Criminal Law (Sentencing) Amendment Bill: deliberations

Meeting report

Criminal Law (Sentencing) Amendment Bill: Draft dated 14 August
A new version of the Bill had been prepared and was circulated. Dr Lirette Louw (Drafter, Department of Justice) took the Committee through the changes.

Clause 1: Amendments to Section 51(2)(c)(iii)
Dr Louw noted that the wording of the proviso to the revised Section 51(2)(c)(iii) had been changed, to use the words "shall not exceed the minimum term of imprisonment….by more than five years". There had been no change to the principle.

There had also been addition of a proviso under Section 51(3)(a) to clarify that a Regional Court, having found that substantial and compelling circumstances did exist to deviate from the minimum life sentence, would not then be limited to reverting to the 15 year jurisdiction, but could impose another sentence. In the case of a first offender, the jurisdiction was named as not exceeding 20 years, rising to a period not exceeding 30 years for third or subsequent offenders.  This sought to address the concerns raised by the Association of Regional Court Magistrates. Dr Louw pointed out that this would apply only to Part I offences, since the Committee had expressed the view that the jurisdiction in respect of offences under Part II to IV of the Schedule was sufficient.

The Chairperson asked what the situation would be in the High Court.

Mr Johan de Lange, Principal State Law Advisor, Department of Justice, noted that this was a possible criticism. On the one hand the Court was faced with a mandatory sentence. Where it found that substantial and compelling circumstances existed, it was being given a discretion to impose another sentence, yet still was being limited to imposing a sentence no more than that named under the appropriate option. This would not apply in the High Court, which would have a complete discretion as to the appropriate sentence. A possible solution would be to state that the Court could impose "a lesser sentence, not exceeding 30 years".

The Chairperson asked the drafters to draft an option along these lines for further consideration. This option would then not be regarded as a minimum sentence.

Clause 1: Section 51(3)(aA): Two options
Dr Louw noted that there were two optional wordings.  The first (new) option clarified that the presence of the listed circumstances "shall not in or of itself" constitute substantial or compelling circumstances. The third item listed under (iii) had also been changed, in line with suggestions, to reflect "any close, personal relationship" between accused and complainant.

The Chairperson noted that there was a possible interpretation that if only those three items were listed as not being able, by themselves, to be raised as substantial and compelling circumstances, then any other reason could be used by itself. The Courts had in the past used what many felt to be quite spurious reasons to depart from the minimum sentence, including the virility of the complainant or the fact of employment. She would not like this interpretation to be put on the clause. There had been arguments advanced also that if the accused was the breadwinner for the complainant, this would justify a lower sentence so that the complainant was not financially prejudiced. She did not support this argument, and indeed where a rape was committed in circumstances where the close personal relationship existed, this should rather be an aggravating than a mitigating factor. 

Dr T Delport (DA) noted that this must be viewed from the point of view of the victim. There were different types of rapes, since the consequences or injury inflicted in some, such as gang rapes, were far worse than rape by a single accused. He was not sure that the close personal relationships should not be taken into account as a mitigating factor.

The Chairperson said that Prof Terblanche, in his submission, had argued that the Court would invariably take a range of issues into account. This legislation was trying to prevent this one factor being, in itself, sufficient to find substantial and compelling circumstances.

Dr Delport noted that this clause was seeking to give criteria to the judicial officers, whereas he believed that the judiciary should be permitted to take into account all the circumstances. He reiterated his earlier concerns that the Bill was crossing the fine line between legislating and interfering with judicial discretion. Minimum sentences had been shown to be not unconstitutional, but he was worried that such a clause would not be able to pass the test of constitutionality. 

The Chairperson understood his concerns. However, although crossing the line was undesirable, so was the current situation where aspects such as the virility of the accused were being taken into account. The issue was to what extent the legislation should or could try to prevent poor decisions without interfering with the inherent discretion. Some matters - such as a rapist's views on rape - should never be taken into account.

Dr Delport agreed. However, if one took the line of reasoning further, then these circumstances should also not be taken into account in respect of murder or robbery offences, but this was not the case.

Mr J Jeffery (ANC) said that there was a distinction. Judges, over the last few years, had shown greater diversity of views in respect of rape cases, whereas they tended to take a more standardised view of murder cases. He agreed that there was a great problem where women complainants were financially or socially dependent upon their abusers.  The phrasing "in or of itself constitute" could be used where the complainant wanted to call for a lesser sentence for the accused, and he felt that the inclusion of this phrase could be useful.

