Unpacking the new sentencing guidelines

Herald Reporter

SENTENCING disparities that resulted in one offender being jailed 15 years for theft in Chiredzi, while another one is locked up for three years for the same offence under almost similar circumstances in Chipinge, are now history following the recent gazetting of the new sentencing guidelines.

The discretion exercised by judicial officers was too wide, making it difficult for court users to predict the likely penalty for a particular offence.

Hats off to the Government for enacting the new guidelines that seek to promote consistency in the sentencing of offenders.

The guidelines reduce the wide differences in sentences that are imposed on offenders convicted for the same offence and in similar circumstances.

The sentencing guidelines, are an answer to an outcry over wide disparities in penalties imposed on different offenders who would have committed similar offenses.

Such inconsistencies in sentencing resulted in court users losing confidence in the country’s judicial processes.

Some individuals saw such inconsistencies as signs of inherent corruption in the court processes. The coming into effect of these sentencing guidelines brings to bed such allegations.

This article seeks to unpack the newly enacted sentencing guidelines for court users to have an appreciation of the new sentencing regime.

What is a sentencing guideline?

This is a law that has been passed to standardise sentences handed down by the courts on persons convicted of crimes.

This law was published as the Criminal Procedure (Sentencing Guidelines) Regulations, Statutory Instrument 146 of 2023.

Sentencing Guidelines do not create a new law, they restate the law that has always been used in the criminal justice delivery system.

Their focus is to promote consistency in the sentencing of offenders convicted of crimes or offences.

Although the Sentencing Guidelines are primarily used by judicial officers to determine the sentences to impose for different offences, they can also be used by legal practitioners, persons accused of crimes, victims or survivors of crime, law-based organisations, and the general public to predict the likely sentence in a given case.

In this regard, knowledge of Sentencing Guidelines is not only limited to the legal fraternity, but to the generality of the public.

Sentencing Guidelines indicate to the judicial officer the appropriate sentence that must be imposed where certain factors are found to exist. These are the factors that either increase or decrease the moral blameworthiness of the offender and the likely penalty. Such factors are known as the aggravating and mitigating factors respectively.

The Sentencing Guidelines provide a presumptive penalty for offences. The presumptive penalty is the starting point for the judicial officer.

Where there are no other reasons justifying departure from the presumptive penalty, the judicial officer is expected to pronounce such a presumptive penalty as the sentence.

The judicial officer must give reasons for imposing the presumptive penalty or for imposing another offence other than the presumptive penalty where there is a departure from the presumptive penalty.

Sentencing Guidelines do not take away the sentencing discretion of judicial officers, they still retain it.

However, Sentencing Guidelines require judicial officers to give reasons for their departure from the presumptive penalty. In this manner, the discretion is not eliminated, but guided.

Purpose of the sentencing guidelines

The guidelines promote consistency in the sentencing of offenders by reducing the wide differences in sentences that are given to offenders convicted of similar crimes committed in similar circumstances.

They also promote transparency in the sentencing of offenders by having standardised sentencing procedures.

The guidelines also seek to inform judicial officers on the appropriate sentences that may be imposed for different offences in accordance with real and substantial justice.

They seek to inform and educate the public on the presumptive penalties applicable to different offences.

Overview of the process that led to the development of the sentencing guidelines

The sentencing guidelines were introduced in 2016 through section 334A of the Criminal Procedure and Evidence Act [Chapter 9:07].

This section provides for the convention of the Judicial Conference on sentencing guidelines.

In fulfilment of the mandate reposed on it by the law, the Honourable Chief Justice constituted the Judicial Conference Council (the Council) comprising 17 members, being representatives of the judges, prosecutors, the Attorney-General’s Office, magistrates, the Law Society of Zimbabwe, academia and the Ministry of Justice Legal and Parliamentary Affairs.

In this regard, the composition of the council mimicked to a large extent, the composition of the Judicial Conference as prescribed by law.

The Sentencing Guidelines were developed under both the narrative and Table of Presumptive Penalties (TOPP).

