Court Watch 04-2023 Sentencing Guidelines

COURT WATCH 4/2023

[30th October 2023]

Sentencing Guidelines

Most people will agree that sentences in criminal trials must be fair, but they often disagree about what is a fair sentence in any particular case.  Things can go seriously wrong when judges and magistrates disagree because then they may impose widely different sentences for very similar crimes.  If that happens the criminal justice system becomes a lottery in which no one has a clear idea of what sort of punishment a criminal will receive for his or her crime.

Consistency in sentencing is important so that offenders convicted of a crime have a fairly accurate idea of what their sentence will be.  Absolute uniformity in sentencing is undesirable because no crime is committed in precisely the same way as another and no offender’s personal circumstances are precisely the same as those of other offenders.  Nonetheless there should be substantial uniformity in sentences so that offenders and their victims get equal protection and benefit of the law.

A recent judgment of the High Court in the case of S v Blessed Sixpence and Five Others [link] illustrates how inconsistent our courts can be.  Six young men aged between 20 and 35 (all “youths” for the purpose of the Constitution) were convicted in different magistrates courts of having unlawful sexual intercourse with girls aged between 13 and 15 years.  One would have expected the young men to have received more or less similar sentences, but far from it:  their sentences ranged from a fine of US$300 to six years’ imprisonment – a shocking disparity.

In August, in an attempt to bring about more consistency in sentencing the Minister of Justice, Legal and Parliamentary Affairs published the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 [link] which prescribe standard sentences (called “presumptive penalties” in the regulations) for a range of commonly-occurring crimes.  The regulations permit courts to impose heavier or lighter sentences but only if they have good reason to depart from the presumptive penalties.  The regulations also lay down procedures to be followed so that sentences are well considered and fair.  In Blessed Sixpence’s case the learned judge carefully explained the regulations and pointed out that it was mandatory for the courts to abide by them.

In this bulletin we shall outline the Regulations as explained in Blessed Sixpence’s case.  First, though, we shall explain their background.

Background to the Regulations

In terms of section 334A of the Criminal Procedure and Evidence Act, the Judicial Service Commission can convene conferences bringing together judges, magistrates, prosecutors, police officers, prison officers, lawyers and other persons with expertise in crime and punishment, for the purpose of:

“studying and discussing the objectives, policies, standards and criteria for sentencing offenders, and formulating draft sentencing guidelines.”

Sentencing guidelines are directed at promoting consistency in sentencing, and cover all aspects of the sentencing process including:

·        investigations to be carried out by courts before they sentence offenders

·        factors to be considered when imposing sentence, and

·        sentencing principles and criteria which will promote equity in the criminal justice system.

Contents of the Regulations

Presumptive penalties

The essence of the regulations is contained in a Schedule of “presumptive penalties”, i.e. median sentences that fall halfway between the heavy sentences that should be imposed when the crimes concerned are committed in aggravating circumstances and the lenient sentences that should be imposed when there are mitigating circumstances.  For each crime listed in the Schedule there is a presumptive penalty – the median penalty – and for most of the crimes there is a list of factors that courts should regard as aggravating and mitigating and the penalties that should be imposed when those factors are present.

Courts may depart from the presumptive penalties for good reason but if a court does depart from them it must record the reason in its judgment.  If a court departs from a presumptive penalty without cogent reasons for the departure, it will be a gross irregularity invalidating the sentence.

The Schedule lays down presumptive penalties for crimes under the following statutes:

·        The Criminal Law Code – most of the crimes under the Code are covered, though not crimes against the State (sections 20 to 33 of the Code) or witchcraft crimes (sections 98 to 102) or the deliberate transmission of HIV (section 79).

·        The Parks and Wild Life Act

·        The Electricity Act

·        The Marriages Act – child marriage crimes have a presumptive penalty of two years’ imprisonment.

·        The Customs and Excise Act – covering smuggling and importation of prohibited goods

·        The Domestic Violence Act – domestic violence has a presumptive penalty of five years’ imprisonment.

·        The Environmental Management Act and regulations - covering mostly water and air pollution.  Damaging a wetland has a presumptive penalty of one year’s imprisonment.

A great many statutes have been left out and will have to be covered in future sentencing guidelines.  It is odd though that crimes under the Road Traffic Act have been left out – crimes such as negligent driving take up an appreciable amount of time in the magistrates courts.

Objectives and principles of sentencing

Apart from laying down presumptive penalties, the regulations also set out objectives and principles of sentencing – and these apply to all crimes, not just the ones listed in the Schedule.

The permissible objectives for sentences are:  reformation or rehabilitation of the offender;  retribution;  deterrence;  protection of the public;  and restitution or compensation for victims.