Adv C Johnson (ANC) felt that it might be useful for the Committee again to have sight of the cases that were referred to the Committee the previous year, to check the kind of circumstances that the Courts had found to be mitigating.

Dr Delport suggested that perhaps there should be a new approach. He suggested that it might be possible to use the consequences to determine whether the minimum sentence should be imposed, and to amend Section 51(3)(a) with a proviso to read something along the lines of " Provided that the Courts shall not impose such lesser sentence where the victim or complainant suffered severe physical or mental injury".

Dr Louw said that even women judges had struggled to make findings on physical or mental injury in the past. 

The Chairperson noted that in one case a victim, being threatened by an accused without a gun, was distressed enough to try to jump from a third floor window. Sentencing was about attitudes. There was nothing completely legalistic about it, which made it a very difficult area. She was worried that even if the Bill followed the route suggested by Dr Delport, there would be interpretation as to whether there was injury. Even if he was suggesting that this be limited to rape cases, then the question arose whether there could ever be a rape where the complainant had not suffered a mental injury.

Dr Delport clarified that he was essentially suggesting a two-stage process. There should be a minimum sentence, except if substantial and compelling circumstances were found to depart from it. Even if these were found, the judicial officer would have to revert to the minimum sentence if there was severe mental or physical injury.

Mr Jeffery suggested that perhaps Dr Delport should draft his suggestion as an option for the Committee to consider.

The Chairperson felt that it would not be too different from the effect of what was already in the Bill, save that the three items would be replaced by injury. However, she said again that there would always be mental or physical injury. Recent media reports had noted that most young girl victims were being raped by male relatives or employers of themselves or the family, so that close personal relationships were prevalent. The Sexual Offences Bill had specifically created a register of sexual offenders to try to put a physical barrier between perpetrators and victims. Now to suggest that the existence of a close personal relationship would justify a lesser sentence was directly opposed to that principle. The legislation should be seeking to prevent further victimisation.

The Chairperson agreed with Ms Johnson that it would be useful to have another look at the judgments, and asked Dr Louw to circulate them.

Clause 1: Amendment of Section 51(3)(b)
Dr Louw said that this should be read with subsection 51(6). This sub-section was clarifying the wording in respect of children between 16 and 18 years old. A court imposing a life sentence must make a finding that no substantial and compelling circumstances existed justifying the imposition of a lesser sentence, and enter the reasons for the finding on the record.

The Chairperson asked if the word "child" should not be changed to "an accused person". It was agreed that this would be done.

The Chairperson noted the change of the word "shall" to "must". The new draft of Section 51(1) had used the word "shall" and she suggested that this too be changed for the sake of consistency.

Dr Louw noted that in (3)(a) the word "must" was now used, instead of "may".

Mr de Lange noted that the word "shall" was in the principal Act. However, the drafters would check and try to ensure consistency.

The Chairperson raised the question of parole. One aspect raised in the hearings was "least possible sentence", to follow the provision in international treaties that any sentence imposed on a youth should be the least possible appropriate sentence. She wondered if it would be desirable for a judicial officer, when sentencing a person between 16 and 18 in respect of a Part I offence (carrying a life sentence), to pronounce also on the amount of time that the accused should serve before being eligible to apply for parole. The danger was, however, that one judicial officer might sentence to life on a Part I offence, but say that two years must pass before the offender was eligible to apply for parole, whereas another young person sentenced for a lesser offence, not under Part I, could in effect spend longer in prison. She asked Members to think about this possibility.

Dr Louw noted that the general provision applying at present was service of four-fifths of the sentence.  She reported that in the Canadian Criminal Code there was a provision that a life sentence would be imposed for certain offences, which then went on to specify the times that must be served before a person would be eligible for parole. The Canadian minimum sentences applied also to those between 14 and 16 years of age, and lesser, specified times before eligibility for parole were specified.

The Chairperson wondered if it might be possible to set the lowest limit.  She asked the drafters to draft a possible provision.

Clause 1: Section 51(5)(a)
The word "minimum" had been inserted in front of the reference to "sentence". Subparagraph (b) had been deleted, so this reverted back to the original position under the principal Act. This clause clarified the situation that a minimum sentence could not be suspended, but that if judicial officers were to find substantial and compelling circumstances, and impose a lesser sentence, then part of that lesser sentence (which would no longer be "a minimum sentence") could be suspended. This addressed the difficulties in interpretation highlighted by the Association of Regional Magistrates.

