Public reaction to sentencing practices has probably had the most significant impact upon the legitimacy of the judiciary. Over the past 12 months we have witnessed considerable dissatisfaction as a result of perceived lenience in the imposition of sentences for rape. For these reasons a comprehensive report authored by leading academic Dirk van Zyl Smit under the aegis of the Law Commission is to be welcomed.
Based upon empirical research conducted on behalf of the commission, it appears that like cases are not treated alike, sentencers (both magistrates and judges) give insufficient weight to certain serious offences, restorative justice rarely features in the sentencer’s vocabulary, and victims are hardly paid attention. In short, too many sentencers pay obeisance to the ritual incantation of Judge Holmes (he of the Group Areas being a colossal social experiment fame) that the sentence must take account of the crime, criminal and society, and then hope for the best.
The report calls for a new sentencing partnership. It proposes that the legislature enact a new framework within which the Supreme Court of Appeal (SCA), in liaison with a newly created sentencing council, will develop sentencing guidelines within which all courts will have to operate.
The guidelines must be formulated to promote a set of prescribed principles, most important being that a sentence must be proportionate to the offence committed. In so determining proportionality, regard must be given to the seriousness of the offence, the social harm caused relative to other categories of offences, and the sentence should strive within the context of proportionality to offer the optimum combination of restoring rights to victims, protecting society and rehabilitating the offender.
The report proposes that the sentencing council will establish a set of initial sentencing guidelines; within five years it must establish guidelines for all offences for which sentenced offenders make up more than 5% of the prison population. A court will only be able to depart from these guidelines if substantial and compelling circumstances that alter the moral blameworthiness of the offender are found to exist. Only the SCA will be able to change these guidelines.
The sentencing council thus becomes a key body in the new scheme. The sentencing council will consist of 10 members of whom only one will be a judge and one a magistrate. Hence the members from correctional services, police, prosecutions, the two representatives of the public and the two sentencing experts will be in a majority.
Thus the question arises as to whether a proposal that so decisively shifts the balance of power away from the Bench will win sufficient support to be translated into law. Judges jealously guard their jurisdiction, including that which deals with sentencing. The argument is that only the presiding judicial officer hears the case, that no case is truly like another and that constraining the discretion of the judicial officer to sentence as he or she considers appropriate will result in one more injustice over the long run.
The report shows, however, that there is considerable inconsistency in sentencing decisions. Few, if indeed any, judges have previous criminological training. Most pick up knowledge “on the job”. Hence mistakes made before are perpetuated as judges follow some informal set of precedents developed by predecessors. The proposal to prod the SCA to develop guideline judgments meets the objection that judges should retain a key role in the process. The council promises to bring in new perspectives and expertise to help develop sentencing practices and thus to cure the system of mistakes perpetuated by tradition.
Of particular importance are recommendations concerning the role of the victim. The report provides for evidence of victims to be heard. Victim-impact statements, with information about the physical, psychological and economic effect of the crime on the victim, should become standard evidence whenever a sentence is passed. It also recommends that compensation orders in favour of victims become more frequently employed.
The report presents a bold new approach to the problem. It deserves to be considered carefully. Sadly, however, its own pressing importance is placed in perspective by a figure cited in the report. Only 5,4% of cases reported to police result in convictions. What, one may ask, is the need for a new sentencing regime when so few criminals ever require courts to sentence them? Is this yet another case of refusing to tackle the problem?