SENTENCING GUIDELINES FOR SOUTH AFRICA: LESSONS FROM ELSEWHERE S S TERBLANCHE* Professor of Law, Department of Criminal Law and Procedure, Unisa INTRODUCTION In 2000 the South African Law Commission recommended that a sentencing council be established in South Africa.1 The setting of sentencing guidelines would be one of the primary functions of this council.2 The idea of sentencing guidelines is foreign to most South Africans. As a result there is little clarity as to what is meant by sentencing guidelines. It could range from any form of guidance giving to a sentencer, to numerical sentencing guidelines contained in a grid,as developed in the United States of America. The object of this contribution is to describe different forms of sentencing guidelines as applied (or formerly applied) in a variety of foreign legal systems.3 The article is mostly descriptive,attempting to provide a better sense of what is meant, or could be meant, in sentencing law when mention is made of sentencing guidelines. To put it in a proper South African perspective it is important to briefly restate the framework within which sentencing guidelines are proposed for South Africa. A BRIEF OVERVIEW OF THE LAW COMMISSIONS PROPOSALS The need for sentencing guidelines The South African sentencing system requires substantial reform. The Law Commission found4 that an ideal sentencing system * LLD (South Africa). A number of institutions made this research possible. I would like to thank the Institute of Criminology, University of Cambridge and the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany for the opportunity to spend time there. I would also like to thank UNISA for the grant that enabled me to travel to Europe, and the NRF for the grant to attend the Second International Conference on Sentencing and Society in Glasgow (2729 June 2002). 1 South African Law Commission Report (Project 82):Sentencing (A New Sentencing Framework) (December 2000) (hereinafter the Report). Available at wwwserver.law.wits.ac.za/salc/report/report.html [28 October 2003]. Legislation along these lines is on the legislative programme of the Department of Justice and Constitutional Affairs.More pressing matters seem to have prevented its actual submission to Parliament.Since 17 Jan 2003 the Law Commission shall be known as the South African Law Reform Commission (s 5 of Act 55 of 2002). 2 See the discussion below. 3 Since South Africa appears to be taking an African lead with respect to sentencing guidelines, there is, unfortunately, no material available for an African perspective. 4 In Report: Sentencing (A New Sentencing Framework) (Project 82) (December 2000) para 1.43 and the preceding Discussion Paper 91: Sentencing (A New Sentencing Framework) (Project 82) (2000) (hereinafter the discussion paper) Part II para 2.5. 858 SENTENCING GUIDELINES FOR SOUTH AFRICA 859 should be seen to promote consistency in sentencing, deal appropriately with concerns that particular offences are not being regarded with an appropriate degree of seriousness, allow for victim participation and restorative initiatives and, at the same time, produce sentencing outcomes that are within the capacity of the State to enforce in the long term. Sentencing guidelines are ultimately aimed at consistency. The first two aspects that are mentioned in the quotation above focus on consistency. The lack of consistency in sentencing is a major problem in South Africa, as it is in other countries where sentencers have a largely unfettered discretion in imposing sentence.5 It is fairly widely accepted that there are four techniques that can be used to reduce disparity, namely the enactment of statutory sentencing principles, various systems of sentencing guidelines, judicial self-regulation and mandatory minimum sentencing schemes.6 The Law Commission concluded that the best way of achieving the ideal system is,first,clearly to state the basic sentencing principles in legislation and, secondly, to set up a sentencing council to provide sentencing guidelines.7 Before looking at various kinds of sentencing guidelines, let us briefly consider the proposed basic sentencing principles. The basic sentencing principles The Law Commissions recommendations regarding the basic sentencing principles are contained in a Draft Sentencing Framework Bill.8 Overall, the purpose of sentencing is stated as being to punish offenders for the offence of which they have been convicted.9 Through this statement the draft legislation takes a clear stand in favour of retribution as dominant sentencing consideration. The next general principle is that the seriousness of the crime should determine the severity of the sentence.The seriousness of a particular offence has to be established in relation to other offences, and not in a vacuum.10 Proportionality between all offences is, therefore, required. This second principle is refined by directly connecting it to two specific characteristics, 5 Such countries include the USA, England, Scotland (cf David M Walker The Scottish Legal System: An Introduction to the Study of Scots Law 8 ed (2001) 5637),Australia and the Netherlands.Countries not allowing for a largely unfettered discretion do not have the same problem see, e g, the text at note 155 with respect to the position in Germany. The problem has received little attention in local research, but has been noted in works such as E M Burchell et al South African Criminal Law and Procedure vol I General Principles of Crminal Law 2 ed (1983) 80; J K Lund Consistency as a principle in sentencing (1983) 7 SACC 3ff; H C Nicholas Consistency and discretion in sentencing in the courts in James Midgley et al (eds) Crime and Punishment in South Africa (1975) 14956; S S Terblanche The Guide to Sentencing in South Africa (1999) 1423. 6 See Andrew Ashworth Structuring sentencing discretion and Four techniques for reducing sentence disparityin Andrew von Hirsch & Andrew Ashworth (eds) Principled Sentencing:Readings on Theory and Policy 2 ed (1998) 21517 and 227. 7 The Report op cit note 4 para 1.44 8 The Report op cit note 4 at 99ff. 9 Section 2. In referring to the offences of which . . . convicted the Commission decided against what is termed real-offence sentencing for a discussion see Michael Tonry & John C Coffee Jr Enforcing sentencing guidelines: Plea bargaining and review mechanisms in Andrew von Hirsch et al (eds) The Sentencing Commission and its Guidelines (1987) 15263. Real-offence sentencing is seen by some as the only way of curbing the effect of plea bargaining on sentencing guidelines. For more on plea bargaining, see the text at note 184. 10 Section 3(1). This is in contrast to the view currently mostly favoured, namely that other cases are of little assistance in establishing an appropriate sentence in the current instance see the text at note 143. 860 THE SOUTH AFRICAN LAW JOURNAL namely the degree of harmfulness (or risk of harmfulness) of the offence and the degree of culpability of the offender.11 Roughly speaking, this means taking into account the amount of harm involved (or potentially involved) in the commission of the crime, and the extent to which the offender can be blamed for this harm. Subject to this primary principle of proportionality, the draft legislation also provides for an optimal combinationof aims towards which the sentence should strive. These aims are (1) restoring the rights of victims, (2) protecting society and (3) affording the offender the opportunity of a crime-free life.12 Rather than requiring one of these aims to be selected, one should rather attempt to discover an optimal combination. The sentence proportionate to the seriousness of the offence may be adjusted to a moderate extent by the presence or absence of previous convictions related to the current offence.13 The guidelines The primary function of the proposed Sentencing Council will be to draw up sentencing guidelines. In so doing the Council will be bound by the above-mentioned basic principles.14 A guideline is defined in the draft legislation in the following terms: A sentencing guideline specifies sentencing options and their severity for a particular category . . . or sub-category of offence.15 A guideline will therefore have to make mention of a particular category or sub-category of offence, and then specify a sentencing option that should be imposed for that offence, as well as its quantum. The offences will have to be graded in terms of seriousness, and ranked accordingly.16 Specific provision is made for the inclusion of three sentencing options, or any combination thereof, in the guidelines, namely imprisonment, a fine and a community penalty.17 A guideline may provide for a range of sentences, allowing a 30 per cent variation in quantum up or down from the basic guideline.18 The guidelines may also provide for the suspension of the whole or part of a sentence.19 There is also provision for the Sentencing Council to specify specific guidelines for previous convictions, as long as such guidelines are no more than moderately different from the standard guidelines, and as 11 Section 3(2). 12 Section 3(3). Points (2) and (3) encompass what would traditionally have been referred to as deterrence, prevention and rehabilitation, but with a different focus. 13 Section 3(4). There are a few further basic principles, but they are not of current importance. 14 Section 5(3) Sentencing guidelines are determined by applying the sentencing principles in section 3. . . . 15 Section 5(1).Reference to category ...or sub-category of offenceis necessary since our criminal law is uncodified. It also allows more than one similar type of offence to be included in one offence category. 16 Section 5(3)(a). 17 Section 5(2). 18 Section 5(7). For example, if the basic guideline provides for 30 months imprisonment for a specific category of offence,the guideline may provide for a range of from 21 to 39 monthsimprisonment (9 months being 30% of 30 months). 