All offences as included in the Criminal Law (Codification and Reform Act) [Chapter 9:24] were included in the TOPP, save for those related to witchcraft, witch-finding, and treason.

The Council was aware of the fact that the Sentencing Guidelines are not introducing a new law; they are simply applying the law that is readily available, in the manner in which it should be applied.

The principles of sentencing were derived mainly from authoritative texts. These included the theories and objectives of sentencing which are reproduced in the narrative part of the sentencing guidelines.

The narrative also provides additional guidelines that address factors relevant to each offence or class of offences included in the TOPP and it balances the explanatory part and the actual TOPP as an approach to avoid a bulky set of Sentencing Guidelines.

Overarching principles of sentencing

The overarching principles in the Sentencing Guidelines recognise that whilst the theory of retribution underpins criminal legal systems, the trend in the treatment of offenders has since evolved from retribution per se to rehabilitation and correction of offenders.

Thus, the assessment of an appropriate sentence must always start with the consideration of non-custodial modes of punishment and progress to imprisonment only for augmented offences.

Also heavily embedded in the sentencing guidelines is the human rights element that recognises the hardships that punishment in general and imprisonment, in particular, exert on the key vulnerable populations.

These unprotected members include people with disabilities, the elderly, pregnant and nursing mothers.

They are singled out as categories deserving of different treatment and are provided for in the narrative part of the guidelines.

Further, aggravating factors generic to all offences are singled out and provided for in the narrative part of the guidelines. A similar treatment is given to mitigating factors. Factors of general application are clustered together to avoid unnecessary tedium and duplication.

The format of the sentencing guidelines

Section 334A (7) of the Act provides that:

“(7) Unless a judicial Conference agrees upon some other form, draft sentencing guidelines shall be in the form of a table of presumptive penalties supplemented by additional guidelines addressing such of the factors referred to in subsection (5) as are relevant to each offence or class of offence included in the table.”

The narrative component

The law prescribes that the sentencing guidelines must be in the form of regulations. Therefore, the sentencing guidelines have a preamble and other features of statutory instruments.

• The form of the Sentencing Guidelines is set out in s 334A (7) of the Criminal Procedure and Evidence Act.
• One of the features is that the regulations must contain a Table of Presumptive Penalties. The narrative component, therefore, directs how the table of presumptive sentences is to be interpreted and applied.
• On the question of departures from the Sentencing Guidelines, Section 5 of the regulations states that a court is required to give reasons for departing from guidelines. This must not be interpreted to mean “command sentencing”. The only requirement is that a judicial officer must give reasons for the departure.

The table of presumptive penalties

The provisions of 334A (1) define a presumptive penalty and a Table of Presumptive Penalties.

The Table of the Presumptive Penalties set forth for each offence included in the table, among other things, a presumptive penalty together with aggravating and mitigating factors.

The presumptive penalties range from three months imprisonment to twenty years imprisonment. The most frequent presumptive sentence is two years.

The new sentencing procedure provides for two hearings in criminal trials, namely, the main trial hearing and the sentencing hearing.

The definition of the offences

In view of the codification of most offences, each offence in the guidelines is defined in accordance with the provisions of the Criminal Law (Codification and Reform) Act, [Chapter 9: 23] (the Criminal Law Code) or the statute creating the offence where applicable, rather than the common law definition.

Thus, murder, for instance, is described as a contravention of s 47 of the Code. This is the manner in which charges are now framed and put to accused persons.

Categorisations of offences

Each offence that is defined in the Criminal Law Code, whilst appearing under a specific heading, is further categorised and re-categorised according to the aggravated or mitigating circumstances under which the offence is committed.   For instance, contravening section 113 of the Code or theft can range from pickpocketing to grand bank heists.

It can also range from theft by finding to theft of trust property and theft from an employer.

The range is not only in the degrees of moral blameworthiness attached to each theft but also finds expression in the punishments that are appropriate. These range from a mere fine to imprisonment for 25 years or both.

