Structuring the exercising of sentencing discretion in South African criminal courts

Abstract

The imposition of a sentence in South African criminal courts takes place through the exercise of sentencing discretion by the tribunals. It is trite law that such discretion is broad, and belongs to the sentencing court. The courts derive the broad discretion from the sentencing legislation that provides for the different forms of punishment, sentencing jurisdictions for the various court levels, and those that deal with mandatory minimum sentences in South Africa. The courts consider various relevant factors based on the so-called triad, which consists of the severity of the crime, the offender’s personal circumstances, and the interest of society, to extrapolate appropriate sentences for convicted offenders. The factors remain the same for every case, but there is little guidance as to how much weight the courts should attach to each element to promote consistency in sentencing. Sometimes the sentences are grossly disproportionate to the offence as a result of overemphasising the seriousness of the crime, or are too lenient because of overemphasising the personal circumstances of the offender. The sentencing legislation legitimises the subjective nature of the exercise of sentencing discretion, the outcome of which is an inconsistent approach to sentencing by courts for similar offences. Legislative intervention is needed to amend the sentencing legislation in a manner that assists in the structuring of the exercising of sentencing discretion and promotes consistency in sentencing. To this end, the South African Law Reform Commission in the year 2000 recommended the amendment of the sentencing legislation to make provision for the establishment of a Sentencing Council that would develop sentencing guidelines that might better structure the exercise of sentencing discretion, and which would promote consistency in sentencing. The sentencing guidelines models of England and Wales and the Federal Sentencing Guidelines of the United States of America are explored to determine the manner in which they structure the exercising of sentencing discretion to promote consistency in sentencing, with predictive predetermined sentences that minimise disparities in punishments. In this research, specific recommendations are made to improve the South African sentencing system to promote greater consistency in sentencing. The basis of the recommendations emanate from the examination of sentencing models from the United States of America’s Federal Sentencing Guidelines, the sentencing guidelines of England and Wales, and the work done by the South African Law Commission. Other recommendations emanate from sentencing legislation adopted by South Africa in which its primary objective sets a standard approach to sentencing for specific listed severe offences.