19 Section 5(7)(b). SENTENCING GUIDELINES FOR SOUTH AFRICA 861 long as some relationship with the current offence is factored in.20 The draft legislation leaves little room for the guidelines to be vague. In determining the extent of the guidelines account must also be taken of the capacity of the correctional system, both with respect to prisons and community corrections.21 SENTENCING GUIDELINES: THE AMERICAN WAY Introduction On 1 May 1980 Minnesota was the first American state to put into operation a system of sentencing guidelines.22 The guidelines were the result of the efforts of the Minnesota Sentencing Commission. At the time it was a revolutionary new way of sentencing.23 Even though the Minnesota sentencing guidelines might be reasonably well-known in South Africa,24 it is useful briefly to look at them again. They are characterized by a grid, or matrix a two-dimensional object resembling a crossword puzzle. An extract from the official grid is represented below in Figure 1, followed by an explanation of its essential features. Criminal history Seriousness level of offence 0 2 4 6 or more 11. Murder, 2nd degree (intentional) 306 346 386 426 299-313 339-353 379-393 419-433 8. Aggravated robbery 48 68 88 108 44-52 64-72 84-92 104-112 5. Simple robbery/residential burglary 18 28 38 48 36-40 46-50 2. Theft crimes ($2 500 or less) 12 13 17 21 20-22 FIGURE 1: Extract from Minnesota sentencing grid25 20 The manner in which previous convictions are crafted into guidelines will always present a major challenge to any guidelines system.See,for examples of detailed discussion of some of these difficulties,Julian V Roberts The role of criminal record in the sentencing process in Michael Tonry (ed) Crime and Justice: A Review of Research vol 22 (1997) 30362 and Andrew Ashworth Sentencing and Criminal Justice 3 ed (2000) 16274. 21 Section 5(3)(b). 22 Cf Von Hirsch et al op cit note 9 at 177. Some sources erroneously use 1981 as date of commencement. 23 Cf Milton Heumann Plea bargaining: Process and outcome (2002) 38 Criminal Law Bulletin 630 at 636. See also David R Lee The Impact of State Sentencing Commissions and Their Guidelines on Prisons and Crime (2001) (unpublished doctoral thesis, University of Maryland) 9 (a courageous and ambitious effort, into unchartered territory). 24 They have been discussed or mentioned in a number of local publications cf Jan H van Rooyen Doelgerigte straftoemeting: n regsvergelykende ondersoek na wyses om straftoemetingsdiskresie te reguleer (1992) 55 THRHR 386410; D P van der Merwe Sentencing (1991, updated 1998) 5ff. 25 Minnesota Sentencing Guidelines Commission Minnesota Sentencing Guidelines and Commentary (2003) 48; effective from 1 Jan 2003 available at www.msgc.state.mn.us/Guidelines/guide03jan.pdf [28 October 2003]. Cf also the new Minnesota Sentencing Guidelines and Commentary (effective from 8 August 2003), available at www.msgc.state.mn.us/Guidelines/guide03aug.pdf [28 October 2003]. 862 THE SOUTH AFRICAN LAW JOURNAL Each row of the grid represents felonies26 of a pre-determined seriousness. The Minnesota grid contains 11 seriousness levels, of which four have been included in Figure 1. The columns of the grid represent a pre-determined representation of the offenders criminal history,27 in seven levels, from 0 to 6 or more,of which four are included in Figure 1.In the cells where the various rows and columns intersect, a number plus (sometimes) a range of numbers can be found, representing the duration of imprisonment that should be imposed. For example, an offence of level 5 (such as simple robbery) and a criminal history of level 4 should attract a sentence of 38 months imprison- ment. The italicized numbers in the same cell are the range within which sentences may be imposed without giving reasons.28 If the cell falls in the shaded area, a stayed sentence should be imposed rather than direct imprisonment.29 Obviously, the offence level and the criminal history score have to be determined before the grid can be employed. This might entail quite an involved process. The Minnesota guidelines are described as presumptive and prescriptive.30 They can be departed from in the presence of substantial and compelling aggravating or mitigating factors.31 Any departure has to be motivated, in writing, by the judge imposing the sentence. However, many circumstances are specifically excluded from consideration. These include factors such as race, sex, the employment status of the offender and social factors such as his education or marital status.32 Many of these factors could influence a particular sentence in South Africa,33 but are excluded from the Minnesota guidelines in order to curb unfair discrimination among offenders.34 Against this background of sentencing grids, it is important briefly to consider the circumstances that gave rise to this revolutionary way of determining sentences. 26 A general definition of a felony is any offence for which imprisonment in excess of 1 year can be imposed, or that has been declared a felony by statute cf John C Klotter & Terry D Edwards Criminal Law 5 ed (1998) 16. Therefore, in Minnesota, only the more serious offences are included in the guidelines. 27 The term criminal history is not commonly used in South African law. It is retained in its American form, as it does not simply reflect the offenders number of previous convictions. 28 Von Hirsch et al op cit note 9 at 178. 29 Minnesota Sentencing Guidelines and Commentary § C, § II. C. 01. The South African equivalent to a stayed sentence is the deferment of sentencing in terms of s 297(1) of the Criminal Procedure Act, 1977. 30 Minnesota Sentencing Guidelines and Commentary § C,§ II.C.01.Terance D Miethe & Charles A Moore Socioeconomic disparities under determinate sentencing systems: A comparison of preguideline and postguideline practices in Minnesota (1985) 23 Criminology 337 at 342. Prescriptive means they were intended to change current sentencing practices. A descriptive approach would describe the current sentencing practices Richard S Frase Sentencing principles in theory and practice in Tonry op cit note 20 at 363 at 393. 31 Minnesota Sentencing Guidelines and Commentary § D, § II. D. 01 (it will be a small number only); cf also Frase op cit note 30 at 392; Miethe & Moore op cit note 30 at 3423. 32 Minnesota Sentencing Guidelines and Commentary § D.1.See also Von Hirsch et al op cit note 9 at 180. 33 Cf M A Rabie et al Punishment: An Introduction to Principles (1994) 5 ed 31014, 327 and 338. Our courts state that all these factors are taken into consideration when imposing sentence. It is, however, indeterminable whether they actually affect the sentences at all. At best the influence would be negligible cf, for a more extensive explanation, Terblanche op cit note 5 at 211 and 2223. 34 Minnesota Sentencing Guidelines and Commentary § II.D.101 (sentencing should be neutral with respect to the offenders sex, race and income levels). SENTENCING GUIDELINES FOR SOUTH AFRICA 863 Historical development of the sentencing-commission idea The history of sentencing reform in the USA since the early 1970s is well documented.35 At the time,an indeterminate sentencing scheme was in place. Sentences were not imposed as a fixed term of imprisonment, but in wide ranges,such as 10 to 25 yearsimprisonment.The prisoner would eventually be released when the parole board decided that he was sufficiently rehabilitated. This could either be after a short or long stay in prison or anything in between. No substantive sentencing law had been developed through reasoned sentence appeal decisions.36 Disparity was an inescapable result.37 Then a federal court judge, Marvin Frankel wrote a small volume that would become highly influential, in which he highlighted what he described as the gross evils and defaults in the imposition of sentences.38 As remedy he proposed the creation eventually of a detailed chart or calculus to be used . . . by the sentencing judge in weighing the many elements that go into the sentence.39 This chart or calculus would be developed by a Commission of Sentencing,which would be a permanent agency responsible for an effective program of research and development on sentencing and related fields, and formulating and enacting the necessary laws and rules.Such a commission was essential because single judges are not in a position to do the research necessary for the creation of a rational sentencing system, and because legislative action tends to be sporadic and impassioned.40 Around the same time compelling evidence showed that the rehabilitative ideal of sentencing did not materialize in practice.41 These and a number of other factors42 contributed to large-scale reforms in sentencing in the USA, including the creation of sentencing commissions with sentencing guidelines, much as envisioned by Judge Frankel.43 Minnesota was followed by other states but,perhaps most significantly,also by the federal criminal justice system. 35 See, e g, Michael Tonry Sentencing Matters (1996) 613; Franklin E Zimring Sentencing Reform in the States: Lessons from the 1970s in Michael Tonry & Franklik E Zimring (eds) Reform and Punishment: Essays on Criminal Sentencing (1983) 101;Frank O Bowman III & Michael Heise Quiet rebellion? Explaining nearly a decade of declining federal drug sentences(2001) 86 Iowa LR 1043 at 10505.See,in general,Francis A Allen The Decline of the Rehabilitative Ideal (1981). 36 Cf Michael Tonry Structuring sentences in Michael Tonry & Norval Morris (eds) Crime and Justice: A Review of Research Vol 10 (1988) 267 at 283. 37 Cf Franklin E Zimring et al Punishment and Democracy:Three Strikes and Youre Out in California (2001) 212. 38 Marvin E Frankel Criminal Sentences: Law without Order (1973) vii. 39 Frankel op cit note 38 at 113. 40 Frankel op cit note 38 at 119. 41 Cf the oft-cited work by Robert Martinson What works? Questions and answers about prison reform (1974) 35 The Public Interest 22. 42 See Zimring op cit note 35 at 10121 for an overview of these reasons (the prisoners rights movement; the Attica prison riot; the resultant writings of scholars, both liberal and conservative; politicians and the law-and-order issue). 43 Amazingly, Frankels proposals are still used as criteria for determining the success of current guidelines cf Kevin R Reitz The status of sentencing gguideline reforms in the United Statesin Michael Tonry (ed) Penal Reform in Overcrowded Times (2001) 31ff; Michael Tonry Sentencing commissions and their guidelines in Michael Tonry (ed) Crime and Justice: A Review of Research vol 17 (1993) 13795. 864 THE SOUTH AFRICAN LAW JOURNAL The Federal Sentencing Guidelines The US Sentencing Commission was established by the Federal Sentencing Reform Act of 1984. The Commission was tasked with drafting guidelines for the sentencing of federal offenders. Its guidelines became law in 1987,44 and have been unpopular from the very beginning: The federal guideline system has been subject to an extraordinarily voluminous amount of judicial and academic criticism,45 much of it predictable in view of the defects inherent in the original conception. Few would regard the system as a suitable model for future reforms.46 The structure of the Federal Sentencing Guidelines The federal sentencing guidelines are contained in the Guidelines Manual.47 It follows the same basic structure as that of Minnesota.It also uses a matrix,with the different crime seriousness levels in the horizontal plane,and the criminal history in the vertical. In contrast to Minnesotas 11 levels of crime- seriousness, 43 are used in the federal grid. In order to find the relevant offence-seriousness level,the sentencing court has to work its way through up to five different stages. The Sentencing Commission developed its own measures of criminal history scores, which can be fairly complicated to determine.48 Thereafter, a further three steps need to be considered, before the sentencing process is complete. A court is only allowed to impose a sentence outside the range contained in the relevant cell on the grid in the rare instances that the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.49 44 18 USC § 3551. 