COMMENTS BY BJ KING
COMMENT ON THE CRIMINAL LA W (SENTENCING) AMENDMENT BILL [B15-2007]


The following comments are made, not as a submission by Justice College, but in my personal capacity as a lecturer/trainer on the topic of sentencing. As a commentator to the original Bill in July 1997 and having been involved in providing advice to Judges, Regional Magistrates and Magistrates on the content on the Criminal Law Amendment Act, 1997 (Act 105 of 1997) as amended over the years, I regard myself sufficiently qualified to make the following submissions in regard to the proposed amendment of the said Act 105 of 1997.

Without going into the viability or sustainability of the current legislation and the proposed amendment thereof, as I have also been actively involved in the committee dealing with the overcrowded prisons' situation and thus aware of the numerous reports available that point to 'minimum sentencing' as a root cause for the overcrowding situation, I will limit my comments to the text of the draft proposals.

Any references to sections, Schedules or Parts hereunder, unless specifically indicated otherwise, refer to sections, Schedules or Parts as contained in the Criminal Law Amendment Act, 1977 (Act 105 of 1977) as amended to date.

SUBMISSIONS/COMMENTS

1. Proposed amendments to section 51 (section 1 of The Criminal Law (Sentencing) Amendment Bill [B 15-2007]:

1.1 The amendment to section 51 (1) is to be welcomed.

1.2 The amendment to section 51(2) is also welcomed.

1.3 The amendment to section 51(3)(a) is, with respect to the drafters, hardly a necessary amendment as, following a finding of circumstances that justify a lesser sentence, it is extremely unlikely that a court will impose anything other than a lesser sentence. However by stipulating that the court must "impose such lesser sentence" (or, as it read previously, 'may'), the legislature appears to exclude the use of section 297(1)(a) of the Criminal Procedure Act, 1977 (Act 51 of 1977) (the postponing of the passing of sentence) which is in itself not a sentence but an order. This should perhaps be rectified at this opportunity.

1.4 The addition or inclusion of subsection (3)( aA) to section 51 can not be supported. It is almost in direct conflict with the remarks in Malgas 2001(1) SACR 469 (SCA) and could result in a challenge as to its constitutionality given that it appears to be an attempt by the legislature to prescribe what sentence must be imposed by stipulating what must be ignored. See Malgas supra, at 472 where the court remarked as follows:

" [3] What is rightly regarded as an unjustifiable intrusion by the Legislature upon the legitimate domain of the courts, is legislation which is so prescriptive in its terms that it leaves a court effectively with no sentencing discretion whatsoever and obliges it to pass a specific sentence which, judged by all normal and well-established sentencing criteria, could be manifestly unjust in the circumstances of a particular case. Such a sentencing provision can accurately be described as a mandatory provision in the pejorative sense intended by opponents of legislative incursions into this area. [S v Toms; S v Bruce 1990 (2) SA 802 (A) at 806H - 807D.] A provision which leaves the courts free to exercise a substantial measure of judicial discretion is not, in my opinion, properly described as a mandatory provision in that sense."

The approach adopted by the SCA in Malgas was endorsed by the Constitutional Court in Dodo 2001(1) SACR 594 (CC) and the remarks at 604 are particularly apt:

"This interpretation, [paragraph 25 of the Malgas case] as an overarching guideline, is one that this Court endorses as a practical method to be employed by all judicial officers faced with the application of s 51. It will no doubt be refined and particularised on a case by case basis, as the need arises. It steers an appropriate path, which the Legislature doubtless intended, respecting the legislature's decision to ensure that consistently heavier sentences are imposed in relation to the serious crimes covered by s 5 J and at the same time promoting 'the spirit, purport and objects of the Bill of Rights'."

. The reasons advanced before the Portfolio Committee for this inclusion, to apparently appease 'a number of stakeholders' because they found it objectionable that courts possibly accept such circumstances as 'substantial and compelling' circumstances is hardly good reason to become prescriptive to courts and will give an accused an almost automatic right to challenge his sentence.

It is thus submitted that subsection (3)( aA) not be included in the proposed Amendment Act.

1.5 The proposed repeal of section 51 (3 )(b), in the light of the S v B 2006 (1) SACR 311 (SCA), is also welcome as it rectifies the rather contentious issue relating to the juvenile offender who is under the age of 18 years at the time of commission of the offence.

1.6 The proposed repeal of section 51(4) is likewise welcomed.

1.7 The proposed addition to section 51(5), namely sub-subsection (b), is unnecessary and complicates the sentencing process almost to the extent of defeating the aim of the minimum sentencing provisions regarding offences listed in Part IV. In practice, such offences, which the Portfolio Committee referred to as 'less serious' offences (in the minutes of its meeting of 12 June 2007), would ordinarily warrant a lesser sentence being imposed following the guidelines in paragraph [25 (I)] of the Malgas supra judgment. By the inclusion of this provision, it would mean that, although the court finds no substantial and compelling circumstances warranting a 'lesser' sentence, it can in any event find some circumstances justifying the suspension of up to half of the 'prescribed' sentence. This appears to be a contradiction in its own terms and to avoid confusion should also not be included in the Amendment Act. Subsection 51(5) should thus not be amended.