Clause 1: Amendment of Section 51(6)
Dr Louw clarified that this sub-section noted that this section did not apply to anyone who was under 16 at the time of commission of the offence. In respect of an offence under subsection (2)(c) it would not apply to a person under 18. It was noted that the wording referred to "an accused person".

New Clause 4: Insertion of Section 53A into the Criminal Law Amendment Act
Dr Louw noted that the transitional provision, following submissions, had been moved to the principal Act. The draft had been sent to the National Prosecuting Authority (NPA) for comment, but the comments had not yet been received.

The Chairperson felt that if matters had been formally stayed and committed to the High Court under Section 52 by a regional court, then the High Court should deal with the matter. The real question was what would happen if proceedings had started, but there had been no committal, and whether here too there should be a referral to the High Court.

Dr Louw noted that if a person had pleaded, but the matter had not reached committal stage, then in theory it could not be transferred.

Mr de Lange said that there was also the argument that the matter was committed when a person was formally asked to plead to the charge.

The Chairperson felt that to go back to plea stage would cause huge problems. She thought that if the matter had been committed under Sections 52, 52A or 52B then the High Court must take over the matter, otherwise if this had not been done, then the Regional Court should proceed. There could still be an argument that one legal regime applied when an accused was charged, and another at the point of sentencing, but that was the natural consequence of amendments. There would not be any prejudice, because of the safety net of the automatic right to appeal. She suggested that this clause contain specific wording to the effect of "Where the Regional Court, in terms of 52, 52A and 52B has committed an accused…"
 
New Clause 5: Amendment to Part 4 of Schedule 2 and insertion of new Schedule to Criminal Law Amendment Act 105 of 1977
Dr Louw noted that this clause was essentially a cleaning-up exercise. Parts I, II and III of Schedule 2 of the Criminal Law Amendment Act listed the nature of certain crimes. Part IV had referred to back to crimes listed in Schedule 1 of the Criminal Procedure Act, 1977, in dealing with situations where guns were used. However, there were still some offences in that Schedule 1 where it was impossible for a gun to have been used, such as coinage offences. Those offences that could involve a gun were now being moved to Schedule 3, and they were listed specifically. They excluded the Part I crimes that could not involve a gun. The effect was that nothing was being changed, but the wording was being tidied up.

Dr Louw noted, in answer to some discussion from the floor, that there was no treason listed under Part I.

Mr Jeffery thought that there was some anomaly, as there was then no provision made for committing treason with other weapons.

Dr Louw would check on the situation. She thought that it was probably in the terrorism legislation.

New Clause 8: Amendment to Section 21 of Act 32 of 1998
Dr Louw stated that this amendment related to the submissions made by the NPA in regard to the National Prosecuting Authority Act. In its submissions the NPA had stated that there was an anomaly in the wording, since only the prosecution policy or amendments to that policy would come to Parliament, in terms of Section 35(2)(a) of the NPA Act. Directives, which were referred to in the original draft under the same section, followed a different procedure. Therefore the reference to directives had been moved to a separate sub-paragraph.

The Chairperson stated that there was a relationship between policy and directives. She was not entirely happy with the wording used. The Constitution noted that the policy was determined "with the concurrence" of the Minister of Justice. She wondered if similar wording should not be used here.

Dr Louw noted that the current Act stated that the prosecution policy or amendments must be referred to Parliament. The directives did not have to be referred. The same wording was being used in this amendment. 

The Chairperson suggested that the wording of subsection (3) be re-arranged for clarity.

Dr Louw noted that no deadline was given in sub-paragraph (3) but sub-paragraph (4) did mention a date of "within three months" for the directives, which assumed that a policy must be in place by that time.

Mr Jeffery asked if the time limit for both policy and directives should not be set as three months.

The Chairperson agreed that the time limit of three months would effectively apply to both, She suggested that the wording in sub paragraph (4) "pursuant to the policy contemplated..." be left in.

New Clause 9: Amendment of Section 3 of Prevention of Organised Crime Act (POCA) 121 of 1998
Dr Louw noted that the new Clause 9 was amending the POCA, reflecting the proposals by the National Prosecuting Authority. There was currently provision in that Act for a committal procedure, and it would be consistent also for that to be deleted when amending the jurisdiction of the Regional Courts in respect of Part I offences. This committal procedure had apparently never been used. In the unlikely event that a matter would be instituted in the Regional Court, and then transpire to be more serious, it would still be possible to convert the proceedings in Regional Court to a provisional enquiry and institute the prosecution afresh in the High Court.

The Chairperson noted that the drafters would prepare a further draft, incorporating the suggestions made that day.

The meeting was adjourned.