45 See, eg, Tonry op cit note 35 at 7289 (the most controversial and disliked sentencing reform initiative in US history ); Daniel J Freed Federal sentencing in the wake of guidelines: Unacceptable limits on the discretion of sentencers(1992) 101 Yale LJ 1681 at 1685 and the sources referred to in note 10 e g that the guidelines caused dismay and evasion in the courts); Anthony N Doob The United States Sentencing Commission Guidelines:If you dont know where you are going,you may not get therein Chris Clarkson & Rod Morgan (eds) The Politics of Sentencing Reform (1995) 199250 (e g, [n]obody seems to think they have done a good job at 200);G Thomas Eisele The sentencing guidelines system? No sentencing guidelines? Yes(1991) 55(4) Federal Probation 16 at 20 (the guidelines are a dark, sinister,and cynical crime management program that is reminiscent of those systems prevalent in Central and Eastern European countries 150 years ago); Kate Stith and José A Cabranes Fear of Judging: Sentencing Guidelines in Federal Courts (1998) 5 (Judges, prosecutors, defense attorneys, and probation officers find themselves operating in a labyrinthine system of rules devised by a distant and alien administrative agency); Richard L Nygaard Sentencing: As I see it (2000) 230 (A confounding farrago or technical rules, containing a myriad of rules, tables, equations, descriptions, comments, definitions and formulae); various authors in (1995) 78 Judicature 168214. 46 Ashworth op cit note 6 at 234. 47 United States Sentencing Commission Guidelines Manual (Nov 2002) hereafter referred to as USSG. The latest edition became effective on 1 Nov 2002 (available at www.ussc.gov/2002guid/ TABCON02.htm [28 October 2003]), but was supplemented with effect from 30 Apr 2003 (see www.ussc.gov/2002suppb/2002suppb.htm [28 October 2003]). 48 For example, 3 points are awarded for each prior sentence exceeding imprisonment of 1 year plus 1 month (lesser sentences attract fewer points); 2 points are added if the current offence was committed while the offender was serving another sentence; if the offence was committed less than 2 years after the offenders release from prison,having served a sentence of at least 60 days,another 2 points are added USSG § 4A1.1. The total number of points are then used to establish the Criminal History Category. 49 USSG § 5K2. 0. SENTENCING GUIDELINES FOR SOUTH AFRICA 865 The guidelines, or any amendments to them, are prepared by the Sentencing Commission, and submitted to the United States Congress. Amendments become law automatically after 180 days, unless a contrary law is enacted during this time.50 Criticism against the federal guidelines The extraordinary voluminous amount of . . . criticism51 against the federal guidelines essentially amount to the following: 1. The federal Sentencing Commission did not declare a primary rationale for sentencing.52 It decided on an indiscriminate mixture of rationales, in contrast to Minnesota, which opted for just deserts.53 2. The guidelines are complex and unclear.54 They are particularly complex when it comes to the sentencing for multiple offences, unfamiliar offences, or drug-related offences.55 The complexity makes them largely incomprehensible to ordinary citizens and potential offenders.56 3. The guideline outcomes are harsh.57 This has been seen as a disregard for the Sentencing Reform Acts explicit goal that sentences should be sufficient but not greater than necessary to comply with the purposes of sentencing.58 The harshness is most notable in the case of dealing59 in various drugs, where dealing in crack cocaine attracts sentences ten times that of dealing in powder cocaine.60 The extent to which guidelines are structured towards severity is also evident from the fact that almost all the additional factors that should be taken into account are aggravating factors, whilst those that would normally tend to mitigate punishment are mostly off-limits.61 50 28 USC § 994(p). See also Dean J Champion (ed) The US Sentencing Guidelines (1989) 242. 51 See the quotation at note 46 above. 52 Cf Ashworth op cit note 6 at 233. 53 Frase op cit note 30 at 388.As to the importance of making a choice of sentencing aims and policy,see Andrew von Hirsch Guidance by numbers or words? in Martin Wasik & Ken Pease (eds) Sentencing Reform: Guidance or Guidelines? (1987) 46 at 4951. In South Africa the draft legislation also declares just deserts (retribution) as the primary aim see the text at note 9 above. 54 Editorial Time to re-examine the US sentencing guidelines and mandatory penalties (2000) 83 Judicature 176 (a bewildering array of arithmetical adjustments, guidelines,and policy statements ...).One of the commissioners of the original commission accepted that a comprehensive system that will reduce disparity appears to require undesirable complexity,yet found the guidelines overwhelminglycomplex and at the same time not really reducing discretion Paul H Robinson Dissent from the United States sentencing commissions proposed guidelines(1986) 77 Journal of Criminal Law and Criminology 1112 at 11212.See also Albert W Alschuler The selling of the sentencing guidelines in Champion op cit note 50 at 61. 55 The USSG contains extensive provisions on drug offences, totalling some 40 pages in USSG § 2D1. 1 to § 2D3. 2. 56 Nygaard op cit note 45 at 230. 57 The harshness and rigidity are two features of the guidelines most disliked by judges Tonry op cit note 35 at 13. 58 Editorial op cit note 54 at 176. See also Sara Manaugh Judges and Sentencing (2002) 102. 59 In South African criminal-law terms. 60 In terms of USSG § 2D1. 1(c) the base offence level for 150 kg or more of cocaine is the same as for 1,5 kg or more of Cocaine base (i e crack cocaine), namely level 38. Even for a first offender that level amounts to a range of 235 to 293 months (i e some 2024 years) imprisonment. See also Bowman & Heise op cit note 35 at 1131 (sentences for drug offences are very long in comparison to other crimes, and to those considered appropriate pre-guidelines); Peter H Rossi et al Just punishments: Guidelines sentences and normative consensus (1997) 13 Journal of Quantitative Criminology 267 at 287. 61 USSG Part H. 866 THE SOUTH AFRICAN LAW JOURNAL 4. The imbalances in sentences (such as in the case of powder and crack cocaine) shows that the system is not rational. Many other examples exist, or have existed.62 5. The guidelines are too rigid, leading to much injustice. It does not provide for sufficient discretion to prevent such injustices.63 The Sentencing Commission: current status All the criticism has not left the Sentencing Commission unscathed.For some time there were no commissioners, and no work was done.64 In 1999 a new set of commissioners was appointed, with the chairperson promising to do something about the criticism.65 Currently most of the criticism remains. It is unlikely that Congress will allow fundamental changes to be made in the foreseeable future. In fact, through the so-called PROTECT Act (Pub. L. 108-21, which became effective on 30 April 2003) Congress has recently directly amended the Sentencing Guidelines Manual, inter alia creating strict limits on downward departures in sex offence cases. Sentencing guidelines in the states The second state after Minnesota to employ sentencing guidelines,created by a sentencing commission,was Pennsylvania.66 Since then,sentencing commis- sions have, to a certain extent, become the trend in guiding sentencing. At times up to 17 states had sentencing guidelines developed by such commissions;67 25 states had at one time or another created sentencing commissions.68 More such systems are currently in the process of development.69 The fact that there are sentencing guidelines in several states does not mean that these systems are all basically the same. On the contrary, the guidelines in the different states often, have very different characteristics.70 Compliance 62 Cf for some of these examples, Robinson op cit note 54 at 111225. 63 Manaugh op cit note 58 at 102. 64 Cf Editorial op cit note 54 at 176. After Richard P Conaboy resigned as chairman on 31 Oct 1998, almost a year before his term expired, the Commission was without commissioners for more than a year Anon Briefs (2000) 83 Judicature at 210. 65 Cf Diana E Murphy Inside the United States sentencing commission: Federal sentencing policy in 2001 and beyond (2002) 87 Iowa LR 35999. 66 In 1982. Cf J Kramer The Evolution of Pennsylvanias sentencing guidelines in Michael Tonry & Kathleen Hatlestad (eds) Sentencing Reform in Overcrowded Times (1997) 57. 67 Richard S Frase Sentencing Guidelines are alive and well in the United States in Tonry & Hatlestad op cit note 66 at 12. 68 Tonry op cit note 35 at 10. 69 Reitz op cit note 43 at 34 and 39;Manaugh op cit note 58 at 96.The establishment of an agencyvery similar to a sentencing commission for every state has been recommended by the American Bar Association see Criminal Justice Standards for Sentencing Alternatives and Procedures 3 ed (1994). There has been considerable incentives from Congress for states to establish guidelines Tonry op cit note 35 at 6 and pers com [9 Jan 2003]. 