Criminal Law (Sentencing) Amendment Bill [B15-2007]: Department briefing

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
12 June 2007
CRIMINAL LAW (SENTENCING) AMENDMENT BILL [B15-2007]:DEPARTMENT BRIEFING

Chairperson: Ms F Chohan-Khota (ANC)

Documents handed out:
Criminal Law (Sentencing) Amendment Bill
Memorandum on the Objects of the Bill: Department of Justice
Criminal Law Amendment Act 105/1997
Brief Analysis of two judgments of Supreme Court of Appeal on interpretation and constitutional validity of Section 51 and 52
Briefing Note on the Bill: Department of Justice

Relevant Business Day news articles (see Appendix)

SUMMARY
The Department of Justice briefed the Committee on the objects, main clauses and changes effected by the Criminal Law (Sentencing) Amendment Bill, which would address the discretionary minimum sentencing procedures set out in the Criminal Procedure Amendment Act of 1977. The Department gave a brief background to the principles behind discretionary minimum sentences, and indicated that the present legislation would apply until 1 May 2009. The Constitutional Court had confirmed the validity and interpretation of the relevant Sections 51 and 52. The Bill therefore sought to repeat those principles while addressing a number of practical problems.

The changes were in seven main categories. There was a repeal of Sections 52, 52A and 52B relating to the referral process from regional to high courts for imposition of life sentences. Section 51(1) would be amended to allow a regional court, only in relation to offences under Part 1 of Schedule 2 of the Act, to impose life imprisonment. This was coupled with an amendment to Section 309 of the Criminal Procedure Act of 1977 to provide for an automatic right of appeal by a person sentenced to life imprisonment by a regional court. The automatic right of appeal for children under eighteen was being adjusted to give greater protection for children. Section 21 of the National Prosecuting Authority Act would be amended to state that the National Director of Public Prosecutions must adopt policy directives to specify which prosecutions must be instituted in the high and regional courts.

The list of the "substantial and compelling" circumstances that would justify the imposition of a sentence lower than the minimum sentence was limited. The previous sexual history of the complainant, the accused's cultural or religious beliefs about rape, or any prior relationships between the parties prior to commission of the offence would not be regarded as "substantial and compelling" circumstances.

Section 51(3)(b) was repealed, so that discretionary minimum sentences could no longer be imposed on a child between 16 and 18 years old. Section 51(4) would be repealed and the judicial officer, in calculating the sentence, could take into account periods spent in jail awaiting trial. For less serious offences under Section 51(2)(c), up to half of the sentence could be suspended. The "sunset clause" relating to the time periods for the minimum sentencing legislation to apply were no longer required. The Bill contained clauses for transitional provisions.

Questions by members related to the policy directives to be drawn by the National Prosecuting Authority, the "substantial and compelling" circumstances, the need to reinforce the seriousness of any rape, including marital rape, the need to re-examine the "add-on" provisions in respect of firearms, the need for the Department to consider some of the submissions and research by non-government organisations, the motivation for the automatic right of appeal where regional courts imposed life sentences, and the possibility of increased pressure on the regional courts. It was noted that public comments had been invited and these submissions would be considered in due course.

MINUTES
Criminal Law (Sentencing) Amendment Bill [B15-2007]: briefing by Department (DOJ)
Dr Lirette Louw, Legislation Division, Department of Justice, tabled the documentation prepared by the Department as a background to the Bill. She stated that the Criminal Law Amendment Act 105 of 1997 had abolished the death penalty and created a legal regime of discretionary minimum sentences for certain serious offences. The latter part of the Act was now colloquially referred to as the "Minimum Sentences Act".

Discretionary minimum sentences were provided for in respect of a limited number of serious and defined offences. The presiding judicial officer had a discretion to impose a sentence lower than the prescribed minimum sentence if satisfied that substantial and compelling circumstances existed that would justify the lesser penalty. Despite the popular misconceptions the sentences were not therefore absolutely mandatory and the final discretion still lay with the judicial officer. The Constitutional Court had confirmed that Section 51 "has limited but not eliminated the Courts' discretion in imposing sentence in respect of (these) offences...".

