine, whether differently constituted or not, or any other court of equal or superior jurisdiction, may on good cause shown amend or cancel any condition of suspension or add any other competent condition.
26. Failure to comply with conditions of a suspended fine
(1) If any condition imposed in terms of sections 24 or 25 is not complied with, the person concerned may upon the order of any court -
(a) be warned to appear before the court that suspended the operation of the sentence or any court of equal or superior jurisdiction; or
(b) be arrested and brought before such court.
(2) The court that suspended the sentence, whether differently constituted or not, or any other court of equal or superior jurisdiction, must enquire whether the person has failed to meet such a condition and into the circumstances of such failure.
(3) If such court finds that the condition has not been met due to circumstances beyond the control of the person it may act in terms of section 25.
(4) If such court finds that the condition has not been met due to circumstances within the control of the person it may amend or cancel any condition of suspension or add any other competent condition or put the suspended sentence into operation in whole or in part.
(5) When acting in terms of subsection (4) the court must consider the possible partial fulfillment of the conditions of suspension.
27. Payment of fines
(1) Where a person is sentenced to pay a fine, whether with or without an alternative sentence, the court may in its discretion enforce payment of the fine, whether in whole or in part –
(a) by allowing the accused to pay the fine on the conditions and in installments as it deems fit;
(b) if money is due or is to become due as salary or wages from any employer of the person concerned, by ordering such employer to deduct a specified amount from the salary or wages so due and to pay over the amount to the clerk of the court or registrar in question.
(2) The clerk of the court or the registrar may, subject to the approval of a magistrate or judge in chambers, vary the conditions and installments according to which fines are paid.
(3) A court that has acted in terms of subsection (1), whether differently constituted or not, or any court of equal or superior jurisdiction, may on good cause shown reconsider any decision that it has made on the payment of the fine and replace it with a new order authorised by subsection (1).
28. Recovery of fines
(1) Whenever a person is sentenced to pay a fine, the court passing the sentence may issue a warrant addressed to the sheriff or messenger of the court authorizing him or her to recover the amount of the fine by attachment and sale of any movable property belonging to such person.
(2) The amount that may be recovered in terms of subsection (1) must be sufficient to cover, in addition to the fine, the costs and expenses of the warrant and of the attachment and sale in terms of it.
29. Failure to pay a fine
(1) Whenever a court has imposed upon any person a fine without an alternative sentence and the fine is not paid in full or is not recovered in full, the court that passed sentence may -
(a) warn such person to appear before it; or
(b) issue a warrant directing that such person be arrested and brought before the court.
(2) When such person is brought before court the court may impose any other sentence that may have been imposed if the court were considering sentence after conviction, except that the court must take into consideration any part of the fine that has been paid or recovered.
(3) (a) A court that sentences a person to a term of imprisonment as an alternative to a fine, may, where the fine is not paid, at any stage before the expiration of the period of imprisonment, order the release of the person concerned and deal with that person in terms of section 27 .
(b) A court that has acted in terms of paragraph (a), whether differently constituted or not, or any court of equal or superior jurisdiction, may at any time-
(i) further suspend the fine on any existing or additional conditions that the court may regard as expedient; or
(ii) revoke its decision and recommit the person concerned to serve the balance of the term of imprisonment.
3.3.29 Sanctions that are implemented in the community have for some years been key elements in South African sentencing practice. Initially, such sentences were imposed indirectly, primarily as conditions of suspension or postponement of sentences of imprisonment. Since 1991 it has been possible to impose correctional supervision directly as a community based sentence.[84]
3.3.30 The Commission had several intimations in the course of the response to its issue paper on restorative justice that it should consider the expansion of the scope of the community-based sanctions already on offer. In order to assist it in the evaluation of these requests it also conducted further comparative research, This research revealed, not surprisingly, that specific legislative provision was made in other jurisdictions for a wide range of community-based sentences, including participation in victim-offender mediation and family group conferencing, which are prominent forms of restorative justice.
3.3.31 The Commission considered whether the current provisions for correctional supervision in the Criminal Procedure Act could be modified to meet the emerging needs for community-based sentences in South Africa. On the one hand, they are flexible and allow various forms of mediation and compensation to be ordered. On the other hand, this flexibility is a potential problem. It does not give the sentencing court a clear indication of what community sentences should entail. It is also dubious from the point of view of the rule of legal certainty, as the sentencer is not constrained by sufficiently clear rules.[85] It is even more problematic that those responsible for the implementation of the sentence of correctional supervision can manipulate it in such a way that the sentence as served may be significantly different from what the sentencer had intended.