70 Leonard Orland & Kevin R Reitz Epilogue: A gathering of state sentencing commissions (1993) 64 Univ of Colorado LR 83745; Richard S Frase Sentencing Guidelines in Minnesota and Other American States: A Progress Report in Clarkson & Morgan op cit note 45 at 1723. SENTENCING GUIDELINES FOR SOUTH AFRICA 867 is purely voluntary in some states.71 Not all of them consist of a matrix,72 while some use different matrices for different kinds of offences.73 Not all the systems are equally effective, and in some states the guidelines that were developed have been abolished.74 Many of the states guidelines systems are quite hard to research from a distance, since little has been written in legal and criminological literature.75 Minnesota is one exception.Its guidelines have been subjected to a substantial number of assessments, in which it was invariably found that they had achieved most of their set purposes.76 It is clear that Minnesotas guidelines have altered the way in which sentences are imposed. They have reduced disparity and have done so without over-burdening the correctional system.77 The states Supreme Court has developed a jurisprudence of permissible and impermissible departures from the guidelines.Some criticism remains,such as that the guidelines are limited to felonies,and that there are no guidelines with respect to offences not leading to imprisonment.78 However, it is a fact that the Minnesota Sentencing Commission and its guidelines are held in high regard by most commentators.79 It remains a model to be taken seriously by anybody and any jurisdiction considering sentencing grids as a possible sentencing model.80 Defects of sentencing guidelines in general The gridlike sentencing guidelines are,conceptually,not above criticism. The first point is that they tend to stress only the two factors common to most of them, namely the seriousness of the offence and the offenders criminal record, whereas sentences might reasonably be affected by other factors as well.81 Furthermore, many commentators simply do not like the appearance of a sentencing matrix and argue that it is a too mechanical way of imposing 71 Eg Delaware, Utah, Wisconsin Frase op cit note 70 at 173. Around 1983 there were guidelines acitivities in 35 states, but evaluations on voluntary guidelines concluded that they had little or no effect on sentencing decisions Tonry op cit note 36 at 27982; Tonry & Hatlested op cit note 66 at 19. See also Miethe & Moore op cit note 30 at 360. 72 Eg Virginia Lee op cit note 23 at 412. 73 Eg Kansas uses a different matrix for drug offences than for others, Utah has a separate matric for sex offences and Michigan uses several matrices Lee op cit note 23 at 3541. 74 Eg Florida Reitz op cit note 43 at 33. 75 Cf Tonry op cit note 36 at 272 (referring to the sparseness of evaluating literature).Some information on Ohio, Pennsylvania and North Carolina can be found in Tonry & Hatlestad op cit note 66 at 69ff, and some on Delaware, Utah and Kansas in Tonry & Hatlestad op cit note 66 at 88ff. 76 The Minnesota Sentencing Commission did much of the evaluation itself cf Kay A Knapp Implementation of the Minnesota guidelines: Can the innovative spirit be preserved?in Von Hirsch et al op cit note 9 at 127; Kay A Knapp Impact of the Minnesota sentencing guidelines on sentencing practices (1982) 5 Hamline LR 23770.But these have been corroborated by independent evaluation as well Tonry & Coffee op cit note 9 at 151; Miethe & Moore op cit note 30 at 33763; Frase op cit note 70 at 196. 77 Cf Lee op cit note 23 at 17. 78 Tonry op cit note 36 at 310. 79 Cf Ashworth op cit note 6 at 232; Zimring et al op cit note 37 at 213; Miethe & Moore op cit note 30 at 344. 80 Frase op cit note 70 at 198. 81 Cf Tonry op cit note 35 at 11 (including ethically relevent factorssuch as the effect of the sentence on the accused, the accuseds mental health or drug dependence, a severely deprived background, or victimization by sexual abuse);Stith & Cabranes op cit note 45 at 5 (individual characteristics of offenders are generally ignored). 868 THE SOUTH AFRICAN LAW JOURNAL sentence.82 Sentencing matrixs are also prone to abuse if extreme care is not taken in putting them together. This happened in Minnesota, where prosecu- tors started obtaining multiple-count convictions, since that automatically produced high criminal-history ratings.83 Fortunately, if the proper evaluation mechanisms are in place such practices can be picked up and rectified. Another claim that has attracted a lot of attention, is that the guidelines have, through plea bargaining, simply shifted the sentencing discretion from the court to the prosecutor.84 Whether this is a major problem is open to argument. It is an almost inevitable outcome when the courts sentence is known in advance with substantial certainty. Nevertheless, any sentencing commission should be aware of this problem and should attempt to minimise its influence, while also being aware that effective measures to counter it has not yet been devised. Other experiences with matrices For the sake of completeness mention should be made of the matrix that was enacted in Western Australia towards the end of 2000.85 As a result of a new government coming into power in February 2001 the scheme was, however, never proclaimed.86 ENGLISH LAW: A SENTENCING GUIDELINES COUNCIL Introduction Whereas the pace of sentencing reform in the United States has slackened considerably,it is continuing unabated in England and Wales.The most recent development involve the proposed creation of a Sentencing Guidelines Council, tasked with the framing of sentencing guidelines. This might appear to involve a step as radical as the grids from across the Atlantic.Before jumping to this conclusion, however,it is necessary briefly to chart the development of this council in English law. 82 Cf Tonry op cit note 35 at 20 (grids affect the way people think . . . about sentencing . . . [They contain] vast amounts of information) and 98 (referring to the sentencing machine problem). 83 See Knapp op cit note 76 at 129. 84 See, eg, Heumann op cit note 23 at 63041 (the sentencing guidelines have moved the discretion to the prosecutor, to the backroom); Clarkson & Morgan op cit note 45 at 10. For a less critical view, see Ellen Hochstedler Steury Prosecutorial and Judicial Discretion in Champion op cit note 50 at 93110. 85 For a general discussion of this legislation, see Neil Morgan Accountability, transparency and justice: Do we need a sentencing matrix? (1999) 28 Univ of Western Australia LR 259. 86 Neil Morgan Mandatory sentencing, sentencing grids and guideline judgments in Australia paper delivered at the Sentencing and Society Second International Conference (2729 June 2002), Glasgow. The complex nature of this legislation,the fact that it was never introduced and therefore not evaluated,and that it contains further aspects foreign to South African law would make a further discussion of this project superfluous. SENTENCING GUIDELINES FOR SOUTH AFRICA 869 Guideline judgments in English law Sentencing disparity has long been considered a problem in English law.Partly due to this concern Lawton LJ pioneered guideline judgments in the 1970s.87 This practice has been followed by Lord Chief Justices ever since.88 A guideline judgment is a judgment issued by the Court of Appeal when it suggests guidelines with respect to a particular category of offence.89 A typical guideline judgment would begin by stating the current pattern of offending and sentencing.90 It would consider the basic framework applicable to sentencing in general and regarding the offence in particular. It would then provide a fairly exhaustive list of aggravating and mitigating factors associated with the offence. And then, in many instances, it would actually provide starting points for sentences for certain sub-categories of the particular offence.91 Many judgments do not go as far as actually suggesting a starting point for sentences, especially when the variations of that crime are so great that it would be inappropriate to do so.92 In such cases the court might for example merely state, as was done in R v Brewster,93 that the degree of seriousness attaching to burglary is not such that a non-custodial sentence could never be justified or,as was done in R v Boswell,94 that punishment for causing death by reckless driving95 should in many cases involve immediate loss of liberty. The Court of Appeal has been careful to stress that the guideline judgments do not deprive the sentencer of his or her sentence discretion: But the sentencer retains his discretion within the guidelines,or even to depart from them if the particular circumstances of the case justify departure.96 87 In cases such as R v Willis (1974) 60 Cr App R 146 (for buggery);R v Taylor,Roberts and Simons (1977) 64 Cr App R 182 (for unlawful sexual intercourse). 88 Ashworth op cit note 20 at 30; Martin Wasik Emmins on Sentencing 4 ed (2001) 373. Examples include R v Barrick (1985) 7 Cr App R (S) 142 (breach of trust theft); R v Boswell (1984) 6 Cr App R (S) 257 (causing death by bad driving);R v Billam (1986) 82 Cr App R 347 (rape); A-Gs Reference (No 1 of 1989) (1989) 11 Cr App R (S) 409 (other sexual offences); R v Aramah (1982) 4 Cr App R (S) 407 (drug offences); R v Brewster  1 Cr App R (S) 181 (domestic burglary). 89 Cf R v de Havilland (1983) 5 Cr App R (S) 109. See also Ashworth op cit note 20 at 30 (a judgment containing the general parameters for several variations of a certain type of offence,the main aggravating and mitigating factors, and (often) suggesting an appropriate starting point or range of sentences); J J Spigelman Sentencing guideline judgments (1999) Current Issues in Criminal Justice 5 at 11. The vast majority of Court of Appeal judgments are not guideline judgments, but only concerned with the facts and circumstances of that particular case: It is therefore necessary to read Court of Appeal decisions with care in order to distinguish those which are intended to provide general guidelines from those which are no more than examples Nigel Walker & Nicola Radfield Sentencing: Theory, Law and Practice 2 ed (1996) 13. 90 To this end the Home Office provides the necessary statistics cf R v Brewster  1 Cr App R (S) 181 at 184. 91 This has been described as the main function of guideline judgments Wasik op cit note 88 at 373. For example,in R v Boswell (1984) 6 Cr App R (S) 257 at 261,drivers causing death while racing on highways, or driving recklessly after taking alcohol or drugs should expect two yearsimprisonment or more,and being disqualified from driving for a long time. 92 Spigelman op cit note 89 at 11. 93  1 Cr App R (S) 181 at 187. 94  6 Cr App R (S) 257 at 259. 95 At the time a contravention of s 1 of the Road Traffic Act 1972, as substituted by s 50(1) of the Criminal Law Act 1977. 96 R v de Havilland  5 Cr App R (S) 109 at 114. 