All sentences must meet the following criteria:

·        they must be proportional, i.e. they must be the least onerous sanction appropriate in the circumstances

·        they must be consistent with sentences imposed on other offenders for similar crimes committed in similar circumstances, and

·        where more than one sentence is imposed on an offender, the combined sentences must not be excessive.

Aggravating and mitigating circumstances

The regulations also specify circumstances that courts should regard as aggravating, i.e. as justifying heavier sentences, and mitigating, i.e. as justifying lighter sentences.  The specified circumstances are the ones that frequently arise in criminal cases – e.g. the fact that the offender has previous convictions or planned the crime (aggravating) or that the offender pleaded guilty and showed remorse (mitigating) – but the regulations make it clear that courts can take account of other circumstances when appropriate.

Sentencing procedure

The regulations set out in some detail the procedures that courts must follow when imposing sentence on offenders.  The procedures themselves are not new but they are often disregarded, particularly by magistrates.  Now that they are laid down in the regulations, however, sentences may be set aside simply because the sentencing courts did not follow the mandatory procedures.

Pre-sentencing hearing

According to the regulations a court must hold a pre-sentence hearing in order to ascertain the facts needed to impose an appropriate sentence that is fair to the offender and society.  In particular the court must investigate the following:

·        the offender’s characteristics, including his or her social background, whether he or she will re-offend and whether society needs to be protected against him or her.  If the court is considering imposing a fine, it must know what, if anything, he or she can afford to pay.

·        the victim’s circumstances, in particular the impact of the offence on him or her.  As the learned Judge in Blessed Sixpence’s case explained, this means the court must get a victim impact statement, a written or oral statement explaining how the crime affected the victim and those around him or her.  Victims cannot be compelled to provide such statements, however, and if they decline to do so their wishes must be respected and the court must obtain the relevant information from other sources.

At the hearing the offender has a right to address the court and lead evidence in regard to sentence;  if the offender does so, he or she must be heard first.  The prosecutor can then address the court and lead whatever evidence he or she wishes, and the offender has a right of reply – which the court must explain to the offender.

Sentencing judgment

A schedule to the regulations sets out the form which a judgment on sentence must take, covering all the issues and factors a court should take into account in deciding on an appropriate sentence:

·        the crime charged, how the offender pleaded to it and the crime of which he or she was convicted

·        the relevant facts of the case

·        the law relating to the sentence to be imposed

·        any reports submitted – e.g. probation or medical reports

·        the normal range of sentences to be imposed for the crime, or the presumptive penalty for it

·        mitigating and aggravating features found to exist

·        the sentence and the mitigating and aggravating features justifying it.

The sentence and the justification for it must be explained in detail to the offender.

Guidance on Particular Sentences

In addition to laying down the procedures for sentencing, the regulations also explain when particular types of sentence – imprisonment, fine and community service – are to be imposed;  how courts should sentence offenders convicted of multiple crimes;  when sentences may be suspended or postponed;  and how to treat special categories of offenders such as children, women and elderly persons.

These provisions do not lay down any new law but they are a useful summary of principles the courts have developed over many years.

Application of the Regulations

One point that is not made in the regulations or in Blessed Sixpence’s case but should be made here is that the regulations apply to all criminal trials that take place after 8th August, 2023, when the regulations were published, even if the crimes were committed before then.

The reason is that the regulations deal with matters of procedural law, and procedural laws come into effect as soon as they are published.  Hence the beneficial effects of the regulations – and they are very beneficial – will be felt by everyone who is convicted of a crime if they have not been sentenced , however long ago the crime was committed.

General Comments

The regulations are a welcome development and should, if followed, bring more consistency in sentencing and more fairness to the justice system as a whole.

Unlike mandatory minimum sentences, the regulations do not take away courts’ discretion in sentencing because they allow a court to depart from the presumptive penalties so long as there are good reasons for doing so.  Rather than remove the courts’ discretion altogether, the regulations will make courts exercise their discretion more rationally.

The regulations are quite short and easy to follow.  The presumptive penalties are set out in a table for easy reference, and the sentencing principles are couched in clear language.  To the extent that the regulations need to be explained, Mutevedzi J’s judgment in Blessed Sixpence’s case is an excellent guide – full of learning but expressed in simple terms.

The regulations are not the last word in sentencing principles.  They can’t be:  the nature of crimes will change over the course of years and so will society’s attitude towards punishment.  For the foreseeable future however the regulations and the judgment in Blessed Sixpence’s case will be essential tools for judicial officers in their daily work in the criminal courts.

Altogether the regulations and the judgment are welcome and helpful additions to Zimbabwe’s criminal justice system.  Veritas applauds the Judicial Service Commission, the Ministry of Justice, Legal and Parliamentary Affairs and Mutevedzi J for producing them.

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