3.3.32 Fortunately, the Correctional Services Act 111 of 1998 has set out to curb some of these abuses by creating a closed list of conditions that could be imposed in community penalties, including correctional supervision. The Commission proposes to build on this legislative initiative. It is of the view that the sentencing option of correctional supervision provided for in the Criminal Procedure Act should be retained. However, its core conditions should be spelt out clearly to ensure that it has sufficient ‘bite’ for a sanction that is part of the guideline system. In addition, the introduction of a closed but more comprehensive list of supplementary conditions that can be combined with correctional supervision will introduce a measure a legal certainty while allowing for conditions specific to the needs of the offender and the community.
3.3.33 As the conditions proposed for correctional supervision are relatively onerous the Commission also recommends the introduction of a further community penalty of community service. Unlike correctional supervision, it will not be combined with house detention. However, the optional conditions that may be set for correctional supervision may also be added to a sentence of community service.
3.3.34 The more detailed provision for the community penalties of correctional supervision and community service will entrench principles of restorative justice in our criminal justice process. Restorative justice represents a way of dealing with victims and offenders by focusing on the settlement of conflicts arising from crime and resolving the underlying problems that caused them. It is also, more widely, a way of dealing with crime generally in a rational and problem-solving way. Central to the notion of restorative justice is the recognition of the community rather than the criminal justice agencies as the prime site of crime control.
3.3.35 In the light of these desiderata the Commission also recommends that the procedure for imposing community penalties be made more flexible. Ideally, comprehensive pre-sentencing reports are required in every case, but the reality is that this is not always feasible, particularly in rural areas. The courts should have the discretion to dispense with some of the details that have been required hitherto. In addition, these reports may be provided by a wider group of competent people than in the past.
3.3.36 The Commission recommends the following provisions in relation to community penalties:
COMMUNITY PENALTIES
30. Community Penalties
(1) A community penalty may be imposed on a person convicted of any offence, unless a law expressly provides that a community penalty may not be imposed or a relevant sentencing guideline does not provide for it.
(2) The community penalties are
(a) correctional supervision; and
(b) community service.
31. Correctional supervision
(1) Correctional supervision requires that the person concerned must be placed under the supervision of a correctional official and subject to house detention and the performance of community service.
(2) The Court imposing correctional supervision must specify –
(a) the period of house detention, which may not exceed three years;
(b) the hours to which the person is restricted daily to his or her dwelling;
(c) the number of hours of community service that the person is required to serve, up to a maximum of 24 hours per month; and
(d) the type of community service to be performed.
(3) In exceptional circumstances correctional supervision may be imposed without a requirement of community service.
32. Community Service
(1) Community service requires that the person concerned perform without remuneration some service for the benefit of the community under the supervision or control of an organization or institution which, or person who, in the opinion of the court, promotes the interest of the community.
(2) The Court imposing community service must specify –
(a) the number of hours per month of community service that the person is required to serve, which may not exceed 1000 hours in total; and
(b) the type of community service to be performed.
(3) A person sentenced to a community penalty may be ordered to contribute to the cost of the penalty.
33. Additional conditions to community penalties
(1) Community penalties may be accompanied by conditions that the person –
(a) is restricted to one or more specified magisterial districts;
(b) lives at a specified ascertainable address;
(c) refrains from using or abusing alcohol or drugs;
(d) takes part in treatment, development and support programmes;
(e) refrains from committing a specified criminal offence or class of criminal offences;
(f) refrains from visiting a specified place;
(g) seeks employment;
(h) takes up and remains in employment;
(i) refrains from making contact with a specified person or persons;
(j) participates in mediation with the victim or in a family group conference;
(k) refrains from threatening a specified person or persons by word or action; and
(l) is subjected to a specified form of monitoring.
(2) Community penalties may not include any condition other than those listed in subsections (1) and (2), but the court may, subject to the provisions of the Correctional Services Act, elaborate on the conditions.
34. Requirements for imposing community penalties
(1) Community penalties may only be imposed after a report by a probation officer, a correctional official, social worker or other person designated by the court to provide a report, has been placed before the court.
(2) A report referred to in subsection (1) must, unless the court rules that it can dispense with one or more of these requirements, contain -
(a) recommendations on the orders and conditions on which the sentence should be imposed;
(b) recommendations on how the conditions can be used to achieve the objectives of the sentence;
(c) the reasons why the accused is a person suitable to undergo a community penalty;
(d) a proposed programme for the person concerned;
(e) the reasons why the person concerned would benefit from the sentence;
(f) information on the family and social background of the person concerned; and
(g) any matter that the court may request the probation officer or correctional official, social worker or other designated person to consider.