870 THE SOUTH AFRICAN LAW JOURNAL Thus presiding officers must still tailor their sentences to the facts of the particular case.97 Despite technically being obiter dicta,98 the influence of guideline judgments has been substantial and these guideline judgments are considered as being quite successful in reducing disparity for the offences they deal with. The most prominent of authors on sentencing in England, Professor Andrew Ashworth, comments as follows: Guideline judgments are an innovation of which the senior judiciary can rightly be proud. They show how guidance can be fashioned, in a judge-friendly way, based on experience, and shaping discretion without constraining it too tightly. It might also be claimed that guideline judgments are capable of changing judicial sentencing practices ...although where there is a strong judicial culture the guideline judgment may be less than fully successful in altering sentencing practice.99 The deficiencies of guideline judgments 1. Guideline judgments are delivered sporadically and not as part of an overall strategy to reduce disparities of all sentences. They may succeed in improving consistency with respect to the specific category of offence to which they pertain, but they do not consider its relationship with other offence categories.100 2. Although there are exceptions, most judges are not particularly expert regarding the intricasies of sentencing theory and policy.As Von Hirsch explains: Common-sense beliefs about deterrence or treatment or dangerousness are not necessarily correct; questions about fair distribution of penalties do not necessarily resolve themselves easily.101 3. Guideline judgments invariably only cover the really serious cases.102 Offences that are typically heard at magistrates courts level are hardly ever covered in guideline judgments at all.103 This does not leave magistrates completely in the dark. Sentencing guidelines have been in use in the magistrates courts for some time since they have originally been developed for traffic offences. The latest version of the Magistrates Court Sentencing Guidelines, in which important advice and guidance on sentencing matters is available to magistrates,104 was published in 2000.105 97 Ashworth op cit note 20 at 31. 98 Ashworth op cit note 6 at 229. 99 Andrew Ashworth The Decline of English Sentencing and Other Stories in Michael Tonry & Richard S Frase (eds) Sentencing and Sanctions in Western Countries (2001) 62 at 74. 100 Ashworth op cit note 6 at 2289. 101 Von Hirsch op cit note 53 at 58. 102 Only cases reaching the Court of Appeal. Appeals from magistrates courts are mostly heard in Crown Courts, and are mostly not reported. 103 Wasik op cit note 88 at 299. 104 Wasik op cit note 88 at 300. See also Ashworth op cit note 99 at 745 (the guidelines contain the maximum penalty, relevant statutory and other factors, refer to some common factors affecting seriousness, and propose a starting point for the sentence; they are as significant as the guideline judgments). 105 See www.magistrates-association.gov.uk/publications/general_publication.htm [10 Dec 2002]. New sentencing guidelines (the 6th ed) will be implemented on 1 January 2004. SENTENCING GUIDELINES FOR SOUTH AFRICA 871 In an attempt to counter some of these deficiencies, the Sentencing Advisory Panel was introduced. The Sentencing Advisory Panel The Sentencing Advisory Panel began its work on 1 July 1999, under the Crime and Disorder Act, 1998. This legislation places a statutory duty on the Court of Appeal to consider producing new sentencing guidelines and to revise existing ones whenever there is an appeal against a sentence.106 If the Court decides to issue guidelines it has to advise the Panel107 of this intention.108 The Panel then has to consult with certain predetermined organizations,109 and eventually formulate its own views which are then communicated to the Court.110 Thus, the Panel is intended to operate as a source of guidance, ideally assisting the Court by researching the subject more thoroughly and bringing a wider range of views to it than the Court is able to do but . . . the powers of the Court of Appeal in respect of guideline judgments are little altered.111 The Panel is also entitled to propose sentencing guidelines of its own accord.112 The Panels views constitute one of the factors that the Court has to consider before framing the guidelines. Others include current sentencing practices, the cost and effectiveness of the various sentences, as well as less tangible matters such as the need for consistency and the need to promote public confidence in the system.113 The Panels advises are basically set in the same narrative format as that of the guideline judgments.It is typically accompanied by an in-depth discussion of all matters related to sentencing of that particular offence.114 The Court of Appeal has adopted the Panels advice in a number of cases.115 In one of the latest instance this involved a review of the guidelines on rape.116 Further developments Major concern about crime in England keeps the effectiveness of sentencing in the newspapers and,as a result,it is a political topic.The latest governmental 106 Section 80(1) and (2). 107 The Panel currently consists of a number of academic experts on sentencing, members of the judiciary, and representatives from related professions such as magistrates, the probation service and the constabulary. 108 Section 81(2). 109 For a list, see Sentencing Advisory Panel Annual Report (1 April 2001 31 March 2002) (2002) at 25. 110 Section 81(4). 111 Ashworth op cit note 20 at 48. 112 Section 81(3). 113 Section 80(3). 114 For the latest advice see www.sentencing-advisory-panel.gov.uk [29 October 2003]. 115 Cf R v Kelly and Donelly  Crim LR 411;  2 Cr App R (S) 73 (racially aggravated offences);R v Mashaollahi  1 Cr App R (S) 330 (dealing in opium);R v Webbe  1 Cr App R (S) 82 (handling in stolen goods) and R v Nelson  1 Cr App R (S) 565 (extended sentences). 116 R v Millberry  1 WLR 546 (CA);  2 All ER 939;  1 Cr App R 25. 872 THE SOUTH AFRICAN LAW JOURNAL report on sentencing, the so-called Halliday report,117 was published towards the end of 2001. One of its specific proposals was the institution of a kind of a sentencing commission. These proposals have been given effect to in the latest Criminal Justice Bill.118 Section 149(1) declares that there will be a Sentencing Guidelines Council, chaired by the Lord Chief Justice. The composition of the Council is to be determined by the Lord Chancellor and the Secretary of State.119 Members will be drawn from the judiciary120 and from others with experience in the criminal justice system.121 The Sentencing Advisory Panel will remain in place.122 Essentially, the proposed relationship between the Panel and the Council has been drafted in the same language as the current relationship between the Panel and the Court of Appeal.123 Once guidelines have been set, courts will have to have regard to any applicable guideline.124 In its White Paper on the topic125 the government explained that the Council will be responsible for setting guidelines for the full range of criminal offences. How this will be done is not explained in the draft legislation126 and will clearly have to be decided by the Council itself. Also, the judge or magistrate will continue to make his or her own decision as to sentence,but will be required to operate within the Councils guidelines or explain why they do not apply to the case in question.127 On the face of these materials it appears that the main change from the current situation is going to be that the Sentencing Guidelines Council will be tasked with setting up guidelines for all offences, and that the Secretary of State will be given a specific new role in this respect. Time will tell whether these changes will have a noticeable effect on sentencing practices. However, what is clear is that the Sentencing Guidelines Council will to build on English traditions, and will be a body quite distinct from the American sentencing commissions. 117 Home Office The Halliday Report (Making Punishments Work: Review of the Sentencing Framework for England and Wales) (2001) available at http://www.homeoffice.gov.uk/docs/halliday.html [29 October 2003]. See,for some critical discussion, Estella Baker & C M V Clarkson Making punishments work:An evaluation of the Halliday Report on sentencing in England and Wales  Criminal LR 81. 118 As amended in Committee on 15th October 2003 available at http://www.publications.parliament.uk/pa/ ld200203/ldbills/111/2003111.htm [29 October 2003].It is likely to become the Criminal Justice Act 2003. 119 Section 149(1)(b) and (c). 120 Including a District Judge (Magistrates Courts) and lay justices s 149(2), (3) and (9). 121 The details are set out in s 149(4)(6). 122 Section 151. In terms of s 151(1) it is constituted by the Lord Chancellor after consultation with the Secretary of State and the Lord Chief Justice. 123 In s 152(5) and s 153. As to the content, see the text at note 113 above. 124 Section 154(1)(a). 125 Home Office Justice for All (2002) 8990. 126 Apart from requiring the Council to frame sentencing guidelines when such guidelines are proposed by the Sentencing Advisary Panel or the Secretary of State s 152(3). 127 Op cit note 125 at 90. SENTENCING GUIDELINES FOR SOUTH AFRICA 873 GUIDELINE JUDGMENTS IN AUSTRALIA AND SOUTH AFRICA Recent developments in Australia The guideline judgments of the English Court of Appeal have,at times,spilled over into other commonwealth jurisdictions, such as Australia, New Zealand, Hong Kong and Canada.128 In Australia guideline judgments have mainly been handed down in New South Wales,129 under the initiative of Spigelman CJ.130 The first of his judgments specifically referred to as a guideline judgment was R v Jurisic.131 It was generally well received and was subsequently bolstered by legislation allowing the Attorney-General (amongst others) to request a guideline judgment from the Court of Criminal Appeal.132 The guideline judgments prompted Zdenkowski to make this forecast: Judicial sentencing guidelines represent a pre-emptive strike against sentencing grids/ matrices and such guidelines have a rosy future because they are an incremental development and have strong judicial and professional support.133 Of course he was not to know that the Australian High Court would cast a cloud over guideline judgments in Wong v The Queen,Leung v The Queen.134 It found the guidelines in one of the guideline judgments, R v Wong,135 to be invalid, and incompatible with federal legislation. However, due to different considerations motivating the judgments of the nine justices, this judgment has been described as unsatisfactory because of the difficulty of extracting clear guidance from it.136 What does appear certain is that typical guideline judgments have little future in the context of federal laws.137 128 See Wong v The Queen, Leung v The Queen  HCA 64 para 9. 129 For an overview of the rise and fall of interest in guideline judgments in other parts of Australia, see Kate Warner The Role of Guideline Judgments in the Law and Order Debate in Australiapaper delivered at Sentencing and Society: Second International Conference (2729 June 2002) Glasgow, Scotland 1015. For example, in Western Australia legislation was introduced in 1995 to authorize the referral of cases to the Court of Criminal Appeal specifically to formulate sentencing guidelines s 143 of the Sentencing Act 1995 (WA). However, every time the court was requested to issue guidelines it declined George Zdenkowski Sentencing Trends: Past, Present and Prospective in Duncan Chappell & Paul Wilson (eds) Crime and Criminal Justice System in Australia: 2000 and Beyond (2000) 161 at 176. Yet, according to Neil Morgan and Belinda Murray Whats in a name? Guideline judgments in Australia (1999) 23 Criminal Law Journal 90 at 96106 this court actually went further in structuring sentencing discretion than the New South Wales court did,but it has so far refused to elevate its judgments into the more formal guideline judgments. 