COMMENTS BY STAN DE SMIDT
CRIMINAL LAW (SENTENCING) AMENDMENT BILL [B 15 - 2007]
GENERAL INTRODUCTION:
The crime rate and seriousness thereof is still a matter of great concern in
South Africa. This contributes to an over-burdening of the criminal justice
system, which includes the High Courts and regional courts. The large number of
awaiting trial prisoners together with the over-crowding of prisons gives very
little time for rehabilitation in penal facilities.
The Criminal Law (sentencing) Amendment Bill is viewed with the aforesaid and
sentencing theories in mind.
COMMENTS:
1. This Criminal Law (Sentencing) Amendment Bill might lesson the burden on the
High Courts but on the contrary it can increase the workload of the regional
courts. Where there might even be more cases that the regional court has to
deal with. It's not a bad step if the capacity of the regional courts increases
and awaiting trial persons are not staying in prisons for very long periods of
time before finalizing of the court cases. This process could lower legal cost
of criminal cases for the State and the public (the offender).
2. It is good that minimum sentencing will allow for some discretionary power
of certain serious offences, but it is still limited. These limitations will as
a general rule not allow the regional courts to impose lesser sentences in
spite of section (3) (a). This section states that substantial and compelling
circumstances may justify a lesser sentence, however in the preamble of this
Bill it is stated that “. . . to provide that certain circumstances shall not
constitute substantial and compelling circumstances (for) justifying the
imposing of a lesser sentence. .." This is especially in the case of rape
and or other Schedule 2 offences.
3. This provider is that the regional court may impose a sentence "that
shall not be more than five years longer than the minimum term of
imprisonment". It might be a loophole whereby offenders receiving longer
terms of imprisonment. The rationale therefore is to impose longer sentence,
which will still place a burden on the State with prisons' over-crowing. Longer
sentence is never a guarantee of community safety or offender's rehabilitation
or individual deterence. Statistics on re-offending,
criminal history and previous convictions could proof this statement.
4. It's good that rape victim's (complainant) would
not be questioned on previous sexual history, or the relationship with the
accused. With secondary trauma for the victim away, however it should being
without having a detrimental effect on sentencing. It might happen that during
the pre-sentence phase that this information will still being put before the
court of law.
5. Section (7) of the said Bill is a step in the right direction whereby
"the onus is on the State to prove the age of a person beyond reasonable
doubt". This must be done if it's not going to cause undue delay of court
cases. Some person's (children's) birth might not be registered; together
without an identification document or school report or any other prove.
Sometimes it might take time or be difficult to obtained prove of birth.
However prove of age is important that should be legislated.
6. Section 4 (a) of the Bill is in order which states: “Ieave
to an appeal is granted to a person" as mention in subsections (aa), (bb) (cc) and (ii) where a sentence is imposed by any
lower court or without legal representative in the regional court. This might
mean that more cases will go on appeal which might have a cost implication,
hence it is necessary.
7. Life imprisonment sentence that can be imposed on (especially) a person of
16 years of age is a matter of great concern. Such a person is still very much
immature, impulsive and emotional unstable. In view of this many of these
persons may not have the capacity to fully understand the consequences of their
criminal action. The submission of probation officers' or psychologists'
reports may help, thus it will place a burden on these limited professionals to
assist the courts. Life imprisonment is a harsh punishment which should only
being applicable for adults. No case law neither international example should service
as guiding principle in this regard. It can not be denied that persons of 16
years of age are committing serious crimes and those in terms of part 1 of
schedule 2. However person's of 16 years of age immaturity, emotional capacity
and influence by adults should carry equal weight during sentencing.
It is recommended that those under the age of 18 years should only receive a
term of imprisonment but not a sentence of life imprisonment.
CONCLUSION:
The minimum sentence has proven not to be very successful in South Africa, but
it is a tool or yard stick in sentencing. In the South African context the
criminal justice system assisting in preventing the following:
(a) To reduce the crime rate
(b) To alleviate prison over-crowing.
This is where it's not a proven fact that longer terms of imprisonment will
safe guard society or reduces crime in communities. That cases referred to the
High courts and regional courts take longer to finalize and people are staying
longer in prisons of secure facilities trial awaiting.
This has a high cost implication and may sometimes abuse their human right's. Hence it could be argued that longer sentences with
little rehabilitation in prisons resulting in over-crowding which is a
contributing factor to the high crime rate with a gang culture. Whereas the
human factor, environmental circumstance, the use or abuse of substance and
weapons are also factors that contribute to the high crime rate and
over-crowding.
The Criminal Law (Sentencing) Amendment Bill [815 - 2007] is a peace of
legislation that could improve the criminal justice system regarding
sentencing. It is an improvement Bill insofar as the minimum sentencing is
concerned; however it still provides too much of a punitive aspect to the legal
system. Thus there are positives in the Bill that will contribute to the
betterment of sentencing of offenders.
STAN DE SMIDT