35. Change of conditions of community penalties
The court that imposed a community penalty may on good cause shown, on application by the Commissioner or the person serving the sentence, amend or cancel any condition of the penalty or add any other competent condition.
36. Failure to comply with community penalties
(1) If it appears that any condition or order imposed as part of a community penalty has not been met, the person concerned may upon the order of any court -
(a) be warned to appear before the court that imposed the community penalty or any court of equal or superior jurisdiction; or
(b) be arrested and brought before such court.
(2) The court that imposed the community penalty, whether differently constituted or not, or any court of equal or superior jurisdiction, must enquire whether the person has failed to meet such condition or order, and into the circumstances of such failure.
(3) If such court finds that such condition or order has not been met due to circumstances beyond the control of the person it may act in terms of section 35.
(4) If such court finds that such condition or order has not been met due to circumstances within the control of the person it may amend or cancel any such condition or order or add any other competent condition or order or impose any other competent sentence afresh.
(5) When acting in terms of subsection (4) the court must consider the possible partial fulfilment of the community penalty.
3.3.37 The general introduction to this report has already recognized the increased emphasis that should be placed on reparation for the victims of crime in any new sentencing arrangement in South Africa.[86] Reparation covers both restitution and compensation. Restitution, in the narrowest sense, means the restoration of an item of property to its lawful owner. Compensation goes further and encompasses the making good of damage resulting from the commission of a crime.
3.3.38 The proposals set out in this report seek to encourage both forms of reparation. It has been noted, however, that a general compensation scheme for all victims was beyond the scope of the current inquiry and that it was being examined separately. Moreover, compensation linked to pre-trial diversion is also not the subject of an investigation into sentencing. These qualifications aside, there remains much that the sentencing system itself can do in respect of reparation for the victims of crime. The imposition of sentences of which restitution and compensation are elements is one way of intervening for the sake of the victim. In the discussion paper the proposal was that this should be done by way of sentences of community corrections or as a condition of suspension of other sentences. The discussion paper also proposed that restitution and compensation orders be made quite separately from the imposition of sentence.
3.3.39 In the consultation process that followed the publication of the discussion paper there was considerable discussion of these proposals, which were seen as unnecessarily complicated. One of the international experts, Professor Arie Freiberg of the University of Melbourne, in particular, recommended strongly that consideration be given to reparation as a direct sentence. Such a sentence has been mooted in Victoria in Australia.[87] More significantly, it exists, in the form of the compensation order, as a sentence of the court in England, where it has gained widespread acceptance.[88]
3.3.40 This Commission accepted these suggestions for revision. Accordingly, it now proposes a sentence of reparation that must be considered as part of the substantive penalty in every case. Such a sentence is a radical departure, as inevitably it combines elements of what could otherwise be recovered as civil damages with a criminal penalty.[89] The Commission recognizes that, although reparation must be considered in all cases, it will not always be feasible to impose it. It will also require that courts show a degree of flexibility. Courts will be required to balance consideration of the means of the offender with the amount that would be regarded as truly reparative. In order to ensure this flexibility and to allow for jurisprudence on the subject to develop, the provisions relating to reparation are stated in general terms and the possibility is left open for a victim also to proceed civilly to recover any further amount that may be due.
3.3.41 The Commission recommends the following provisions in relation to reparation.
REPARATION
37. Reparation
(1) A sentence of reparation may be imposed for any offence and must be considered in every case.
(2) The court may sentence any person convicted of an offence to make appropriate reparation in the form of restitution and compensation to any victim of the offence for -
(a) damage to or the loss or destruction of property, including money;
(b) physical, psychological or other injury; or
(c) loss of income or support;
resulting from the commission of such offence.
(3) The awards made by regional or district magistrates’ courts in terms of subsection (2) may not exceed a fine that such courts may impose.
(4) In assessing the reparation that a person convicted of an offence may be ordered to pay the court must consider the means of the offender as well as the reparation appropriate for purposes of restitution and compensation.
(5) Where the court finds it appropriate to impose a sentence of reparation or to suspend the sentence on condition of reparation, and the court is considering the imposition of a fine in addition to such an award, but it appears that the person convicted would not have the means to make reparation and to pay the fine, the court must first impose the sentence of reparation or make reparation a condition of suspension and then consider the further sentence to be imposed.
(6) (a) Where a sentencing guideline provides for a fine the court may instead of imposing a fine sentence the offender to making reparation by calculating the seriousness of the offence in terms of fine units and determining the amount of reparation in the same way as a fine is set in terms of section 23, except that the amount must not be more than is appropriate for reparation.
(b) If the amount of reparation is less than the fine that would have been set the court may also impose a fine.