130 It was a specific aim of his guideline judgments to reinforce public confidence in the sentencing process,to increase awareness of appellate guidance and to address inconsistency in sentencing Warner op cit note 129 at 3. The Chief Justice played an unusually active role in promoting these judgments publicly, including writing a newspaper article (Daily Telegraph, 13 October 1998) Zdenkowski op cit note 129 at 177. See also J J Spigelman Sentencing guideline judgments (1999) 73 Australian LJ 876 and Spigelman op cit note 89 at 516. 131 (1998) 45 NSWLR 209 (1998) 101 A Crim R 259). See Morgan & Murray op cit note 129 at 916 for a general discussion. Other guideline judgments include R v Henry (1999) 46 NSWLR 346; Re Attorney Generals Application [No 1] (1999) 48 NSWLR 327; R v Wong (1999) 48 NSWLR 340 and R v Thomson (2000) 49 NSWLR 383. 132 Criminal Procedure Act 1986, as amended by the Criminal Procedure (Sentencing Guidelines) Act 1998 and the Crimes (Sentencing Procedure) Act 1999. 133 Op cit note 129 at 180. See also Morgan op cit note 86 at 27. 134  HCA 64. 135 (1999) 48 NSWLR 340. 136 Warner op cit note 129 at 6. See also Morgan op cit note 86 at 27. 137 See Kate Warner Case and Comment (2002) 26 Criminal LJ 59 at 60. 874 THE SOUTH AFRICAN LAW JOURNAL However, this is not the end of guideline judgments in Australia. In R v Place138 the South Australian Supreme Court had little difficulty in distinguishing its setting of standards with respect to drug offences and armed robbery from guideline judgments, finding that the court may identify a range of penalties for the ordinary case.139 Similarly, in R v Whyte,140 the New South Wales Court of Criminal Appeal found that Wong did not require it to overrule guideline judgments such as Jurisic. Furthermore, numerical guidelines have a role to play in achieving equality of justice where there is tension between the principle of individualized justice and the principle of consistency.141 South African experience with guideline judgments It might well be argued that South African law has no experience with guideline judgments.Many years ago it was stated in R v Mapumulo142 that the infliction of punishment is pre-eminently a matter for the discretion of the trial Court.143 This has often been interpreted as indicating a leave-the- court-alone approach, except that applicable statutory limitations have to be heeded. The approach is embodied in another oft-cited dictum, from R v S,144 that rules that bind the Court are out of place in the field of sentencing. As a result our courts have often held it to be an idle exercise to try to match the facts of one case with that of another.145 Despite a generally strong adherence to these views, some judgments have at times been quite strict about the sentences that can and cannot be imposed by the magistrates courts. One example is driving under the influence of liquor.146 In S v Serabo and five similar cases147 the Eastern Cape High Court recently dealt with a decision by the magistrates of East London to increase sentences for this offence. In restating certain established principles the court began as follows: It is desirable for sentences for these offences to be consistent so that similar sentences are imposed for similar offences. . . .148 The court then considered previous sentencing judgments for driving under the influence, before finding that the concerted effort to impose higher, but still consistent sentences, is permitted, but should not lead to arbitrary sentencing the norm should not be seen as more than a point of departure.149 A norm fine within the range of R4 000 to R6 000 is 138  SASC 101. 139 Paras  and . 140  NSWCCA 343 (20 August 2002). 141 Guideline judgments have also been bolstered by the legislation referred to in note 132 above. 142 1920 AD 56 at 57. 143 This has been followed in a long line of decisions see Terblanche op cit note 5 at 133n89. 144 1958 (3) SA 102 (A) at 104D. 145 Cf S v Fraser 1987 (2) SA 859 (A) at 863CD and the other cases referred to in Terblanche op cit note 5 at 129. 146 The contravention of s 65(1) and (2) of the National Road Traffic Act 93 of 1996. 147 2002 (1) SACR 391 (E). 148 At 394. 149 At 397e. SENTENCING GUIDELINES FOR SOUTH AFRICA 875 considered not to be excessive or unreasonable150 for this offence, while the alternative imprisonment should not be more than about eight months, and in most cases it will be considerably less.151 There is no doubt that Serabo is a guideline judgment. It is true that it has not been passed by the highest criminal appeal court, and is not binding nationally. Such a judgment might not have everybodys approval, but its role in attempting to achieve justice where the principles of individualization and consistency are at odds with one another152 cannot be doubted. SENTENCING GUIDELINES IN THE NETHERLANDS Introduction The Netherlands is one of only a few countries on the European continent where there is concern over sentencing disparity.153 In most of the others there is little discussion of sentencing guidelines or basic reform of the sentencing systems. For example, in Germany sentences have to be within the broad range provided by the Criminal Code for each offence.154 However, within this range there are tariffs understood by all role players in the criminal justice system: Trial courts are guided . . . by traditional standards and conventions that differ locally. The resulting moderate inequality of sentences is regarded with astonishing equanimity by practitioners and theorists.155 The position is different in the Netherlands, however, where the sentencing discretion of the judiciary is very wide;156 much wider,in fact,than in any of the surrounding countries.157 150 At 399a. 151 At 400c. 152 See the text at note 141 above. 153 Cf P C Vegter Herziening van het sanctiestelsel: Verslag van de jaarvergadering van de Nederlandse Juristen-Verening(2002) 77 Nederlands Juristenblad 1288 at 1291;Peter J P Tak Essays on Dutch Criminal Policy (2002) 125; G J M Corstens Het Nederlands strafprocesrecht 2 ed (1995) 666. A special edition of Trema (Tijdschrift voor de rechterlijke macht) was dedicated to a discussion of consistency in sentencing see (1992) Trema 77135, in particular A F M Brenninkmeijer Gelijkheid van strafen (1992) Trema 7784. It was the cause of much discussion. The desire for greater consistency has been expressed for a long time, and many suggestions have been made as to how it could be achieved cf J Silvis in He G van de Bunt et al (eds) Richtlijnen van het openbaar ministerie (1993) 98 at 98100; C Fijnaut Straftoemeting: een vergeten probleem (1989) 19 Delikt en Delinkwent 9257. 154 For example, theft is defined in § 242 of the German Criminal Code (Strafgesetzbuch) and declared punishable with imprisonment of up to 5 years, or a fine. 155 Thomas Weigend Sentencing and punishment in Germany in Tonry & Frase op cit note 99 at 2056 (source references omitted).See also Hans-Jörg Albrecht Sentencing and punishment in Germanyin Tonry op cit note 43 at 145 (the current state of the sentencing process is considered to be satisfactory). The same applies to countries such as France, Spain, Italy and Sweden. 156 Cf, among many possible references, C P M Cleiren & J F Nijboer (eds) Strafvordering: Tekst & Commentaar 3 ed (1999) 868; J de Hullu De strafmotivering in G Knigge (ed) Leerstukken van Strafprocesrecht 5 ed (2001) 229 (de enorme vrijheid of Dutch judges); Peter J Tak Sentencing and punishment in the Netherlands in Tonry & Frase op cit note 155 at 1745. 157 See P J P Tak Opportuniteitsbeginsel en minimumstraf (2002) 32 Delikt en Delinkwent 35666 for a comparison of the sentencing discretion in the Netherlands with other European countries, notably Germany. 876 THE SOUTH AFRICAN LAW JOURNAL Role of the prosecutor A trial in the Dutch criminal justice system is, in terms of its Criminal Procedure Code,158 followed by the courts judgment (vonnis), which includes not only the conviction or acquittal but, in case of a conviction, the sentence as well.159 However, before the judgment, the various parties get the opportunity to address the court. The process is governed by s 311(1) of the Code, which essentially provides as follows: After the questioning of the suspect, and after the evidence by the witnesses and experts has been heard, the prosecutor may address the court; after reading his request, he hands it to the court. The request includes the sentence, if its imposition is requested. . . .160 A further statutory reference to the prosecutors request (vordering) is found in s 359(7) of the Code: If a more severe punishment is imposed than that requested by the prosecutor, or if unconditional incarceration is imposed for a longer term than that requested, the judgment shall give the reasons leading to this decision in particular.161 The vordering is part of Dutch legal tradition. The prosecution performs part of its role as representative of society by exercising this duty to request a specific punishment.162 Despite not being bound by it,163 the judges cannot simply ignore the request but have to explain any substantial departure in the judgment.164 It should be mentioned here that, even though the sentence has to be motivated in the judgment, in practice this motivation has become almost meaningless.165 The Prosecution Service (De Openbaar Ministerie) plays a particularly important role in the Dutch criminal justice system. However, managing the prosecution of crimes remains its primary function, and to that end it issues directives on typical prosecution duties.Since requesting a specific sentence is part of the prosecutors functions, the Openbaar Ministerie started issuing guidelines to the prosecutors regarding the sentences that should be 158 Wetboek van Strafvordering. 159 Section 350. 160 The original reads: Nadat de ondervraging van de verdachte heeft plaatsgehad en de aanwezige getuigen en deskundigen zijn gehoord,kan de officier van justitie het woord voeren;hij legt zijn vordering na voorlezing aan de rechtbank over. De vordering omschrijft de straf en maatregel, indien oplegging daarvan word geëist. . . . 161 The original reads: Indien een zwaardere straf wordt opgelegd dan de officier van justitie heeft gevorderd, dan wel een straf onvoorwaardelijk word opgelegd die vrijheidsbeneming van langere duur medebrengt dan de officier van justitie heeft gevorderd,geeft het vonnis steeds in bijzonder de redenen op die daartoe hebben geleid. The provision is intended to prevent surprize. The prosecutors request represents, in principle, the upper limit of punishment that is to be imposed on behalf of society (cf P Osinga Transactie in strafzaken: Een onderzoek naar de positie van de transactie in het strafrechtelijk systeem (1992) 36). It could have affected public confidence in the judges role as protector of the citizen if more severe punishment than the prosecutor thought appropriate is imposed without explanation (cf Corstens op cit note 153 at 668). 