Assessment of the presumptive penalty

The main purpose of publishing Sentencing Guidelines is to regulate and standardise the sentencing discretion that is reposed in sentencing courts to within a pre-set range to avoid wide disparities for similarly placed offenders.

Section 334A defines a presumptive penalty as “penalty expressed as a specific amount of a fine or a specific period of imprisonment or both that is midway between an augmented penalty which may be imposed in aggravating circumstances (whether or not those circumstances are specified in the enactment concerned) and a diminished penalty which may be imposed in mitigating circumstances (whether or not those circumstances are specified in the enactment concerned)”.

The guidelines are configured in such a way that a presumptive penalty is recommended where the offence is committed in mitigating circumstances, being the median diminished penalty and another presumptive penalty is recommended where the offence is committed in aggravating circumstances, thereby constituting the median augmented penalty.

The presumptive penalties mark the starting point in the assessment of any penalty and the reason for departing from it has to be given in the sentencing judgment.

The court must decide and pronounce its own sentence based on the presumptive penalty. A presumptive penalty is not a sentence. It only becomes a sentence when pronounced by the court.

INTRODUCTION OF A NEW SENTENCING PROCEDURE

Pre-sentencing inquiry or hearing

Section 334A (5) provides that the Sentencing Guidelines may relate to all matters regarding the sentencing of offenders and in particular, the inquiries and investigations to be conducted by courts prior to sentencing offenders.

The current practice is for the sentencing court to record mitigation and aggravation before sentencing the offender or where the penalty is a minimum mandatory one, to record submissions on special circumstances.

This perfunctory procedure hardly takes time and does not constitute the investigation envisaged in the law.

Accordingly, section 12 of the sentencing guidelines now provides that: –

(1) Prior to sentencing an offender, a court is now required to inquire into and investigate the following: –

(a) the characteristics of the offender including his or her social background;

(b) the characteristics of the victim(s) of the offence including the impact of the offence on such victim(s);

(c) the probability of the offender committing a similar, or other offences;

(d) the desirability or need to protect the victim(s) or society from the offender; and

(e) the ability of the offender to make restitution to the victim(s) or to society.

(2) The offender shall address the court first, personally or through a representative on matters listed in subsection (1) and on any other mitigating factors. In doing so, the offender may call the evidence of witnesses.

(3) The State shall have the onus to produce proof of the offender’s previous convictions if any and evidence on all the matters listed in subsection (1) if any.

(4) The court shall explain to the offender his or her right of response and shall afford the offender the opportunity to respond.

Victim impact assessment

Unlike in the past when a victim would be asked to go home after giving evidence, the new guidelines allow for participation of the victim to the end of the matter.

Further, the victim was never heard by the sentencing court. Put differently, the impact of the offence on the victim was not investigated or taken into account in sentencing the offender.

Most jurisdictions are increasingly making use of victim impact assessments in determining appropriate penalties.

A new procedure of sentencing was adopted for all courts as set out in the sentencing guidelines. The procedure accommodates the introduction of victim impact assessments and evidence of such impacts.

A victim impact statement is defined in the guidelines as a “pre-sentencing statement made by the victim of a crime or other person and presented to the court that details the physical, psychological, social or financial consequences of the offence on the victim or any other person connected to the victim.”

Sentencing judgment

When passing a sentence, a judicial officer is required to write a sentencing judgment, in which he or she justifies the penalty.

The Second Schedule (section 13) of the sentencing guidelines provides for the structure of the sentencing judgment. This is a measure to further standardise the sentencing of offenders. Sentencing courts are required to follow all the necessary steps laid out in the guidelines.

This is a departure from the “reasons for sentence” that courts were giving as justification of the sentence arrived at. These were ordinarily and usually scant and not properly discussed to indicate how they affected or persuaded the final sentence.

The sentencing judgment requires the court to thoroughly examine all the facts relevant to the sentence and then indicate how such facts affect and justify the final sentence.