(7) (a) If a sentencing guideline does not provide for a fine a court may nevertheless impose an additional sentence of reparation.
(b) Such reparation may be considered when deciding on sentencing options and in determining sentences within the range of increase and decrease that the guideline may allow, but may not be considered as a ground for departing from the guideline.
(8) Reparation may be imposed on its own or combined with any other sentence, but the overall sentence must reflect the principle of proportionality as contained in section 3.
(9) In cases where the amount of the damage, injury or loss exceeds an award made in terms of subsection (2) an additional civil action may be instituted.
(10) Where a court determines the reparation in terms of this section, it must also determine the time for and the method of making reparation.
(11) Where the victim suffering damage, injury or loss referred to in subsection (2) is not present when sentence is considered, the court may, if it will not cause undue delay, direct that such victim be notified that he or she may attend the proceedings.
38. Payment of reparation
(1) Where a person is sentenced to make reparation, the court may in its discretion enforce the making of reparation whether in whole or in part –
(a) by allowing the accused to make reparation on the conditions and in installments at the intervals it deems fit; or
(b) if money is due or is to become due as salary or wages from any employer of the person concerned, by ordering such employer to deduct a specified amount from the salary or wages so due and to pay over such amount to the clerk of the court or registrar in question.
(2) The clerk of the court or the registrar may subject to the approval of a magistrate or judge in chambers, vary the conditions and installments according to which reparation is to be made.
(3) A court that has acted in terms of subsection (1), whether differently constituted or not, or any court of equal or superior jurisdiction may, on good cause shown, reconsider any decision that it has made on the making of reparation and replace it with a new order authorised by subsection (1).
39. Recovery of reparation
(1) Whenever a person is sentenced to make reparation, the court passing the sentence may issue a warrant addressed to the sheriff or messenger of the court authorizing him or her to recover the amount of the reparation by attachment and sale of any movable property belonging to such person.
(2) The amount which may be recovered in terms of subsection (1) must be sufficient to cover, in addition to the amount of the reparation, the costs and expenses of the warrant and of the attachment and sale in terms of it.
40. Failure to make reparation
(1) Whenever a court has ordered a person to make reparation and such reparation is not made in full or is not recovered in full, the court that passed sentence may-
(a) warn such person to appear before it; or
(b) issue a warrant directing that such person be arrested and brought before the court.
(2) When such a person is brought before court the court may impose such other sentence as may have been imposed if the court were considering sentence after conviction, except that the court must take into consideration any part of the reparation that may have been made or recovered.
3.3.42 The current Criminal Procedure Act does not make direct provision for a caution and discharge as a sentence that can be imposed directly by a court. Instead there is a reference to a caution and reprimand tucked away in s 297(1)(c). (Section 297 is the longest section of the Criminal Procedure Act and deals with “Conditional or unconditional postponement or suspension of sentence and caution or reprimand.”)
3.3.43 The Commission believes that there is a clear need for a sentence to deal with those cases where there has been a conviction but the offender does not deserve any further punishment. Hence there should be a specific provision dealing with a caution and a discharge.
3.3.44 Like any other sentence, a caution and discharge can only be imposed after conviction. This means that in the normal course of events the conviction will be recorded. In some instances this may not be appropriate for an offence that has attracted no substantive penalty. Accordingly, there should be specific provision in the case of a caution and discharge for the court in appropriate instances to order that the conviction not be recorded or, if it is recorded, that it not be recognised as a previous conviction.
3.3.45 The Commission recommends the following provisions in relation to caution and discharge:
41. Caution and discharge
(1) Where the interests of justice will be served by not punishing a person convicted of an offence such person may be cautioned and discharged, and the court may order that the conviction not be recorded or recognised as a previous conviction.
3.4.1 In this chapter the Commission briefly discusses the provisions relevant to sentencing procedures that should be included in the Sentencing Framework Bill.
3.4.2 The procedures that are to be followed after conviction, and the order in which the various submissions are to be made, have largely evolved over time and are prescribed in part by the 1977 Criminal Procedure Act. Immediately after conviction the prosecution may prove previous convictions, if any. Thereafter the defence and the prosecution get the opportunity to address the court on sentence (often by way of ex parte statements from the bar) about issues and facts that are relevant to sentencing. In practice the defence is given the opportunity to address the court first and the prosecution follows. In general, the courts allow the parties considerable leeway in the presentation of evidence and address on sentencing and are not too strict in this regard.