Section 52(1) of the Act provided that where a regional court had convicted an accused of an offence in Parts I-IV of Schedule 2 and the court was of the opinion that the offence merited a more severe punishment than the regional court had the jurisdiction to impose, then the matter must be referred to the High Court for sentencing. Complex referral procedures had developed over the years for this process. Section 51 (4), as presently worded, said that the sentences applied from the date on which the sentence was passed. Section 51(5) stated that no portion of a discretionary minimum sentence could be suspended.

In terms of Section 53(1) the minimum sentencing provisions were to run for two years, and could be extended for further periods of two years. The operation of the provisions was extended on 1 May 2007 for two years, until May 2009, to allow Parliament to consider and pass the Criminal Law (Sentencing) Amendment Bill (the Bill). The Constitutional validity of sections 51 and 52 had been tested and both sections were upheld.

Although constitutionally valid, there were problems in the application of these sections, and the DOJ had therefore considered input from various stakeholders to try to address the problems in the drafting of the Bill, while seeking to confirm the principles of the Act.

There were seven main areas addressed in the Bill. The first related to the repeal of the referral process between regional and high courts. An amendment to Section 51(1) would permit a regional court, only in relation to offences under Part 1 of Schedule 2 of this Act, to impose life imprisonment. However, this was not a stand-alone provision. Since it could impose the higher sentence, there was no longer any need to refer the matter to the High Court. Sections 52, 52A and 52B therefore were to be repealed. Section 309 of the Criminal Procedure Act of 1977 would be amended to provide for an automatic right of appeal by a person sentenced to life imprisonment by a regional court.

Dr Louw pointed out that at the same time the automatic right of appeal for children under 18 was being adjusted to give greater protection for children.

The third consequence of this amendment was that Section 21 of the National Prosecuting Authority Act (NPAA) must be amended to state that the National Director of Public Prosecutions must adopt policy directives to specify which prosecutions must be instituted in the high and regional courts.

The second major change related to the "substantial and compelling circumstances" that would justify the imposition of a sentence lower than the minimum sentence. A number of stakeholders, in particular women's interest groups, had submitted that the "substantial and compelling" circumstances accepted by the courts in the past were often objectionable. It was therefore decided that in respect of rape offences, the "substantial and compelling" circumstances could not include the previous sexual history of the complainant, the accused's cultural or religious beliefs about rape, or any prior relationships between the parties prior to commission of the offence.

The third change related to the repeal of Section 51(3)(b). Previously a discretionary minimum sentence could be imposed on a child between 16 and 18 years old, if the reasons for the decision were entered on the record. However, due to difficulties in interpretation, particularly following the Brandt judgment, it was decided to repeal this section.

Section 51(4) of the Act was also to be repealed. The judicial officer would, when imposing the sentence, be able to take into account periods that the accused had already spent in jail awaiting trial.

The current Act stated that a discretionary minimum sentence could not be suspended. This was retained in respect of serious offences under Sections 51(1), 51(2)(a) and (b), but the Bill now provided that for less serious offences under Section 51(2)(c) up to half of the sentence could be suspended.

The sixth change related to Section 53, dealing with the two-year "sunset clauses" relating to the operation of the Act. The principles behind Sections 51 and 52 had been judged by the Constitutional Court as constitutionally sound. For this reason, and because the relevant sections would in any event be replaced by the passing of the Bill, this clause had become redundant.

Lastly the Bill catered for transitional provisions. Where at the time of passing of the Act an accused had been committed for sentence to the High Court, but the High Court had not heard the matter, it would be referred back to the regional court for sentencing. If the matter had been referred and heard by the High Court, then the High Court must finalise the matter.

Discussion
Ms S Camerer (DA) asked whether the policy directives to be drawn by the National Prosecuting Authority had been canvassed yet with them, and whether there was yet any indication of the kind of cases that would be sent directly to the High Court.

The Chairperson suggested that the directives would have to be looked at together with the clauses relating to automatic rights of appeal. The NPA would have to decide to what cases it would like to have an automatic right of appeal attached, and this would then determine where they should be prosecuted. She would imagine that the NPA probably had not considered this yet.

Dr Louw said that the policy directives would have to be approved by Parliament and they would therefore be tabled before the Committee. Most prosecutions attracting a minimum sentence were already initiated in the High Court, and that would probably form the basis of the policy.

