Overview
On 8 August 2023, Zimbabwe promulgated the Criminal Procedure (Sentencing Guidelines) Regulations 2023 SI No. 146/2023, (Sentencing Guidelines). The object of the guidelines is to “foster public confidence in the criminal justice system by promoting consistency and transformative justice in sentencing and eliminating unwarranted disparities in the punishment of offenders.”
From the onset, it should be made clear that the Sentencing Guidelines are not a new law, they were passed so as to compliment and enforce existing law. The Sentencing Guidelines were put in place to bring uniformity to sentences meted out to similar offenders for similar offences. They were published in accordance with section 334A of the Criminal Procedure and Evidence Act (Chapter 9:07) and as such do not introduce anything new
The case of State v Sixpence & 5 Others HH567/23 lays out the problem which sought to be addressed by the Sentencing Guidelines. The case was brought to the High Court on review and combined 6 cases. Each of the six offenders had been convicted separately for contravening s 70(1)(a) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) after having had sexual intercourse with a young person.
The offenders’ ages ranged from twenty years to thirty five years whilst the complainants’ ages were between thirteen and fifteen years. All the six were sentenced to varying penalties which commenced from as lenient as community service to as severe as six years imprisonment. The Judge in the matter, Justice Mutevedzi stated from the outset that the ranges of the ages of the offenders and victims were almost similar and yet there was that disparity in the sentences imposed. The most lenient had been a community service whilst the most extreme was a six year imprisonment sentence. The difference in the sentencing was therefore without basis.
The problem highlighted above therefore is essentially what the Sentencing Guidelines seek to address. All things being equal, the sentences of offenders for similar offences must show some similarity and not such a significant disparity.
Whilst the Sentencing Guidelines cover a wide array of issues, this article will focus on the considerations to be applied in relation to offenders and victims of crimes.
For Victims of Crime
The Sentencing Guidelines introduced what is called a “Victim Impact Statement” for the purposes of sentencing an offender. This is a stage in which the victim of a crime is asked about the effects the crime had on them as well as the outcome they think would best redress the situation. In the case of the State v Sixpence & 5 Others supra, the Judge had this to say about the assessment
“Like the offender, the victim’s characteristics are also important. The specifics to look for are the same as stated for the offender. The extra consideration here is the requirement for a court to investigate the impact of the offence on the victim(s). A court must endeavour to restore the dignity of the victims of offences. There is nothing spectacular about a victim impact statement. In plain language it is a written or oral statement made by the victim or his/her representative presented to the court at sentencing. Its primary purpose is to present an opportunity to the judicial officer to hear how a criminal action has affected the victim and those around him or her. In the process the victim assists the court to feel his/her trauma. There is no doubt that nobody can ever truly understand what another feels. It is therefore difficult if not impossible to cover the complete impact of a crime. The involvement of the victims in the process however may assuage the bruises they will have suffered because of the criminal activities.”
What this step does is to keep the victim involved in all the aspects of the case. This is a departure from the old practice where, after testifying in court, the complainant would go home and then later be told of the sentence upon inquiry. Now, the victim has a role to play in helping the court understand how they were affected by the crime. This is important as it removes the helplessness that comes with not knowing how the sentence will go and also the closure it brings to victims.
According to Mutevedzi J in State v Sixpence & 5 Others supra:
“With that consciousness, the law now obliges judicial officers to consider the impact of crimes on the victims. It birthed the concept of victim participatory rights. Whatever opinion one may hold, there is little argument that the stage of a criminal trial that victims are most concerned with is the punishment stage because they believe that it is sentencing which vindicates their suffering. A court cannot therefore purport to arrive at an appropriate sentence without hearing the victim.”
The importance of this exercise cannot be overemphasized. The assessment can be done at any time, either during the complainant’s evidence in chief or after a verdict has been pronounced and the court is about to move to sentencing.
For Offenders
The Sentencing Guidelines ensure that no matter where an offender is tried, there will be certainty in the sentence to be imposed. This also ties into the rights of people to be treated equally before the law in terms of section 56 of the Constitution of Zimbabwe Act No. 20 of 2013. It does away with disproportionate sentences and affords all accused persons the certainty that comes with the whole process.
Clause 12 of the Sentencing Guidelines calls upon a court, before sentencing, to consider a number of issues. It states as follows:
“12. Pre-sentencing hearing
(1) Prior to sentencing an offender, a court shall 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.”
Whilst the above list is not exhaustive, it gives an idea of the factors that the court considers in coming up with an appropriate sentence. The consideration of whether an offender is likely to commit similar offences is important as it keeps repeat offenders behind bars whilst being more lenient towards those who may not commit an offence again.
According to Mutevedzi J in State v Sixpence & 5 Others supra,
“In essence it is an assessment of the risk of a convicted person reoffending. Its objective is to reduce recidivism through incapacitating or indisposing high-risk offenders by imprisoning them on one hand, and to decongest prison facilities by diverting low-risk offenders from prison, on the other. My understanding of how this works is that it is not random. Rather it is a systematic application of established predictive risk factors which show whether or not an offender is predisposed to reoffending or not.”
The other consideration relates to the ability of an offender to restitute the victim or society. This is also important as it gives the offender a chance to make good any loss that may have been occasioned by their conduct.
As stated above, the major change brought by the Sentencing Guidelines is to introduce uniformity and certainty in sentencing offenders who commit similar offences, in a similar manner.
In addition to the two consideration, there are many other changes or improvements which resulted from the introduction of the new Sentencing Guidelines.
Sentencing Judgment Replaces Reasons for Sentence
The Sentencing Guidelines introduce a sentencing judgment, in place of reasons for sentence. This is to give a more legal structure as well as uniformity than to just require magistrates to provide reasons for a particular sentence.
Categorization of Offences
The offences are now categorized according to whether there are aggravating or mitigating circumstances. This means with aggravating circumstances, there are higher penalties than with mitigating circumstances. This exercise is no longer just perfunctory but must be given due regard.
Presumptive Penalty
The Sentencing Guidelines introduce a presumptive penalty. These are the median between an offence committed in aggravating circumstances and another committed in mitigating circumstance. This again speaks to uniformity of sentences. Where a judicial officer is to depart from the presumptive penalty, he or she must show the reasons for that departure.
Conclusion
It is important that members familiarize themselves with the Sentencing Guidelines and their roles therein, whether from the perspective of the offender or of the victim. For the offender, there is certainty in sentencing, and for the victim, there is involvement throughout the whole trial process until finality. This is a step in the right direction as the nation strives to do justice between people whilst keeping communities safe.