3.4.3 The Criminal Procedure Act contains a number of provisions dealing with previous convictions. The Commission is of the view that similar provisions should be included in the Sentencing Framework Bill and recommends that provision be made for proof of previous convictions, the lapsing of previous convictions, a fingerprint-based register as proof of previous convictions and evidence on further particulars in respect of previous convictions. Of these, the only provision that is potentially controversial is that dealing with the lapsing of previous convictions.
3.4.4 As the focus of this investigation was on sentencing the Commission concentrated only on whether, and if so at what stage, previous convictions should lapse for the purpose of determining sentence. It did not address the larger issue of whether citizens have, or should have, a right to have all records of their previous convictions expunged. For the purpose of sentence there is no doubt that a previous conviction should have less impact if considerable time has elapsed since the punishment was served for the last crime committed. The point at which it should cease to be regarded as having any impact at all is inevitably somewhat arbitrary. The Commission proposes that this period should be set at ten years, that is, ten years must elapse without any further offence being committed after the last sentence has been fully served. If there have not been ten ‘clean’ years of this kind the full record of an ex-offender may continue to be taken into account.
3.4.5 Should the rule that previous convictions must be discounted after ten years (as defined) apply to all offences? Partial exceptions may have to be made for sexual offences or other types of conduct that may recur after a long period. The Commission is of the view that such exceptions should be created by specialised legislation dealing with particular offences rather than in a general framework act.
3.4.6 The Commission recommends that the following provisions relating to previous convictions be included in the Bill:
42. Previous convictions
(1) After a person has been convicted and before sentence is imposed the prosecution may tender a record of previous convictions alleged against such person.
(2) The court must ask the person concerned whether the previous convictions referred to in subsection (1) are admitted.
(3) If the person concerned denies such previous convictions, the prosecution may tender evidence that such person was so previously convicted.
(4) If the prosecution tenders no evidence of a previous conviction the court may, at the request of a victim or of its own accord solicit evidence of such conviction.
(5) If the person admits such previous convictions or such previous convictions are proved, the court may consider them in terms of section 3(4).
(6) Where a period of 10 years has passed from the date of completion of the last sentence and the date of commission of any subsequent offence for which a person is to be sentenced, the last conviction and all convictions prior to that must be disregarded for purposes of sentencing.
43. Evidence relating to proof of previous convictions
(1) When the prosecution seeks to prove previous convictions in terms of this Act a record, photograph or document that relates to a fingerprint and -
(a) which purports to emanate from the officer commanding the South African Criminal Record Bureau; or
(b) in the case of any other country, from any officer having charge of the criminal records of that country,
constitutes prima facie proof of the facts it contains.
(2) The admissibility of such record, photograph or document is not affected by it being obtained against the will of the person concerned.
44. Evidence on further particulars relating to previous conviction
Whenever any court in criminal proceedings requires any particulars or clarification of any previous conviction admitted by or proved against a person, any document purporting to be certified as correct by the officer commanding the South African Criminal Bureau or by any registrar or clerk of any court within the Republic or by any officer in charge of any prison within the Republic and furnishing such particulars or such clarification, is admissible as prima facie proof of the facts contained in it.
3.4.7 The sentencing phase is somewhat different from the rest of the trial. How different it is and to what extent the rules and principles applicable to the trial are still relevant are to a large extent unresolved. Although some principles applicable to the trial still apply at the sentencing stage, for example, the right of the accused to be represented and the rule that evidence should be given under oath, the sentencing phase is different in that this stage is not characterised by the same clinical exercise that is part of determining the guilt of the accused. There are no fixed issues and formal evidential burdens. Facts are less important while impressions assume more significance. Considerations such as motive, which are irrelevant at the trial stage, are now much more important and relevant. Because of the nature of sentencing, the sentencing phase requires a much more flexible approach and it should not be hampered by rigid evidentiary rules. In addition, the sentencing phase requires a much more active role by the presiding officer, which is more consistent with an inquisitorial approach than an adversarial one.
