BRIEFING NOTE: CRIMINAL LAW (SENTENCING) AMENDMENT BILL, [B
15 – 2007]
1 Brief overview of the Criminal Law
Amendment Act, 1997
1.1 The
Criminal Law Amendment Act, 1997 (Act No. 105 of 1997) (hereafter referred to
as the Act), which
came into operation on 1 May 1998, dealt with the abolition of the death
penalty and created a legal regime of discretionary minimum sentences in
respect of certain serious offences.
This latter part of the Act has colloquially, become known as the
“Minimum Sentences Act”.
1.2 Discretionary minimum sentences are only
provided for in respect of a limited number of serious and defined
offences. In each case the
presiding judicial officer has a discretion to impose a lesser sentence than
the prescribed minimum sentence if he or she is satisfied that substantial and
compelling circumstances exist which justify the imposition of such lesser
sentence. This legal regime, therefore,
does not create mandatory minimum sentences. The final discretion relating to the
sentencing of the offender still rests with the presiding officer
concerned. The
1.3 Section 52(1) of the Act provides that where
a regional court has convicted an accused of an offence referred to in Part I -
IV of Schedule 2 and the court is of the opinion that the offence concerned
merits punishment in excess of the jurisdiction of a regional court, then the
court must stop the proceedings and commit the accused for sentence by a High
Court having jurisdiction. Over the years a complicated referral procedure has
been developed to facilitate this two-stage process of conviction and
sentencing.
1.4 The Act provides in section 51(4) that the
imposition of a sentence under section 51 shall be calculated from the date the
sentence is passed. Furthermore, in
order to counter the early release of serious offenders sentenced under the
Act, it was at the time decided to stipulate in section 51(5) that the
operation of a discretionary minimum sentence imposed under section 51 could
not be suspended.
1.5 Section 53(1) of the Act provides that
sections 51 and 52 shall cease to have effect after the expiry of two years
from the commencement of the Act, unless their operation is extended by the
President by proclamation in the Gazette
in terms of section 53(2), with the concurrence of Parliament, for two years at
a time. This was a compromise arrived at
during the Parliamentary processing of the Bill. In terms of this provision, the operation of the
discretionary minimum sentence legislation has again been extended for a period
of two years with effect from
1.6 The constitutional validity of both sections
51 and 52 of the Act was tested in 2000 and 2001, respectively. The
1.7
Despite the fact that the legislation has been found to be
constitutionally sound, certain practical problems, real or perceived,
experienced in practice with the application of sections 51 and 52 have been
identified, based on inputs by the Judiciary, the National Prosecuting
Authority and other stakeholders. This
has informed the drafting of this Bill, which aims
to address these practical problems in question, whilst retaining the principles
underlying the Act.
2 Brief
overview of the Bill, 2007
2.1
Repeal of the referral process and
consequential amendments
Section
51(1) is amended to provide a regional court with jurisdiction to convict and
sentence a person found guilty of an offence referred to in Part I of Schedule
2, to imprisonment for life. This
amendment does not stand on its own and should be read within the context of
three further amendments proposed in the Bill.
Firstly, since a regional court under section 51(1) will be able to
sentence a person to life imprisonment, there is no longer a need for such a
regional court to commit the accused for sentencing to a High Court having
jurisdiction. In other words, the
referral process becomes redundant. In
order to address this issue, and due to the numerous problems experienced in
practice as a result of the referral processes under sections 52, 52A and 52B,
it was decided not only to do away with the committal of an accused for
sentence by a High Court after conviction in a regional court, but to repeal
sections 52, 52A and 52B and thereby the referral process in its entirety. Secondly, in empowering a regional court to
sentence a person under section 51(1) to life imprisonment, it has also become
necessary to amend section 309 of the Criminal Procedure Act, 1977 (Act No. 51
of 1977) (CPA), in order to provide for an automatic right of appeal in cases
where a person is sentenced by a regional court to life imprisonment. (At the same time, the ages listed for
children in instances where an automatic right of appeal would be available are
being adjusted to give greater protection to children under the age of 18
years.) Thirdly, due to the repeal of
sections 52, 52A and 52B (the repeal of the referral process) it was further
decided to also amend section 21 of the National Prosecuting Authority Act,
1998 (Act 32 of 1998), in order to provide that the National Director of Public
Prosecutions (NDPP) must adopt policy directives that set out which
prosecutions (with reference to particular types of cases or involving specific
individuals) must, as a matter of prosecuting policy, from the outset be
instituted in the High Courts and not in the regional courts.
2.2 Certain
grounds excluded from substantial and compelling circumstances in rape cases
Section
51(3)(a) provides that if a court is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence than the
prescribed sentence in subsections 51(1) and (2), then it must enter those
circumstances on the record of the proceedings and must thereupon impose such
lesser sentence. Based on an analysis of
case law dealing with the imposition of lesser sentences in rape cases, and in
the light of submissions received by women’s interest groups, it is clear that
the circumstances held by the courts as constituting “substantial and
compelling” reasons for imposing such lesser sentences are, in some instances,
objectionable. In order to address this
situation, it was decided to insert a proviso in section 51(3)(a) to provide
that, when a sentence must be imposed in respect of the offence of rape, none
of the following shall constitute substantial and compelling circumstances,
justifying the imposition of a lesser sentence, namely:
·
Any previous sexual history of the
complainant;
·
An accused person’s cultural or
religious beliefs about rape; or
·
Any relationship between the accused
person and the complainant prior to the offence being committed.
2.3 Repeal
of section 51(3)(b)
Under section
51(3)(b), should a court have decided to impose a minimum sentence upon a child
who was 16 years or older, but under the age of 18 years, at the time of the
commission of the act which constituted the offence in question, the court
could impose such discretionary minimum sentence, but had to enter its reasons
for its decision on the record of the proceedings. However, the interpretation of section
51(3)(b) has become confused (if not redundant for all intents and purposes),
since the interpretation given to this provision by the Supreme Court of Appeal
in the Brandt judgment. Section 51(3)(b)
is consequently repealed.
2.4 Calculation
of sentence
Section
51(4) of the Act is repealed in order to allow a presiding officer, when
imposing a sentence under the Act, to take into account the time that an
accused was incarcerated as an awaiting trial prisoner.
2.5 Suspension
of sentence
Currently,
the operation of a discretionary minimum sentence imposed under section 51 may
not be suspended. The Bill retains this
provision with regard to persons sentenced for serious offences under section
51(1) and (2)(a) and (b), but provides that up to half the sentence imposed
under section 51(2)(c) may be suspended as contemplated in section 297(4) of
the CPA.
2.6 Extension
of the operation of the Act
In the light
of the extensive technical amendments proposed by the Bill and the fact that
the principles underlying the Act have been found by the
2.7 Transitional
provision
The Bill
provides that if a regional court has, prior to the commencement of the
Criminal Law (Sentencing) Amendment Act, 2007, committed an accused for
sentence by a High Court under the Criminal Law Amendment Act, 1997 and the
High Court has not heard the matter, then the High Court must refer the matter
back to the regional court for sentencing in terms of the Criminal Law
Amendment Act, 1997. Or, if the High
Court has heard the matter, then the High Court must dispose of the matter as
if the Criminal Law (Sentencing) Amendment Act, 2007, has not been passed.