1.8 The proposed amendment to section 51 (6) is also, in the light of my remarks in the last paragraph, totally unnecessary as it again brings in factors and 'circumstances' that might or might not be such which would, in the ordinary course of events, amount to 'substantial and compelling circumstances' warranting a lesser punishment anyway and which may lead to revisiting the B (Brandt) decision supra, due to the differentiation of ages in the proposal. It is thus submitted that subsection (6) also not be amended unless it is only to replace "child" with "person".

1.9 The proposed amendment to section 51 (7) (and that in (6) for that matter) is amusing to say the least. It begs the question - is a child not a person? Obviously when this legislation was originally drafted, "child" was foremost in the mind of the drafters as the lobbying groups at that stage were seriously concerned with children's rights.

1.10       The proposed amendment to section 51(8) is merely an 'update' and the proposed amendment to 51 (9) merely the correction of a typing error. There is no objection to the amendments proposed then to section 51 (7), 51 (8) and 51 (9).

2. Proposed repeal of sections 52, 52A and 52B; (section 2 of The Criminal Law (Sentencing) Amendment Bill [B15-2007]):

In the light of the new proposals, the only objection to the repeal of the referral provisions is that without a referral being at all possible, some offenders may still receive inadequate punishment. By way of example I use the following scenario to illustrate:

2 young girls are raped in totally different locations. The 'alleged' rapist in each case is a 25 year old person with no previous convictions, (for purposes of this example).

The one girl is 15 years old. She happens to have a very active sex-life as she is a 'sex-worker'. Her assailant also happens to be her ex-boyfriend. However, because of her age, upon conviction, her rapist 'qualifies' for life imprisonment, subject only to section 51 (3), due to the fact that she was under the age of 16 at the time and the offence is 'catergorised' in Schedule 1 Part I. The newly proposed subsection (3)(aA) will result in her sexual history and relationship with her attacker being excluded as substantial and compelling circumstances, justifying a lesser punishment. Her assailant will thus in all likelihood, in the absence of any 'other' substantial and compelling circumstances, receive a sentence of life imprisonment.

The second young girl is 17 years old. She was a virgin prior the incident. The rape (because of her age) thus falls within Part III of Schedule 1. The Regional Court's jurisdiction, ordinarily 15 years imprisonment (in terms section 92(1)(b) of the Magistrate's Court Act, 1944 (Act 32 of 1944) for the common law offence of rape) or, in terms of Act 105 of 1997, limited to 15 years imprisonment (10 years imprisonment for the nature of the offence via its 'listing' in Part III and a possible additional 5 years imprisonment in terms of the proviso to section 51(2)(b), meaning that the offender, at the very most, will walk away with a 15 year term of imprisonment sentence for a rape which (although it is not supposed to be characterized or placed in a different category of seriousness), happens to have been a more vicious attack on the petite, naive, young girl. Merely because she happens to have been born a few months earlier than the other girl her offender is treated in this 'unlike' manner despite the rape being possibly, a far more traumatic experience to her.

Either the Criminal Procedure Act, 1977 or this Criminal Law Amendment Act, 1997 should then contain a provision allowing a Regional Court to commit the accused in the second instance for sentence by a High Court in circumstances similar to the original section 52(1), or similar to the current provisions relating to district courts in sections 114 and 116 of the Criminal Procedure Act, 1977, that is, if the Regional Court is of the opinion that the offence concerned warrants punishment in excess of its jurisdiction. It is suggested that either are-worded section 52 be retained or an amendment to the Criminal Procedure Act, 1977 be made by this amending Act.

I hear the counter argument being thrust forward that that is the reason for the proposed amendment to section 21 of the National Prosecuting Authority Act, 1998 (Act 32 of 1998), [the proposed Amendment Act's section 5], viz. to cater for situations such as this. I cringe that this is thought to be a solution. Unfortunately, from years of 'practice' I know that such amendment will be of little consequence because not all dockets will contain the information regarding the matter as I have sketched in the example. It is thus necessary for those cases that 'slip through' the system that the Regional Court has the power, authority and discretion for such referral (rather than the 'other' time and expense consuming option of converting the case into a preparatory examination, (section 123(b) of the Criminal Procedure Act, 1977).

My proposal in this regard is then, seeing that the proposed Amendment Act (Bill) contains certain provisions amending the Criminal Procedure Act, 1977, it also further amends section 114 or 116 or inserts new provisions in Chapters 17 and 18 to cater for a referral from a Regional Court to a High Court, not only to provide machinery for any such case but also in the promotion of judicial independence, that is that the judiciary makes the final decision as to the proper punishment and not the prosecution service.