3.4.8 Section 274 of the Criminal Procedure Act provides that a court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed. The accused may address the court on any evidence received under this section as well as on the matter of the sentence. Thereafter the prosecution may likewise address the court. This provision places the court at the centre of the sentencing stage and it distinguishes between receiving evidence on the one hand and the address by the parties on the other. The sentencing discretion can only be properly exercised on the basis of all the facts relevant to the matter. The court has to decide which evidence has the potential to provide the necessary information and the court has the discretion to allow such evidence. Only then will the court be in a position to form correct impressions and make the complex value judgment that is required for the imposition of an appropriate sentence. If the necessary information is not forthcoming from the parties, the court is required to obtain that information in order to be able to pass an appropriate sentence.[90]
3.4.9 Prior to the amendment of section 277 of the Criminal Procedure Act,[91] there was no onus on either party at the sentencing phase, with the exception of the onus on the accused to prove extenuating circumstances following a murder conviction.[92] Following the amendment of section 277 in 1990 the Appellate Division held in S v Nkwanyana[93] that when the sentence of death was a competent verdict, section 277(2) required the state to prove aggravating factors and disprove the existence of mitigating factors beyond a reasonable doubt. Section 277 has subsequently been repealed as the death penalty has been found to be unconstitutional.[94] Du Toit et al. argue that there is no reason why the standard of proof stipulated in Nkwanyana should not be applied at the sentencing phase in respect of other offences.[95]
3.4.10 There are two possible constitutional grounds that can be used in support of the argument of Du Toit and his colleagues, viz. the right to be presumed innocent and the right to freedom and security of person. Chief Justice Lamer noted in the Canadian case of R v Pearson[96] that the presumption of innocence as a rule requiring proof of guilt beyond a reasonable doubt did not apply at the sentencing phase; however, it did apply as a component of fundamental justice. Logically the presumption of innocence cannot be applied as a rule requiring proof of guilt beyond reasonable doubt at the sentencing phase as guilt has already been proved. It is equally difficult to see how the presumption of innocence can be applied as a principle of fundamental justice as there is no justification for continuing to assume innocence.
3.4.11 As Schwartz[97] observes, there is a distinction between procedures applied in proving criminal liability and the less formal procedures in determining sentence. This, he says, is because “conviction is the basic determination that the defendant has forfeited his freedom and subjected himself to dispositions society makes for its own protection. Sentencing is an altogether different matter”.[98]
3.4.12 However, whilst the presumption of innocence may not apply at the sentencing phase, this does not mean that other societal interests do not require the prosecution to prove disputed facts beyond a reasonable doubt. In the South African case of S v Shepard,[99] Colman J referring to the application of the reasonable doubt rule at the sentencing phase, stated:
To an accused person the sentence is at least as important as the conviction, and it might seem, in a sense, anomalous to give him the benefit of all reasonable doubts before finding him guilty, and then, when dealing with a question which may make a vast difference to his sentence, to place an onus on him so that the Court, if it finds the probabilities equally balanced in relation to some mitigating factor, will punish him as if that fact did not exist.[100]
3.4.13 The Canadian Supreme Court in R v Gardiner,[101] in holding that disputed facts relevant to sentencing should be proved beyond a reasonable doubt by the prosecution, quoted the following passage with approval: “[B]ecause the sentencing process poses the ultimate jeopardy to an individual ... in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process.”[102] Consequently, it is possible to argue that the right to freedom and security of person requires that an onus be placed on the State at the sentencing phase at least in respect of establishing the presence of aggravating factors and the absence of mitigating factors. Another approach may be to consider the sentencing stage as a stage of the trial where the ordinary rules of evidence and argument do not necessarily apply. The function of the judicial officer would then be to conduct an investigation into the matter in which case it will no longer be party driven. It should be pointed out that the Court in Gardiner also stated that the strict rules that govern evidence at trial do not apply at a sentencing hearing, and, more particularly, that the hearsay rule does not govern the sentencing hearing: "Hearsay evidence may be accepted where found to be credible and trustworthy."[103] Thus, it appears that, although the Crown must prove disputed circumstances beyond a reasonable doubt, such proof may be met by the use of hearsay evidence,[104] although there is some dispute on the issue at least as regards the voluntariness rule in respect of a statement made to a person in authority.[105]
3.4.14 The decision to grant or refuse bail to an accused is in many ways similar to that of imposing a sentence. Decisions on the onus of proof during bail proceedings are therefore relevant to the issue of onus at the sentencing stage. According to S v Mbele,[106] when section 25(2) of the Interim Constitution came into operation, it was widely accepted that the State had the onus of proof in bail applications. This, according to Leveson J, was wrong and, according to Stegmann J, a revolutionary step. Both judges felt that section 25(2)(d) of the Interim Constitution was never intended to influence a long-standing procedure that the accused had the onus of proof. According to Edeling J in Prokureur-Generaal, Vrystaat v Ramokhosi[107] it was obvious that anybody who wants to claim that the arrested person should be held without bail will not succeed if the court does not or cannot find that the interests of justice require such further incarceration. In this sense there was an onus on the State. This onus was not, however, an onus in the strict sense of the word. In Prokureur-Generaal van die Witwatersrandse Plaaslike Afdeling v Van Heerden[108] Eloff JP found that there was no onus in bail proceedings. This was supported by the majority in Ellish v Prokureur-Generaal, WPA,[109] who found that whether the interests of justice in the context would be promoted or not could not be ‘proved’, as it involved a value judgment. To speak of an onus of proof ignores this fact. The conclusion therefore is that onus should not be a factor in determining how bail decisions are best made. The same conclusion may be reached in respect of a decision on sentencing.