162 Osinga op cit note 161 at 36. 163 H de Doelder in Van de Bunt et al op cit note 153 at 423. 164 Osinga op cit note 161 at 36. 165 Peter J P Tak The Dutch Criminal Justice System (1999) 74:[It] is generally known that this motivation, required by art 359, (5) CCP, is pre-printed on the sentence form or flows easily from the word processor when devising the verdict. . . . See also Cleiren & Nijboer op cit note 156 at 885 (especially due to a lack of time); Corstens op cit note 153 at 666 (explanations such as the imposed sentence is in accordance with the seriousness of the offence and the circumstances under which it has been committed, and the person and personal factors of the accused, as they appeared during the trial has long been accepted by the Hoge Raad, despite objections from the practice and academia). SENTENCING GUIDELINES FOR SOUTH AFRICA 877 requested.166 Initially, these guidelines were not particularly effective in creating consistency, mainly because they allowed too much variation.167 By 1992, however, this had changed. Studies showed that judges were prepared, in the interests of consistency, not to deviate much from the requests.168 In this manner the guidelines of the Openbaar Ministerie gained a major influence over judicial sentencing within a reasonably short time.169 It also created more consistency in sentencing throughout the country. 170 However, it did not stop here. By 1999, following an ambitious project (called the Polaris project), 35 sentencing request guidelines had been developed nationally, covering 125 offences (80 per cent of sentenced cases).171 The guidelines operate in the following manner.172 The offenders basic offence is awarded a predetermined number of points (for example, 60 points in the case of breaking into a home). As the next step consideration is given to reducing or increasing this number by a variety of mitigating or aggravating factors affecting the basic offence. Each of these factors has also been assigned a certain number of points. Thereafter a number of factors affecting sentencing in general is taken into account. There would, for example,be additional points if the victim is a public servant, or if the accused operated in conjunction with others, or points subtracted if the victim provoked the offender. If the offender has one previous conviction, the number of points is increased by half, and doubled if there are more previous convictions.173 The total number of points, called sanction points, determine the sentence. Generally, one sanction point amounts to a fine of A22, or one days imprisonment. However, imprisonment should only be requested if it would amount to more than six months imprisonment (i e, if the sanction points are more than 183). Otherwise a non-incarcerative sentence should be requested, such as a fine or community service. The system also provides for a 166 Van de Bunt et al op cit note 153 at 13.For the historical development,see S Faber OM-richtlijnen: geen nieuw verschijnsel in Van de Bunt et al op cit at 523. See also Osinga op cit note 161 at 79ff; Corstens op cit note 153 at 2178; J F Nijboer De taken van de strafrechter (2000) 45. 167 Tak op cit note 165 at 778;Tak op cit note 156 at 1756.The prosecutor was also allowed to deviate from these directives without giving reasons. 168 Osinga op cit note 161 at 37. J Knap Rechtsgelijkheid bij de straftoemeting (1992) 71 Proces 161 at 162 estimated that sentences were about 25 per cent lower than the request. 169 See also De Doelder op cit note 163 at 43. 170 Tak op cit note 165 at 77. See also G Schurer & R van Loon The Netherlands Adopts Numerical Prosecution Guidelines in Tonry op cit note 155 at 170. 171 Schurer & Van Loon op cit note 170 at 169. The guidelines were developed based on current sentencing practices (can thus be seen as descriptive see note 30 above), with the use of a computer data base: The working group [developing the guidelines] contained two study groups, one to formulate new guidelines and the other to test them. For more than a year, the first group collected all local and national guidelines, which were then analysed, structured, and rewritten. The results were submitted to the testing group, which checked the revised guidelines for content, internal consistency, and compliance with legal standards Schurer & Van Loon op cit 1701. 172 This discussion is mainly based on Schurer & Van Loon op cit note 170 at 16974.See also Tak op cit note 156 at 1767; Tak op cit note 165 at 23. An interactive information system called BOS (Beslissings- Ondersteuningssysteem) supports application of the guidelines in any given case J de Hullu De Plaats van Databanken over de Straftoemeting in het Strafrechtelijk Sanctiestelsel (2002) Trema Straftoemetings- bulletin 1 11 at 16. Cf, for some of the latest and amended directives, M J A Duker and P M Schuyt Straftoemeting (2002) 32 Delikt en Delinkwent 633 at 6389. All the guidelines can to be found at www.openbaarministerie.nl/beleidsregels/dbase/polarfrm.htm [29 October 2003]. 173 Cf www.openbaarministerie.nl/beleidsregels/dbase/polarfrm.htm [29 October 2003]. 878 THE SOUTH AFRICAN LAW JOURNAL conversion system when the number of points gets too high, especially in the case of multiple offences.174 If a factor that the prosecutor considers important in a specific case is not dealt with by the guidelines, it might be taken into account if the prosecutor gives satisfactory reasons. It is too early for a proper assessment of the directives, but so far most comments have been positive,stressing that the system is simple to operate.175 Actions taken by the judiciary With all the activity by the prosecution, there has been considerable pressure on the judiciary also to do something to improve sentence consistency. Sentencing is, after all, a judicial function.176 Part of the pressure came from the creation of a single economic market and efforts to harmonise the laws of European countries.177 In the sphere of consistency in sentencing this led the Council of Europe to draw up Recommendation R (92) 17 in 1996, which referred specifically to sentencing orientation points and starting points.178 Developments in the Netherlands finally came to a head thus, Schoep explains:179 The National Conference of Presidents of the Criminal Chambers of the Courts of Appeal (NCPCCA)180 took up the responsibility and stated that they, the judiciary, should make efforts to promote consistency in sentencing. [In] 1998 a special commission on sentencing issues started formulating and issuing orientation-points for sentencing.181 An important initial decision of the special commission (landelijke commissie straftoemeting) was to divide the criminal cases into three groups:182 (1) The first group consists of those offences which the prosecutor may divert.183 The commission found that the judiciary had little need for 174 Between 181 and 540 points,they are discounted by 50 per cent;above 540 points by 75 per cent. 175 Not everybody is equally impressed. J M Reijntjes Het openbaar ministerie: naar een nieuw evenwicht (2002) 32 Delikt en Delinkwent 21 at 35 complains that some directives are niksseggend, and questions whether the necessary planning and control is in place, so that directives from which the courts deviate substantially can be identified and scrapped. 176 L Frijda Eventuele Straatburgse aanbevelingen over straftoemeting (1992) 15 Trema 94 at 101. 177 Nijboer op cit note 166 at 69. 178 Frijda op cit note 176 at 947.Although one of the members of the committee of sentencing experts is of the opinion that this recommendation has had little influence on sentencing in member states (cf Andrew Ashworth European sentencing traditions: Accepting divergence or aiming for convergence? in Cyrus Tata & Neil Hutton (eds) Sentencing and Society: International Perspectives (2002) 21936 at 223), this is almost certainly not true of the Netherlands (cf J A W Lensing Boekbesprekingen (2002) Trema Straftoemetingsbulletin 3 82 at 84 a review of the aforementioned work; P A M Hendriks Op weg naar consistente straftoemeting: een reisverslag (2002) Trema Straftoemetingsbulletin 2 57 at 58 the NCPCCA (see note 180 below) was guided in its desire for consistency by Recommendation R (92) 17); R C P Haentjens Over het motiveren van straffen (2002) Trema Straftoemetingsbulletin 3 65 at 68. 179 G K Schoep Judicial co-operation in sentencing shifting perspectives in the sentencing decision (2002) paper presented at the Second International Conference on Sentencing and Society, Glasgow, 2729 June 2002. 180 The landelijke overleg van de voorzitters van der strafsectoren van hoven en rechtbanken (LOVS). 181 For more information, see Haentjens op cit note 178 at 6571. 182 This discussion is mainly based on Hendriks op cit note 178 at 58. 183 Through what is called transactie. Transactie is a form of pre-trial settlement, in terms of which the suspect undertakes to comply with the conditions as agreed upon with the prosecutor, in exchange for not being prosecuted Corstens op cit note 153 at 754. The most common condition is the payment of an amount of money, very much like a fine. Other conditions are also possible, including payment of compensation to the victim Tak op cit note 156 at 1567. Whether or not the suspect is actually guilty, is immaterial. Because there is no trial, there is no conviction and no criminal record. For a detailed discussion SENTENCING GUIDELINES FOR SOUTH AFRICA 879 its own guidelines regarding this group of offences. The act (daad- component) is the main determinant of the sentence, and does not vary much from case to case. The influence of personal and personality circumstances is limited throughout. The sentence request by the prosecutor forms an important, and sufficient, orientation point. (2) The second group of cases consists of those offences for which four years imprisonment or more are imposed. Since little information was available on these convictions,it was decided to set up a database of these sentences before further guidelines are prepared. (3) The third group of cases consists of those offences falling inbetween the first two.This comprises a large section of the cases dealt with on a daily basis in the courts. It was decided to develop orientation points, or starting points (oriëntatiepunten), for these offences. Such oriëntatie- punten now exist for a substantial number of drug-related, violent, drunk-driving and property offences and it is the intention to issue more oriëntatiepunten.184 Much like the guidelines for the prosecutors the orientation points have been based on current sentencing practices.185 The database for the second group of offences has been in operation since 1 May 2002.186 It has been made available to every member of the judiciary.187 Through the database judges are now able to determine how their colleagues deal with comparable cases. In order to get a better perception of how judges reach their decisions, for inclusion in the database they are required to give a more complete judgment than has so far been done.188 There has been some criticism of the database,some of it inspired by factors of mostly local importance,189 but others by more basic considerations.190 Most commentators are, however, cautiously optimistic.191 The database is still in its infancy, and only time will tell how well it will work. of transactie see Osinga op cit note 161; see also Corstens op cit note 153 at 753. For a South African perspective, see generally SA Law Commission Project 73: Sixth Interim Report on Simplification of Criminal Procedure (Out of Court Settlements in Criminal Cases) (2002). 