By Biba Tisankhe Mwape
Sentencing in criminal law refers to the punishment pronounced by courts on guilty individuals. it is guided by principles such as proportionality, parity, totality, restraint which emphasizes incarceration only when necessary; and the consideration of mitigating and aggravating factors that influence the fairness of the punishment. these principles aim to uphold justice and maintain predictability in sentencing outcomes.
Introduction
In the world of criminal proceedings, the term sentencing is used to refer to the punishment that courts pronounce on a guilty person for committing a crime. Principles exist that serve to direct the actions of the court in respect to sentencing so as to maintain uniformity and predictability to uphold justice. Criminal punishment has served as the standard solution to maintaining law and order thereby delivering justice to the land by the courts (Kelly Kapianga “Sentencing on Zambia” South African Journal of Criminal Justice, 2020) [1] This article will provide a brief history into the development of criminal punishment systems that eventually led to the formation of the sentencing principles. It will also highlight some of the key principles that govern sentencing practices and the rationale behind them through the understanding of objective purposes of such principles.
Brief History
A brief look into the history of Criminal punishment sets out the appreciable significant developments that principles of sentencing have seen over the years. The system of punishment initially adopted, the Indeterminate System, entailed that a sentence pronounced be subject to such degrees of discretion from the courts that the offender only knew the term of their punishment upon fulfilment of it. Additionally, sentences varied significantly for crimes of similar nature with similar facts as there was no fixed guide applied when arriving at a particular sentence. Later on the Determinate System was developed around 1970. It dictated a process more fixed and less subjected to overwhelming discretional abilities from the courts in pronouncing punishment. This was achieved through legislation passed that provided to draw limits on discretion or outright deny it in certain circumstances by providing already fixed punishments for select crimes (King Ryan. “Balancing the Goals of Determinate and Indeterminate Sentencing Systems” Federal Sentencing Reporter, 2015) [2]. It is from this system that we can accredit the basis of principles of sentencing. Their derivation and refinement over time meant to achieve the purpose of consistency of criminal punishments. As of present these principles have been modified across various jurisdictions to realize such purpose.
Principles of Sentencing
Principles are standards or guidelines applied to achieve a particular action or outcome, instructions to be followed in order to arrive at a particular decision. The principles of sentencing are: Proportionality (with parsimony as a related principle), Parity, Totality, Restraint and the Mitigating and Aggravating factors to determine the suitability of punishment for a guilty person. The first principle, proportionality, is seen as the fundamental principle in sentencing. It bears the idea that the sentence pronounced should be equivalent to the seriousness of the crime committed combined with the degree of blameworthiness that the offender is found to have had when committing the offence ( Erin Winocur, Danielle Robitaille and Maya Borooah, Sentencing Principles and Practice 2nd edition (Emond Montgomery Publications, 2023) [3]. It takes into account various factors unique to the case at hand in determining what kind of punishment is fair and just for the crime committed. Perhaps another principle worth mentioning under proportionality is Parsimony which is a principle related to proportionality but not similar to it. According to Tony Draper, parsimony, in the philosophy of punishment, stipulates that any punishment pronounced that is greater than what is required to realize a just end is considered unjust. This can be seen in the Zambian case of Semmy Lasco Kavinga v. The People (2018) Appeal No. 51 [4] witnessed how a 105-year prison sentence that the courts had pronounced was in violation of Article 15 of the Zambian Constitution on the freedom from torture (The Constitution of Zambia (Amendment) Act No. 2 of 2016) [5]
This was due to the fact that the combined sentence was seen to be excessive in the attempt to realize justice therefore making it unfair. Parity is a second principle of sentencing. It pursues consistency in the kinds of punishments pronounced for cases of a similar nature and similar circumstances under which they were committed (Tony Draper “An Introduction to Jeremy Bentham’s Theory of Punishment”. Journal of Bentham Studies UCL Press, vol. 5, issue no. 1 (2002) [6] This ensures uniformity and predictability for all parties concerned during criminal proceedings. Tony further notes that the use of precedence is relied on preferably to draw upon for guidance on what punishment is appropriate for the case in question. Consider for instance, the crime of theft which carries a sentence of five years imprisonment according to Section 272 of The Penal Code Act No. 87 of the Laws of Zambia [7] When a case is presented and precedent in which the circumstances are significantly similar to the matter in question is applied, the courts use the guidance from such precedent to determine the most suitable punishment for the offender. It also serves to give insight beforehand of the punishment most likely to be pronounced on the offender to other parties involved in the dispute for instance their legal representatives. A third principle of sentencing is Totality. It applies to situations where an offender is found guilty of multiple offences in a particular criminal proceeding. It makes reference to the consecutive and concurrent approaches used by courts to calculate sentences of the offender. Particularly it is used when the consecutive form of calculating is applied in that it allows for the total or combined punishment pronounced on the offender to not exceed the proportionality of the punishment that is supposed to be imposed on them. The related principle of parsimony, mentioned earlier under proportionality, then applies in that if the punishment exceeds the required extent to realize justice then it is deemed to be unjust and thereby unfit as far as sentencing principles are concerned. Restraint is