3.4.15 It is clear that a quasi-inquisitorial approach prevails during the sentencing stage. In the view of the Commission it is therefore inappropriate to refer to a burden of proof in the strict sense during the sentencing stage (which means that the party who alleges bears the onus of proof, either beyond a reasonable doubt or upon a preponderance of probabilities). It should, however, be noted that at the sentencing stage the court has to rely on findings and to make a value judgment based on those findings. In order to be able to do that the court must make factual findings. If the court is not satisfied that a particular fact exists, that fact cannot be used against the accused in the sentence imposed. In practice this would mean that the State has to prove the existence of an aggravating fact if the State wants the court to rely on it. For the same reason, if the court is not satisfied that a mitigating fact exists, that fact cannot be used in favour of the accused and again it would mean that in practice the defence should prove the fact on which it wants the court to rely. However, since it is the court’s duty to determine the proper sentence and the evidence that is fit for this purpose, one cannot state categorically that the State or the defence bears the onus of proof with regard to a particular fact. In practice the problem is resolved by requiring the party who alleges to carry the burden of proof, but one cannot, because of this, conclude that either the State or the defence carries the burden of proof at the sentencing stage. What is certain is that the court must make factual findings at the sentencing stage and, in order to do just that, it must use some standard of proof. It is submitted that the standard of proof at the sentencing stage should be “if the court is satisfied”.
3.4.16 The Commission recommends that the following provision be included in the Sentencing Framework Bill:
45. Evidence on sentencing
(1) A court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the appropriate sentence.
(2) The court must allow the offender and the prosecutor to call witnesses or to adduce evidence relevant to sentencing and may itself call witnesses or adduce evidence.
(3) The court must assist an undefended offender to place facts relevant to sentence before the court.
(4) If witnesses are called the provisions of sections 162, 163, 164, 165, and 166 of the Criminal Procedure Act apply.
(5) Before passing sentence the court must allow the offender and the prosecutor to address it on any relevant evidence and the appropriate sentence.
(6) Any fact relevant to the determination of an appropriate sentence must be proved to the satisfaction of the court.
3.4.17 Both a fine and reparation ideally require detailed information on the financial circumstances of the offender. Often it will be forthcoming from an offender who would prefer a financial penalty. Where such information is not forthcoming the court may require additional powers.
3.4.18 The Commission recommends the following provisions in relation to financial evidence:
46. Financial evidence
(1) The court may enquire into the financial position of a person convicted of any offence, where it is relevant to the imposition of sentence.
(2) Such inquiry may include -
(a) consideration of the employment, earning ability and financial resources and assets of such person at present or in the future, including any circumstance that may affect his or her ability to make reparation; and
(b) information about any benefit, financial or otherwise, derived directly or indirectly, as a result of the commission of the offence.
(3) (a) The court may require such person to disclose to the court orally or in writing particulars of his or her financial circumstances in the manner and form the court deems fit.
(b) Such information may not be used for any other purposes.
(4) The court may require that a written report be placed before it containing information concerning the financial status of the person convicted.
3.4.19 In addition to the general rules on evidence at the sentencing stage the focus on the rights of victims of crime requires that special attention be paid to evidence from victims. A first step in this regard is to consider the role of the prosecution in sentencing, as often the prosecutors must represent the concerns of victims. Clearly a legislative duty may be placed on prosecutors to take this aspect of their role seriously.
3.4.20 Of equal importance is that victims should be given a voice at the sentencing stage of proceedings. They may testify directly but this may not be practical and desirable in all cases. An important question is whether they should be allowed to do so indirectly by means of so-called victim impact statements. The need to legislate for victim impact statements was considered in some detail in the Issue Paper on Restorative Justice.[110] For purposes of this discussion it will not be repeated. The question here is whether legislation should provide for the admissibility of such statements and, if so, to what extent it should be regulated.
3.4.21 A victim impact statement is a statement made by the victim and addressed to the presiding officer for consideration in the taking of sentencing decisions. A victim impact statement consists of a description of the harm, in terms of the physical, psychological, social and economic effect that the crime had, and will have in future, on the victim.[111] Sometimes this statement may include the victim’s statement of opinion on his or her feelings about the crime, the offender and the sentence that the victim feels is appropriate.
3.4.22 A victim impact statement usually takes the form of a written statement that is presented to the court as part of the pre-sentence report. It can, however, also take the form of an oral statement by the victim during sentencing.