184 Schoep op cit note 179. See also Hendriks op cit note 178 at 59. 185 Hendriks op cit note 178 at 59; A F M Brenninkmeijer & G K Schoep Gelijkheid van Straffen: Een rechterlijk perspectief (2002) Trema Straftoemetingsbulletin 1 19 at 24 186 Haentjens op cit note 178 at 65. 187 Ibid. Access is via a system called Porta Iuris Editorial Databank Straftoemeting (2002) Trema Straftoemetingsbulletin 1 1.An important practical aspect of the development of the database has been the existence of a previously developed sentencing information system (see Haentjens op cit note 178 at 657).The database contains a special search function enabling the presiding officer to search for comparable cases M J A Duker and P M Schuyt Straftoemeting (2002) 32 Delikt en Delinkwent 633 at 639. 188 Haentjens op cit note 178 at 689. See, in connection with the current requirement for the judgment, note 166 above. 189 See,e g,G Knigge Databank en strafmotivering:Catch-22?(2002) Trema Straftoemetingsbulletin 1 510. 190 Cf H K ter Brake De Ideale Strafmotivering (overpeinzingen van een raadsman) (2002) Trema Straftoemetingsbulletin 3 79 at 80. 191 De Hullu op cit note 172 at 18; Brenninkmeijer & Schoep op cit note 185 at 27 (the database is the most important component of the development of a sentencing policy). 880 THE SOUTH AFRICAN LAW JOURNAL Sentencing information databases, or systems, have been in operation in a certain number of jurisdictions.It is,in conclusion,necessary to briefly look at how they function in connection with sentencing consistency SENTENCING INFORMATION SYSTEMS A Sentencing Information System provides information about the range of penalties which have been passed by the court for a particular type of case in the past. The system allows the judge to enter information about the offence and the criminal history of the offender into the computer and the screen displays the range of penalties passed by the court for similar cases.192 The advantage of a sentencing information system is that it provides sentencers with accurate information about the sentencing practices of other sentencers covered by the database. There has been a number of experiments with sentencing information systems worldwide, but most of them ran out of steam. One system that has been running for some time is administered by the Judicial Commission of New South Wales, Australia.193 In addition to the Dutch database, such a system has also recently been developed in Scotland.194 The staying power of these latest initiatives still needs to be proved. Other systems have run into the problems of cost, disinterested judges (who are often not computer literate) and the fact that they tend to be driven by a few individuals, who lose interest in the long run, or move on to other things.195 Would a sentencing information system be of any substantial use in South Africa? The advantages of knowing what ones colleagues are doing and have done are considerable. But the question has to be asked: Why did the Chief Justice of New South Wales, the one jurisdiction where a sentencing information system has been running for quite some time,196 find it necessary to begin delivering guideline judgments? Clearly the system was not sufficiently effective in producing consistency. This highlights the most serious deficiency of sentencing information systems, namely that they describe past sentencing practices, warts and all. There is no system to ensure that only good sentencing judgments are included in the database. SENTENCING GUIDELINES: A CLOSING NOTE The assessment in 2000 by the South African Law Commission regarding the ills of our sentencing system remains valid. If anything, the current minimum 192 Cyrus Tata et al A Sentencing Information System for the High Court of Judiciary of Scotland: Report of the Study of the First Phase of Implementation and Enhancement (2002) 5. 193 Cf New South Wales Law Reform Commission Report 79: Sentencing (1996) 14 (There is now available to all sentencing courts, on a comprehensive basis, information about sentencing patterns through the Judicial Commissions Sentencing Information System . . . [T]he Commission considers that the greater use of this information, which will inevitably come with the expansion of the database, will enhance consistency). See also Tata et al op cit note 192 at 78. 194 Cf Andrew Ashworth Sentencing in Mike Maguire et al (eds) The Oxford Handbook of Criminology (2002) at 1106. 195 Cf, in general, Tata et al op cit note 192. 196 It was initiated in 1988 Tata et al op cit note 192 at 8. SENTENCING GUIDELINES FOR SOUTH AFRICA 881 sentence legislation has worsened the disparities and inconsistencies.197 In addition to the arguments advanced by the Law Commission itself for its finding that a Sentencing Council should be instituted in South Africa, it is useful to consider the following conclusion that Tonry reached from the American experience: The strength of the sentencing commission approach is its combination of the sentencing commission, presumptive sentencing guidelines, and appellate sentence review.198 The importance of these three components is clear from research conducted all over the world, and particularly in the countries highlighted above. South Africa already has the appellate sentence review, in an established appellate system on sentencing.To improve the sentencing system, the other two components need serious consideration. The second component,namely sentencing guidelines,has been dealt with at length in this article. In each of the jurisdictions considered disparity in sentencing, with all its detrimental byproducts, has been the driving force behind the move towards sentencing guidelines, regardless of the form that these guidelines took. Without some point of departure within a rational sentencing system, consistency is impossible to achieve. And, lest it be forgotten in the sphere of sentencing, everyone is equal before the law and has the right to equal protection and benefit of the law.199 With respect to sentencing guidelines it is important, however, when considering the Law Commissions proposals,that one does not get caught up in the mindset that only the American type of guidelines qualify as being sentencing guidelines. In fact, there is much to say for the narrative approach to guidelines of the English system, or even the points system of the Dutch prosecution service, and it is submitted that they would produce a far better fit in better with our legal tradition than the grid-like, more mechanical American systems. The final component is the body providing the sentencing guidelines, which may be called a sentencing commission or a sentencing council or whatever else.Once again the different motivations for the institution of such bodies have been canvassed at some length in this paper. The single most important motivation is that courts are not in a position to establish a complete system, since they deal with one case at a time. In considering this matter, one also needs to consider the various functions of the proposed Sentencing Council. Apart from the setting of guidelines it will also be responsible for determining the value of fine units, making policy recom- mendations on the development of community penalties (or other forms of punishment), doing research (especially with respect to such matters as sentencing trends and crimes figures), training judicial officers and producing 197 Sections 51 and 52 of the Criminal Law Amendment Act 105 of 1997. For comment regarding the increased risk of disparity, see S S Terblanche Aspects of minimum sentence legislation: Judicial comment and the courts jurisdiction (2001) 14 SACJ 1 at 19. 198 Op cit note 36 at 283. 199 Section 9(1) of the Constitution of the Republic of South Africa, Act 108 of 1996. 882 THE SOUTH AFRICAN LAW JOURNAL various publications.200 Currently most of these functions, although essential for the proper operation of a sentencing system, are totally neglected in South Africa. Without the establishment of some institution to effect these functions, they are unlikely ever to be performed. The experience of the jurisdictions dealt with in this contribution proves that, even within sophisticated criminal justice systems, eventually, proper sentencing needs a sentencing guideline commission of some kind to guide the sentence discretion. SYMBOLS The only person I ever met who saw the State was an elderly professor. I have seen it, he assured me solemnly. Did he really? Do we see the State, the Government, the Town, the Church, the Army, the University? Terms for these entities are repeated so often in political as well as mundane discourse that we begin to take them as referents for something tangible. But the whole is not more than the sum of its parts. Human interaction is no more and no less than people interacting with one another,often in very small groups, many of them composed of only two people and lasting a very short time. Those other grand terms are abstract symbols. Human beings do not interact with symbols, nor are they injured by them. They interact with are helped, reared, robbed, raped, killed by other human beings, who relate to them in various patterns of equality,subordination,and superordination.Persistently overlooking ineluctable human agency and blaming the symbol becomes a technique of amnesty for individual perpetrators and a continuing invitation to impunity. W Michael Reisman Law in Brief Encounters (1999) 4. 200 South African Law Commission Report: Sentencing (A New Sentencing Framework) (Project 82) (2000) para 3.2.4ff.
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