HOW COURTS KEEP SENTENCES WITHIN ACCEPTABLE LEVELS

After the accused pleads guilty or is found guilty by the court (judge or magistrate), sentencing proceedings commence. The court assumes an inquisitorial approach where the presiding officer acts as the main investigating body to ascertain all the facts, aggravating and mitigating circumstances before handing down an acceptable and appropriate sentence. There are many purposes of sentencing. Firstly, the desire to punish a person who is a wrongdoer who has offended against society and who has caused harm to the others. Secondly, the intention to prevent the wrongdoer from committing such an offence again (individual deterrence) and to deter others from engaging in similar conduct (general deterrence). Third, there is the hope that whatever sentence is imposed can possibly lead to rehabilitation.

According to the prevailing retributive theory of justice or punishment in South Africa and Zimbabwe, the guilty offender must attorn for every single one of their crimes and must be sentenced for each crime. The same applies if the convict is already serving other sentences.  Courts are permitted to impose several punishments as they are competent to impose. It often happens that the offender is convicted of more than one crime. In such cases, each individual sentence may be appropriate but the sum total (cumulative effect) of these sentences tends to be too high, too severe, disproportionate to the totality of the offender’s criminal conduct or physically impossible to be served. The cumulative effect may also arise in instances where the convicted offender had a previously suspended imprisonment sentence. A fresh conviction has the effect of triggering imprisonment for the new crime and the crime in respect of which the suspended sentence was previously handed down.

The longest prison sentence was handed down to Chamoy Thipyaso of Thailand in 1989 for corporate fraud through a chit fund (pyramid scheme). She was sentenced to 141 078 years in prison. The sentencing legislation in Thailand only allowed her to serve a maximum of 20 years imprisonment for fraud. She only served 8 years of that sentence before she was released. In 1994, Charles Scott Robinson (longest USA sentence) was sentenced to 30 000 years in prison in the USA for sexually assaulting six children. Martin Bryant shot 35 people in Australia and was sentenced to 1 035 years in prison without parole and 35 life sentences. The longest prison sentence in South Africa was handed down to Moses Sithole in 1997 for the 38 ABC murders. He was sentenced to a total of 2 410 years imprisonment. He will only be eligible for parole after serving 930 years of that sentence. The United Nations estimates that the global life expectancy is 72.6 years hence it is impossible for any human being to be imprisoned for three centuries.

There are three ways in which the cumulative effect can be kept within proportionate levels (if you watch US legal dramas you have heard of commuted sentences):

*Ordering the concurrent running of sentences

If the various sentences are imprisonment and correctional supervision, the court is permitted to order the various sentences it has handed down to run concurrently. In cases where the convicted offender is serving another sentence, the cumulative is often resolved by ordering the fresh sentence to run concurrently with the sentence the offender is already serving.

 Only similar sentences can run concurrently. If there is no order that the multiple sentences be served concurrently, then the sentences will be served consecutively. Bill Joe Godfrey was sentenced to 35 life sentences to be served consecutively. In the US, this is equivalent to 1 050 years in prison. In South Africa, life imprisonment has an undetermined length. There are varying periods for life sentences. A prescribed minimum life sentence for murder is 25 years, for rape is 15 years and for robbery is 10 years. Courts have the discretion to vary these sentences by considering the severity of the crime, the offender’s circumstances and public interest

*Reducing each sentence

The court can reduce each sentence to ensure that the total sentence is not excessive. Suspending the whole or part of any sentence also has the same effect. This approach is criticised on the basis that each individual sentence may be inadequate when viewed in isolation.

*Taking some counts together for the purposes of sentencing

This is often used in cases where the various counts are part of one transaction. This method is often discouraged because it makes it difficult for the court to ensure that the eventual sentence is adequate for each one of the crimes committed. Taking some counts together is not advisable or desirable in respect of serious offences such as rape and robbery where the proper approach is to impose separate sentences for each count.

Sources: Criminal Procedure Act 51 of 1977, Criminal Law Amendment Act 105 of 1997, Criminal Law (Codification and Reform) Act [Chapter 9:23], S v Sithole, S v Dodo 2001 (3) SA 382 (CC), S v Imbayarwo (HCAR 551/13) [2013] ZWBHC 85 (08 May 2013), S v Chirembwe (CBR No. R 1006/12) [2015] ZWHHC 162 (15 February 2015),S v Zinn 1969 (2) SA 537 (AD),S v Skhosana (20/2017) [2018] ZAGPJHC 14 (20 February 2018), S v Malgas 2001 (20 SA 1222 (SCA)