Vol. 418, No. 21115, 28 April 2000
GENERAL NOTICE
Notice 1684 of 2000
SOUTH AFRICAN LAW COMMISSION
DISCUSSION PAPER 91: A NEW SENTENCING FRAMEWORK
The Working Committee of the Commission recently approved the publication of Discussion Paper 91 for general information and comment. The Discussion Paper deals with a new sentencing framework for South Africa and contains recommendations on the enactment of a new Sentencing Framework Act.
The Commission accepts that there is substance to the criticism of the sentencing system that has been advanced in the past decade, both before and after the introduction of the 1997 Criminal Law Amendment Act. An ideal system should be seen to promote consistency in sentencing, deal appropriately with concerns that particular offences are not being regarded with an appropriate degree of seriousness, allow for victim participation and restorative initiatives and, at the same time, produce sentencing outcomes that are within the capacity of the State to enforce in the long term. The Commission therefore proposes a framework that in its view can meet all these desiderata to the greatest extent possible.
Such a framework will require the co-operation of the different branches of government. A single branch cannot solve the problem on its own. Reform proposals should combine, as far as possible, the advantages that may be derived from the involvement of all three branches of government in the sentencing process and eliminate the disadvantages inherent in giving a single one of them priority. In the model that the Commission proposes, sentencing decisions will continue to be made by the courts, but these decisions will be informed by new initiatives from the legislative and administrative branches that will meet the need for consistency, as well as for sensitivity to the seriousness of offences, the needs of victims and the capacity of the system to carry out sentences that have been imposed.
A NEW PARTNERSHIP
The key recommendation of the Commission is that the different arms of government enter into a new partnership on sentencing. To limit sentencing disparities there must be more guidance for the courts on sentencing. In the first instance this will take the form of more specific guideline judgements and of normative sentencing guidelines. The Supreme Court of Appeal will give the guideline judgements in the course of the normal appellate process. These judgements will set guidelines in the light of principles developed by Parliament in legislation and information provided by a new Sentencing Council on sentencing patterns, the efficacy of various sentences and the capacity of the State to implement such sentences. The judiciary, key criminal justice departments, sentencing experts, and civil society through representatives of victims' organisations will be represented on this Council.
The Sentencing Council will be able to develop normative guidelines for categories of crime for which the Supreme Court of Appeal has not set guidelines. In addition the Sentencing Council will have to collect and publish comprehensive sentencing data on an annual basis. The Council would have to do research and publish reports on the efficacy and cost effectiveness of the various sentencing options provided by legislation and make policy recommendations on the further development of community corrections in particular.
The proposed combination of sentencing guidelines set by the courts with a Sentencing Council would have important structural advantages:
- The guideline-setting function of the Supreme Court of Appeal will retain a key role for the senior judiciary in sentencing decision-making, while provision for the Court to have placed before it information provided by the Sentencing Council would allow it to take into account factors that cannot normally be entertained when single cases are considered in isolation.
- The Sentencing Council set up in the way proposed will have the advantages of a sentencing commission in the sense that it would be able to take an overall view of the entire system and make recommendations based on requirements of principle in that light. Its information function will also be important, both in assisting the courts and in shaping public perceptions about the reality of sentencing options.
- The Sentencing Council will not be isolated from public opinion as it will have a duty to consult widely. In addition, both cabinet ministers and Parliament would be able to ask it directly to consider the development of guidelines for a category of offences that the public might regard as not being treated with the appropriate degree of seriousness.
A new sentencing framework requires not only a new partnership amongst the different arms of government. It requires also a new partnership between the State and the public in general and victims of crime in particular. The key to this partnership is improved provision for victim involvement in the sentencing process and recognition of victim concerns in the type of substantive sentences that are handed down.
At a substantive level, explicit attention is given to restitution and compensation for victims of crime. Restitution and compensation are key elements of the comprehensive new sentence of community corrections, which also allows victims to benefit from other orders such as community service by the offender and victim-offender mediation. Sentences may also be suspended on condition of restitution or compensation for victims of crime. In every case where neither of these sentences is imposed the court must consider whether a separate restitution or compensation order should be made.
The procedural innovations designed to benefit victims of crime include a requirement that prosecutors, when they intervene on sentence, must consider the interests of victims in every case. There is provision for victim impact statements to be presented to the courts so that they may learn what impact the crime had in practice. Victims must be told when and how they may be involved in the eventual release of sentenced offenders from prison. These innovations are backed by detailed rules to ensure that victims are told of their rights. There are also provisions to ensure that the income of offenders is revealed so that they can be ordered to make reparation for their crimes in an appropriate way.
The various changes that are proposed will be combined in a new piece of legislation, the Sentencing Framework Act. The Commission is putting forward a draft proposal for such a new Act. The new legislation will contribute to legal certainty by bringing together in one easily accessible law all the provisions dealing with the imposition of sentence. The general principles applicable to sentencing will be clearly stated. The publication of normative sentencing guidelines will simplify the task of the courts, thus contributing to speedy and effective justice and ensuring that offenders know what to expect. Simplified procedural rules will make it clear to the public what is happening in the sentencing process and encourage public participation in the administration of justice.
The Commission invites the comments of all parties who feel that they have an interest in the topic or may be affected by the measures discussed in the Discussion Paper. Individuals, organisations and institutions affected by the provisions of the proposed Sentencing Framework Act or who are likely to be affected by possible amendments to existing legislation should participate in this debate and are invited to indicate how the present law affects them, what their concerns are, what solutions they are able to propose and whether there are other issues and/or options affecting the law that must be explored.
Based on the outcome of these comments and discussions, a report containing the Commission's final recommendations will be prepared and presented to the Minister of Justice.
It would be appreciated if written comments or suggestions could reach the Commission by 31 May 2000 at the address given below.
Correspondence should be addressed to:
The Secretary
South African Law Commission
Private Bag X 668
PRETORIA
0001e-mail: wvvuuren@salawcom.org.za
Telephone: (012) 322-6440 (Mr W van Vuuren)
The discussion paper will be made available on the Internet at the following site: http://www.law.wits.ac.za/salc/discussn/discussn.html