3.4.23 The form, content and means of implementation vary greatly. In the United States of America, for example, some jurisdictions require a written victim impact statement attached either to the pre-sentence report or as an affidavit that becomes part of the court file. Responsibility for the preparation of a victim impact statement can rest with criminal justice personnel, like the prosecutor, police or probation officer, or with an independent outside organisation like victim service specialists. Victims may also, or in some cases only, provide oral information in court prior to sentencing.[112] A victim impact statement may include objective information or both objective as well as subjective evaluations of injury, including psychological harm suffered by the victim.[113]
3.4.24 Having regard to the legal position in comparative jurisdictions, the neglected position of victims of crime in South Africa and the comments received on the Issue Paper the Commission concludes that there is sufficient justification for the inclusion of a provision in the Sentencing Framework Bill, which will formally recognize the use of victim impact statements at the sentencing stage of a trial. Some safeguards against an offender being prejudiced by a victim impact statement that is inaccurate are required, however. For this reason the Commission believes that where a victim impact statement is challenged it should not be admitted as evidence unless the victim testifies in support of it.
3.4.25 The Commission recommends the inclusion of the following provision:
47. Evidence relating to the interests of victims
(1) The prosecution must, when adducing evidence or addressing the court on sentence, consider the interests of a victim of the offence and the impact of the crime on the victim and, where practicable, furnish the court with particulars of -
(a) damage to or the loss or destruction of property, including money;
(b) physical, psychological or other injury; or
(c) loss of income or support.
(2) A victim impact statement may be made by a victim who, as a result of an offence, suffered damage, injury or loss as referred to in subsection (1), or by a person nominated by such victim.
(3) The prosecutor must seek to tender evidence of a victim impact statement where the victim is not called to give evidence and such a statement is available.
(4) If the contents of a victim impact statement are not disputed a victim impact statement is admissible evidence on its production.
(5) If the contents of a victim impact statement are disputed, the victim must be called as witness for the statement to be taken into account by the court.
3.4.26 The Commission is also of the view that provision should be made for the victim to be informed that in particular circumstances he or she has the right to make an input at the parole hearing concerning the eventual release of an offender from prison.
3.4.27 The Commission therefore also recommends the inclusion of the following provision in the draft Bill:
48. Victims and release from prison.
(1) Where a person has been convicted of an offence involving violence against another person and is sentenced to an unsuspended term of imprisonment of two years or more, the court must explain to any victim of the crime, including the next of kin of a deceased victim, that they may inform the Commissioner that they wish to be notified of any hearing of a Correctional Supervision and Parole Board where the conditional release of such offender is being considered, so that they may make representations on the risks that such release may hold.
(2) Where a victim is incapable of informing the Commissioner as contemplated in subsection (1) the information may be conveyed by a representative of the victim.
(3) If the victim or a representative referred to in subsection (2) intends to make such representations to the Correctional Supervision and Parole Board, such person must inform the Commissioner of this intention and keep the Commissioner informed of any change of address.
3.4.28 The emphasis on truth in sentencing, which is a hallmark of the new partnership on sentencing, is reflected in specific requirements about what every sentencing judgment must contain in addition to a formal statement of the sentence being imposed:
Ideally, reasons should be given for every sentence and the legislation should encourage this. In practice, it may not always be possible. However, legislation should insist that any departure from sentencing guidelines be justified.
Community sentences should be explained in the judgment of the court, for the benefit of both the offender and community.
To ensure that reparation is considered, a note to this effect is required in every judgment.
The court should comment specifically when it wants some factor in the sentence considered by a parole board or similar authority. Such a body cannot retry a case to determine the seriousness of the offence, as that would amount to the offender being placed in a form of double jeopardy. Nevertheless, it should act on an informed view of the decision of the court and, in particular, on any information that the sentencing court thinks may be relevant to a prognosis on the release of the offender.
3.4.29 The Commission recommends the following provision on the sentencing judgment:
49. Sentencing judgment
Every judgment on sentence must include:
(a) the sentence imposed;
(b) the reasons for sentence where there is a departure from a sentencing guideline and wherever practicable in all other cases;
(c) in the case of a community penalty, a brief explanation of the implications of the sentence;
(d) a note that reparation has been considered as required by section 37; and
(e) any comments that the court may wish to bring to the attention of the authorities responsible for the release of a person sentenced to imprisonment.
3.4.30 Current South African law does not allow for the backdating of sentences of imprisonment to the time that someone was first taken into custody. Only if a new sentence of imprisonment is imposed on appeal to replace an earlier sentence of imprisonment