the fourth principle of sentencing that implies an offender be placed away from society for the crime they have committed. This is most commonly achieved by use of prison settings to incapacitate offenders. The rational is that the removal of the offender from society will serve to reduce the rate of the crime they engaged in or serve to remove the likelihood of such a crime being repeated as a result of the offender’s continued existence as part of such a society should they not be imprisoned. It noteworthy that this form of punishment must be used only when no other option of sentencing is sufficient for the crime the offender has committed. The question asked to determine this is whether he crime committed is enough to warrant the penalty of prison time to an offender. It presents various rippled effects some aspired for and others wholly negative. For instance, time in a prison with rehabilitation facilities may serve to reform a criminal therefore nullifying the threat of them committing more crimes when they are reintroduced into society. On the other hand, it may prove worse when the criminal after serving time in prison only picked up vices that make them a further threat to society when they are reintroduced into it upon completion of their prison time. The structure of the prison is the fundamental to the realization of a positive outcome for this sentence to be effective as far as the objectives of principles go. Lastly, the consideration of mitigating and aggravating factors as a principle of sentencing. The United Kingdom Sentencing Council acknowledges these factors in its determination of the most suitable sentence to issue to an offender. Mitigating factors are often extenuating circumstances that serve to reduce the blameworthiness of an offender before the courts in turn reducing the sentence pronounced over them. Aggravating Factors on the other hand increase the blameworthiness of an offender before the courts of law entailing weightier punishment is pronounced over the offender. Mitigating factors may include; the degree of impact that the offender’s action had on the victim in how much harm or loss victim suffered, the offender’s past criminal record or absence of it, whether the offender was an accessory to the crime. Even the level of remorsefulness presented by the offender in particular instances can qualify as enough of a mitigating factor. Aggravating factors include the offenders existing criminal record with attention paid to what kind of crimes they committed in the past. Additionally, how that crime was committed is considered when pronouncing punishment based off of this kind of principle. The case of Kalenga v. The People (1968) ZR 165 (HC) [9] also noted how the frequency of a particular crime committed in a particular society is a factor courts consider when determining the sentence to pronounce over an offender. Objectives of the Principles of Sentencing Having explained the various sentencing principles, it becomes a key note to mention that the purpose of punishment is not for a retributive aspect (which he regarded as barbaric) but for the consequences that the suffering imposed on an offender by such punishment helps realize (John Gardener, H.L.A Hart’s Punishment and Responsibility: Introduction to The Second Edition, 2008) [10] . That is to say, the harshness of the punishing act itself isn’t the concern, what is important is the effect or outcome of it. Does it deter other would be offenders? Does it teach the current offender when released to not commit the same crime? In this respect the purposes behind the principles of sentencing include: Deterrence which implies the ability of a punishment imposed to discourage future crimes from being committed. It serves to instill fear of the consequences that come with successful prosecution and the resulting suffering experienced from the punishment pronounced. Protection of the public is another reason for accurate pronouncement of punishment. It leans on the fact that it is the duty of the criminal procedural system to present themselves capable of managing the rate of crime to members of the public. The case of Zulu v. The People (2010) ZMHC 50 [11] evidenced that one of the objectives in line with the principles of punishment is the effective management of crime to protect the public from harm caused. Rehabilitation is another noteworthy objective of the principles that guide punishment in criminal law. It implies the reformative aspects of offenders to ensure that upon reintegration into society they do not continue a life of crime. It can involve the education of convicted persons, equipping them with valuable life skills training and even addressing the trauma and mental conditions that they may have or most likely acted off of when committing the crime.
Conclusion
This analysis of the principles of punishment, their development, rationales and objectives has served to provide insight as to what guidelines the courts follow in their pronouncement of punishments for criminal offences. The understanding of such rules of sentencing has aided in developing these principles further for the refinement necessary to pursue justice in this aspect of criminal law.
REFERENCES
Legislation
The Constitution of Zambia (Amendment) Act no. 2 of 2016.
The Penal Code Act No. – Of the Laws of Zambia.
Cases
Kalenga v The People (1968) ZR 165 (HC).
Semmy Lasco Kavinga v The People (2018) Appeal no. 51
Zulu v The People (2010) ZMHC 50 (HC)
Books
Erin Winocur, Danielle Robitaille and Maya Borooah, Sentencing Principles and Practice 2nd edition (Emond Montgomery Publications, 2023).
John Gardener, H.L.A Hart’s Punishment and Responsibility: Introduction to The Second Edition (University of Oxford Publishing co. 2008).
Journal Articles Kelly Kapianga. “Sentencing on Zambia” South African Journal of Criminal Justice, Vol. 33, no.1, Jan. 2020, pp. 66+ Gale Academic OneFile link.gale.com/apps/doc/A666966478/ONE?u=anon~967b48b0&sid=googleScholar&xid7b7b664, Accessed 29th December 2024) King Ryan.
“Balancing the Goals of Determinate and Indeterminate Sentencing Systems” Federal Sentencing Reporter vol. 28, No.2 (2015): 85-87.
Tony Draper “An Introduction to Jeremy Bentham’s Theory of Punishment”. Journal of Bentham Studies UCL Press, vol. 5, issue no. 1 (2002).
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About the Author:
Biba Tisankhe Mwape is a third year law Student at the University of Lusaka currently serving as Researcher at the Legal Aid Initiative