A recent Supreme Court of Appeal (SCA) judgement poses a conundrum for minimum sentencing legislation.
When a judge or magistrate sentences, he or she must treat the offender as a unique individual within the context of the crime committed, the effects on the victim and family and the interests of the community.
The legislature sought to confine this flexibility by introducing minimum sentences. The judiciary has been resistant to this because sentencing does not fit easily within a one-size-fits-all approach. The legislation is crude and it is unfortunate that a new set of proposals written on behalf of the Law Commission has been ignored by law-makers.
Parliament last week decided to further circumscribe the discretion of the judiciary in the sentencing of rapists, obviously dissatisfied with the failure to impose the prescribed sentences.
In the recent decision of the SCA in S v Nkomo the facts were as follows: a woman goes to a bar to a find someone to whom she had lent clothing. A cold drink she imbibed may have been laced with alcohol. She tries to leave but is forced into a room by the appellant, who rapes her. He locks the room, from which she escapes. The appellant again apprehends her and forces her back into the room. During the night, he rapes her four more times and compels her to have oral sex. He slaps her, kicks her and removes her clothes to prevent another escape. The next morning she breaks free. The trial judge convicts him, finding that there are no substantial and compelling circumstances that would permit a reduction in sentence. Accordingly, he sentences the appellant to life imprisonment, in accordance with the minimum sentence legislation.
The case reaches the SCA. The appeal is only against the life sentence. The court found that the judge erred in finding that mitigating circumstances employed before the introduction of the legislation could not constitute substantial and compelling circumstances necessary to reduce the prescribed sentence. The majority of the SCA observed that ”it may be difficult to imagine a rape under worse circumstances. But it is possible, and … the prospect of rehabilitation and the fact that the appellant is a first offender must be regarded as substantial and compelling circumstances, justifying a lesser sentence.” The majority therefore reduces the sentence to 16 years.
The minority judgement correctly observed that ”there is hardly a person of whom it can be said that there is no prospect of rehabilitation. The appellant was 29 years old at the time and would ordinarily not be regarded as a youthful offender.”
The SCA is reluctant to impose the prescribed sentence of life, even in cases where it is judicially acknowledged that this was a dreadful rape.
This decision will have a marked impact on rape sentencing in the lower courts. It illustrates the need to review the legislation in the light of the Law Commission’s report. If this rape only deserves 16 years, when is the prescribed sentence applicable, particularly for a first offender? In short, the judiciary has signalled its discomfort with the minimum sentences. That in itself should be cause for a comprehensive dialogue to develop a system that meets the needs of individual sentencing with society’s demand for much longer sentences across the board.