Adv L Joubert (DA) referred to the compelling and substantial circumstances that would justify the imposition of a sentence lower than the minimum sentence. He wondered if the prior relationship between husband and wife, where there was a charge of rape, should not still be retained as a mitigating circumstance.

The Chairperson indicated that there was not general agreement with this suggestion. She pointed out that the analyses undertaken of the cases in which there had been departure from minimum sentences had shown broad discretions and interpretations. That had been the problem. She indicated that if there had been a prior relationship between accused and complainant, and a charge of rape was laid, the issue turned on the fact of consent.

Adv Joubert said there were some cases where the Court took into account a relationship. He felt that if there was an intimate relationship there were grounds for arguing that the situation would be different.

The Chairperson and other members did not agree. The existence of a prior relationship meant that the factual findings of the Court would be called into question. Part of the problem was that many people in South Africa regarded marital rape as a "lesser" rape. She felt that there was a clear need to reverse the perception that a person saying "no" could mean "yes", and that consent did not exist in these cases.

Ms Camerer pointed out that the concept of marital rape was accepted in 1993 only after a long and bitter battle on the part of women's rights groups, and there was no way in which the principles should be weakened.

The Chairperson agreed and said that previously the sexual history of a woman was taken into account, but given the horrific nature and extent of the crime in South Africa this could no longer be accepted.

Adv Joubert hastened to add that he was not suggesting in any way that rape could be condoned, but merely that it was very difficult to disregard a prior relationship.

The Chairperson took his point, but stressed that the "substantial and compelling" circumstances could not be found on the basis of the prior relationship alone. There would have to be other circumstances.

Dr Louw added that the S v Abrahams case of 2002 contained some useful pointers. She noted that the Supreme Court of Appeal, in overturning Judge Foxcroft's sentence in a matter where the accused had raped his own daughter, had made the point that the court could not look only to the prior relationship.

Mr S Swart (ACDP) indicated that the relationship could extend to any close family relationship, and fully supported the new provisions limiting the "substantial and compelling" circumstances.

The Chairperson noted that the extension of the sentencing jurisdiction of the Regional Court pertained only to convictions under these sections, and was not an increase in general jurisdiction.

Mr Johan de Lange, Legislation Division, DOJ, added that the regional court could already impose a 15-year sentence, and in practice the difference between this and a life sentence was not so large.

Mr Swart asked if the provisions would result in any reduction in sentencing, and if there were likely to be more lenient sentences.

The Chairperson said that the provisions were largely intended to address the practical problems. When the Regional Court had needed to refer matters for sentencing to the High Court, particularly rape matters, the complainant was put through the added trauma of having to testify twice. The Bill would rectify this problem. The Bill also provided for automatic right to appeal and the rationale was that the increase in jurisdiction would be balanced by the automatic right to appeal. Further alterations referred to the suspension of sentence for certain "lesser" crimes such as kidnapping or arson, although this would not apply to the more serious offences listed under parts I-IV. not those specified in Sections 51(1) and 51(2)(a) and (b).

The Chairperson said as an aside that the Department should look at the "add-on" provisions in relation to firearms, as these did not always make sense. One could not perpetrate fraud with a firearm. She asked the department therefore to tidy up the references and possibly consider putting the references to firearms in a separate clause, and make it clear that this would have a bearing on the more serious crimes.

Mr de Lange noted that if a person had been in detention for a long period awaiting trial, the court could take that into account when calculating the total sentence still to be served.

Dr Louw added that the Act had not previously applied to under 16 year-olds, but the minimum sentences would now not apply to under-18 year-olds in respect of the lesser crimes.

Ms Camerer wondered if this would lead to lower sentences. She commented that she had recently been told by a prison reform specialist that statistical data indicated that since the minimum sentencing legislation came into effect the courts had tended to impose heavier sentences, and this was given as one of the reasons for the growth in the number of prisoners. She said it would be interesting to see the data.

The Chairperson believed that the statistics could not necessarily establish a direct link. She pointed out that people were not in prison because of the minimum sentencing legislation, but because of the crimes they had committed. There was a need to examine the trend of crimes and the severity of offences committed. She agreed that it would be useful to see the study, but warned of the need to exercise caution. These points would no doubt be canvassed during the public hearings.