3. Proposed amendment of section 53 (section 3 of The Criminal Law (Sentencing) Amendment Bill [B15-2007]):

It is not clear why section 3 of the proposed amendment Act only causes a deletion of subsections (1), (2) and (2A).

Subsections (3) and (5) will play no meaningful role in view of the new transitional process set out in section 6 of the proposed amendment Act and should thus also be repealed. This specific transitional clause in section 6 should in any event effect an amendment to Act 105 of 1997 so that the transitional provision is not left standing in some other Act. Section 53 should rather reflect this process.

It is also not clear why it is not proposed that the words "and 52" be deleted from section 53(4) and it is suggested this be so effected.

4. Proposed amendment of section 309 of the Criminal Procedure Act, 1977 (as amended); (section 4 of The Criminal Law (Sentencing) Amendment Bill [BI5-2007]):

Whilst not adverse to the proposed suggestions made in section 4, albeit that it falls short of also amending section 316( 1 )( c) of the Criminal Procedure Act, 1977 (which contains similar wording to section 309(1)(a», it is suggested that further textual amendments be effected at this stage, particularly to what was section 309(1)(a)(iii), [now to be 309(1)(a)(i)(cc)], namely, rectifying the rather ridiculous situation that currently exists regarding the use of the words "any form of imprisonment as contemplated in section 276(1)(b)" (my emphasis). The 'problem' with the phrase in the subsection is that an accused person under the age of 21 years, who is sent to a reform school by a District or Regional Court, has to apply for leave to appeal as 'imprisonment as contemplated in section 276(1)' excludes a referral to a reform school made in terms of section 290(1)(d). (Although the latter matter is subject to automatic review (because the words "(including detention in a reform school as defined in section 1 of the Child Care Act, 1983 (Act 74 of 1983»" are included in section 302, it has been difficult to establish why this distinction regarding the appeal process was made and how it can be regarded as fair or justified).

It is submitted that not only does an accused who is sentenced to imprisonment for life by a Regional Court receive the opportunity to lodge his or her appeal without having to apply for leave to appeal as suggested by the proposed amendment, but that such sentence of life imprisonment be automatically reviewable by a judge of the provincial or local division having jurisdiction and that an appropriate amendment in this regard be made to section 302 of the Criminal Procedure Act, 1977. The automatic right of appeal is small consolation to an accused who has not had the benefit of competent counsel during a trial for any of the serious offences contained in Part I of Schedule 2 of Act 105 of 1997. He or she should also have the added benefit of the proceedings being subject to an automatic review by a High Court. This is perhaps also warranted given the fact that certain Regional Magistrates have been appointed as such whilst not having held the substantive rank of magistrate for seven years - meaning that, whilst seated in the district court their cases were subject to review should they have imposed a sentence of more than 3 months imprisonment yet they now have the authority to impose life imprisonment with no 'checking system' in place other than an accused appealing such decision without having to apply for leave to do so.

5. Proposed amendment of section 21 of the National Prosecuting Authority Act, 1998 (Act 32 of 1998); (section 5 of The Criminal Law (Sentencing) Amendment Bill [B 15-2007]):

The power of the Legislature to make provision for the issue of directives by the National Prosecuting Authority is not questioned, but although the idea here is a noble one, it is not entirely a practical one. In paragraph 2 supra I sketched a scenario and mentioned the fact that a police docket will not always contain sufficient detail for a determination of a forum to be made prior the institution of prosecution and the same comments made then are relevant here. Whilst the directive may be clear in its terms, the possibility of a serious case' slipping through' merely because the investigation is not complete or adequate or covers aspects that may be necessary for a determination of forum may result in an offender escaping 'proper' justice.

Although such directives may be necessary, it is submitted that the only 'safe' solution is to make provision for a referral, in appropriate cases, from a Regional Court to a High Court for sentence purposes. Given the fact that the Constitutional Court has given such process its stamp of approval, (Dodo supra), and despite various of the High Court judiciary not being particularly happy with such a system, it can, in the exceptional circumstances when it will be (or ought only to be), utilized, provide a method for ensuring all offenders get their 'just desserts'.

6. Proposed "Transitional provision"; (section 6 of The Criminal Law (Sentencing) Amendment Bill [B15-2007]):

Other than the suggestion made in paragraph 3 supra regarding this proposed provision, it is suggested that a word other than "heard" be employed in the text. The High Courts have already had to debate whether a judge is or is not 'seized' with the matter after referral and a query has been raised by a judge, and a similar situation could again arise in this regard as to when a matter is or has been 'heard'.

I trust these submissions and comments are of assistance to the drafters of the proposed amendment Act.

Thank you.

B J KING
15 June 2007