Mr C Burgess (ID) wondered what was the motivation for the automatic appeal.

The Chairperson said that the provision that the regional court could pass life sentences amounted, although in a limited range of cases, to an increase in their jurisdiction. The jurisdiction of the regional court was not inherent, and the Committee, when considering increases in jurisdiction before, had been worried that this could create problems. The referral to the high court for sentencing was a balance, but it had created practical problems. The automatic right to appeal, coupled with the NPA policy, would now be the balancing mechanism to the increase in jurisdiction. If the NPA did not want the automatic right of appeal to apply, then the case would be brought in the high court. Juveniles, on the other hand, would probably be prosecuted in the Regional Court. That would be up to the NPA to assess and decide.

Adv Joubert asked for an indication of the differences in jurisdiction that remained.

The Chairperson reminded him that the overall jurisdiction of the regional courts to impose sentences up to 15 years was not affected. There was only a change insofar as these specific crimes were concerned. If a matter was prosecuted in the High Court, and resulted in a conviction only on a kidnapping charge (a lesser offence) then the High Court could still sentence to life imprisonment, because it had inherent jurisdiction. If the same matter had been prosecuted in the regional court, the jurisdiction would be limited and the regional court could not give a higher sentence. Its jurisdiction would only be increased for certain offences specified in the Bill.

The Chairperson thanked the Department for such comprehensive documents, including the analysis of the different case law. She indicated that public comment had been called for, and the submissions would be considered in due course. She indicated that it would be useful also for the DOJ to consider, and perhaps extract other categories from, the research carried out by the NGOs.

Ms Camerer wondered if the department had considered if there might be increased pressure on the Regional Courts.

The chairperson thought that probably most of these cases were in any event presently prosecuted in Regional Court. She hoped that the NPA would prosecute more cases in the High Court, to try to avoid the secondary traumas imposed on witnesses; when they had previously raised this as a concern the Committee had suggested that more cases should be instituted in the High Court.

The Chairperson noted that on the following day the Committee would consider the proposed changes to the wording of some clauses in the Regulation of Interception of Communications and Provision of Communication –Related Information Amendment Bill.

The meeting was adjourned.

Appendix:

CAPE TOWN — Contentious minimum sentences are set to become a permanent feature with the tabling of legislation to give regional courts the power to impose life sentences.

Jurists have criticised minimum terms for taking sentencing discretion from judges though they are common in some countries. Long minimum terms for serious violent crimes have been blamed for increased overcrowding in prisons.

At present the minimum sentencing regime comes up for review every two years. The Criminal Law (Sentencing) Amendment Bill now before Parliament’s justice committee scraps that provision.

The minimum sentencing law, enacted in 1997, contained minimum sentences for murder, rape, hijacking and drug trafficking. Judicial officers had to impose these sentences unless they found substantial and compelling circumstances to impose lesser sentences.

But the bill narrows this discretion for judicial officers, particularly in rape cases.

Until now the law has provided that a serious criminal matter warranting a minimum sentence and being heard by a regional court would have to be referred to the high court for sentence. Now, if the crime is included in the schedule of crimes warranting life terms, a regional court will be able to impose the sentence with an automatic right of appeal.

Lirette Louw of the justice department told the committee the bill did not provide for "mandatory minimum sentences" but discretionary minimum sentences, so the options of judicial officers were "limited but not eliminated".

She said that the Constitutional Court had found the limitation of these sentencing powers was constitutionally sound.

Minimum sentencing ‘not halting crime’ by Ernest Mabuza Legal Affairs Correspondent 03 May 2007

MINIMUM sentencing legislation, which has been extended until May 1 next year, has probably not had significantly reduced crime, two researchers say in a recently published paper.

The researchers, in a study commissioned by the Open Society Foundation on the impact of minimum sentencing legislation, also found the law had reduced courts’ efficiency as cases were taking longer.

"Evidence suggests that accused persons facing stiff minimum sentences … seldom plead guilty, tend to use Legal Aid more, and tend to appeal their sentences more often, lengthening case cycles and adding to the overall burden of the courts," researchers Jean Redpath and Michael O’Donovan said in a paper published in South African Crime Quarterly.

The Criminal Law Amendment Act of 1997 introduced minimum sentences ranging from five years to life for a range of crimes, including theft, corruption, assault, rape and murder.

The law was introduced at a time when crime was perceived to be out of control and there was strong public demand for the government to ensure public safety.

The law was intended as a temporary measure and aimed to promote consistency in sentencing, to address public concerns regarding the need to be "tough on crime", and to reduce serious and violent crime.

Redpath and O’Donovan said there were fewer serious cases being prosecuted but they were taking up more of the courts’ time. The number of cases finalised per regional court was dropping, indicating the reduced efficiency of these courts and the increasing amount of time taken to resolve cases.

Judges, prosecutors and magistrates interviewed by the researchers expressed the view that the split procedure for life-imprisonment cases, which required referral of the case to the high court for sentencing if they were heard in the regional court, was onerous and causing havoc.

The process of referring cases for sentencing involved preparing three copies of the regional court record. The high court then had to satisfy itself about the conviction in the regional court before passing sentence.

The high court would hear evidence again to satisfy itself that the regional court had reached a correct decision.

"Available National Prosecuting Authority data for 2005 shows that 12% of regional court convictions were set aside by the high court at a sentencing stage," the researchers wrote.

"The high courts are not in favour of the minimum sentencing legislation, largely because of this split sentencing procedure, and have twice found it to be unconstitutional."

They also said victims of the worst kinds of rape that merited life sentences for offenders faced testifying in both the regional court for trial and the high court for sentencing, if the high court found it necessary.

"Given that these cases include rapes of children, and the high court feels compelled to be sure of the evidence of child witnesses, it is indeed the most vulnerable who are bearing the brunt of this two-step process."

They said a comprehensive overhaul of the justice system in general, and that the sentencing regime in particular, was required.

"The courts do not appear to be coping, the prisons are increasingly overcrowded, and the public views mass releases from prison even less positively than it might view a change in sentencing law."

The cabinet last month approved the Criminal Law (Sentencing) Amendment Bill for submission to Parliament for consideration during this year’s session. The amendments aim to expedite the finalisation of serious criminal cases. This will mostly be achieved by granting jurisdiction to the regional courts to impose life sentences in cases where this is prescribed.

Explaining the reason for presenting the bill, Justice Minister Brigitte Mabandla said there were certain practical difficulties involved in the application of the minimum sentencing legislation, notably the fact that cases often had to be transferred from the regional court to the high court for sentencing. This led to delays and duplication, she said

Problematic bill - Letter to the Press 09 May 2007

In response to the article, Minimum sentencing ‘not halting crime’ (May 4), the research on minimum sentencing by the Open Society Foundation for SA (OSF-SA) did indeed conclude that minimum sentencing has had minimal impact in terms of making citizens safer and that it has reduced the efficiency of the courts.

This notwithstanding, Parliament has elected to extend the provisions in the legislation for a further two years. However, Justice and Constitutional Development Minister Brigitte Mabandla has acknowledged certain problems in the way that the current legislation is drafted.

According to a press statement, the newly tabled Criminal Law (sentencing) Amendment Bill contains proposals to eliminate some of the procedural delays and secondary victimisation of witnesses caused by the legislation in its current form.

The proposed procedural amendments apparently include the granting of jurisdiction to the regional courts to impose life sentences and the limiting of the use by judicial officers of the "substantial and compelling circumstances" clause that allows them to deviate from the minimum in order to improve consistency in sentencing.

While efforts to deal with the procedural problems are applauded, there are concerns that an increase in the sentencing jurisdiction of the lower courts will negatively affect prison overcrowding.

The OSF-SA research clearly shows how the increase in the sentencing jurisdiction of these courts in the late 1990s brought with it an immediate and massive increase in sentencing tariffs. No doubt there will be a similar increase in life sentences now.

In respect of the restricting of the use of the "substantial and compelling circumstances" clause, it will be interesting to see what the reaction of members of the judiciary will be to what could be perceived as a further limiting of their discretion.

Louise Ehlers
The Open Society Foundation for SA