Sentencing in Courts - Tanzania

UNIVERSITY OF DAR ES SALAAM SCHOOL OF LAW

DEPARTMENT OF PUBLIC LAW

MR. JABA SHADRACK, Assistant Lecturer in Law

A.    Introduction: Sentencing

  

Etymologically, the word “sentence” or its derivative “sentencing” comes from a Latin word, “sententia” used in Roman & civil law, which simply means “a judicial decision”.

Therefore, the term “sentencing” can be defined as a post-conviction stage in a criminal trial where a judge or a magistrate is required to determine or assess or evaluate a legal sanction(s), and actually impose the same on a person found guilty of an offence. In other words, sentencing can be said to mean a way courts deal with a person after he has pleaded guilty or has been found guilty in a criminal trial/ proceeding. In Tanzania, a criminal trial may either be a summary trials or trials on indictment. In certain cases (especially Murder), trial on indictment is preceded by committal proceedings taking place in the Resident or District Magistrates’ Court. 

Summary:

The Black’s Law Dictionary, 2009

Sentencing is the judicial determination of the penalty for a crime.

The Criminal Procedure Act (Cap. 20)[1]

In Tanzania, after a conviction the trial magistrate or judge gives a judgement followed by a sentence. Where an accused person has pleaded guilty, judgement will usually not be passed and the judge will move immediately to sentence the offender.  

      B. Sources of Sentencing Powers/Law, Principles and Guidance

·         The Constitution of the United Republic of Tanzania (1977)

Articles 4(1)(2) and 107A(1)(2), & 107B vests adjudicative powers (which include sentencing) in Judicial (courts) and Quasi-Judicial (tribunals) bodies. Read also, Article 13(1)-(6), 15(1)(2), 17(1)(2), 25(3) and 67(7) of the Constitution.

·         Legislation

Statutes passed by the parliament establish the framework of Tanzania sentencing law, e.g. the Penal Code, Cap. 16, the Law of the Child Act (2009)[2], the National Defence Act (RE 2002)[3], the Ward Tribunal Act (RE 2002), the Criminal Procedure Act, supra, the Magistrates’ Courts Act (RE 2002), the Appellate Jurisdiction Act (RE 2002), the Tanzania Court of Appeal Rules (2009), the Minimum Sentences Act (1972, Cap. 90)[4], the Interpretation of Laws Act (2002)[5], the Tax Revenue Appeals Act (RE 2006)[6], and etc. Basically, statutes set minimum and maximum sentences for almost every offence.

·         Decisions of Courts of Records (especially, the High Court of Tanzania and the Court of Appeal of Tanzania).

Generally, sentencing decisions are made by sentencers (i.e. magistrates, judge and etc.) guided by the penal law, and decisions of other judges at the same or lower court levels. 

·         The Common Law and Doctrines of Equity

E.g.  The principle of Totality in sentencing (a common law doctrine derived from English and Welsh law).  

Read: Judicature and Application of Laws Act, Cap. 358.

·         Regional and International Legal Instruments and Guidelines[7] 

Refer: Statute of the International Criminal Tribunal for Rwanda (Adopted by Security Council resolution 955 (1994) of 8 November 1994 amended by Security Council resolutions 1165 (1998) of 30 April 1998, 1329 (2000) of 30 November 2000, 1411 (2002) of 17 May 2002 and 1431 (2002) of 14 August 2002); Statute of the International Criminal Tribunal for the Former Yugoslavia, 25 May 1993; and the Rome Statute of the International Criminal Court (signed on 17 July 1998, and came into force on 1^st July 2002).

       C.    Classification of Sentencing

The sentencing process can be classified as follows:-

i)                   According to the length/duration of punishment

·         Determinate vis-à-vis Indeterminate/indefinite/Discretionary Sentencing

Determinate sentencing involves a sentence to confinement for a fixed or minimum period that is specified by statute, while indeterminate/indefinite sentencing involves a term of imprisonment with no definite/specific period of time or release date within a prescribed maximum. Indefinite sentencing is common for juvenile offenders. It is left up to the court, with few or very flexible guidelines. At the time of the imposition of the penalty, it may involve sentence or plea bargain. 

ii)                According to the form of punishment

·         Custodial vis-à-vis Non-custodial Sentencing

Custodial sentencing entails imposing a punishment (and hence the resulting punishment itself) consisting of mandatory custody of the convict, either in prison (incarceration) or in some other closed therapeutic and/or educational institution.  On the other hand, non-custodial sentencing means any decision made by a competent authority to submit a person suspected of, accused of or sentenced for an offence to certain conditions and obligations that do not include imprisonment; such decision can be made at any stage of the administration of criminal justice [Tokyo Rules: Rule 2.1].

iii)              According to how the sentence is served

·         Concurrent vis-à-vis Consecutive/Cumulative sentencing[8]

Concurrent sentencing occurs where a criminal defendant is convicted of two or more crimes, a judge/magistrate sentences the defendant to a certain period of time for each crime, but all sentences will be served at the same time, with the longest period controlling others. Judges may sentence concurrently out of compassion, plea bargaining, or the fact that such several crimes are interrelated. Therefore, when sentences run concurrently, defendants serve all the sentences at the same time. While, consecutive/cumulative sentencing requires a defendant to finish serving the sentence for one offense before they start serving the sentence for any other offense, i.e. one custodial sentence will start after the other one has finished. A consecutive/cumulative sentences will not generally be imposed where matters of fact arise out of the same incident.

iv)              According to the Ranges on Sentence

·         Mandatory/compulsory/Minimum vis-à-vis Maximum sentencing

Mandatory/Minimum sentencing means a statutorily specified penalty that automatically follows a conviction for the offense, often with a minimum mandatory term. It is a type of sentencing in which a judge must give a set sentence (i.e. the lowest amount of punishment a person must receive), e.g. the Minimum Sentences Act, supra. While, under maximum sentencing is the highest amount of punishment a person can receive[9], e.g. Capital punishment for Murder.[10]

         D.    Why Sentencing? Purpose of sentencing
     Any court or tribunal dealing with an offender in respect of his/her offence must have regard to the following purposes of sentencing;

• a)                  Punishment of offenders
• b)                 Reduction of crimes, including its reduction by deterrence
• c)                  Reform and rehabilitation of offenders
• d)                 Protection of the public
• e)        To denounce, condemn, or censure the type of conduct engaged in by the offender
• f)                   Making of reparation by offenders to persons affected by their offences

NB: Modern sentencing policy reflects a combination of several or all of these elements.

     E.     Sentencing Approaches and Principles

Sentencing principles have developed through legislation and court decisions (common law) to form the basis of sentencing decisions. Generally, there are two basic approaches of sentencing, namely;

(i)                 Traditional/Discretionary Approach

The traditional approach to sentencing requires the sentencer to exercise his or her discretion in order to determine an appropriate sentence. The sentence should be neither too lenient nor too severe. The guiding principles are judge-made, which consists of three basic elements in the construction of any sentence, i.e., (1) the seriousness of the crime; (2) the offender’s personal circumstances; and (3) the wider interests of society.

(ii)              Contemporary/Minimum sentences Approach

Legislation are made to introduce or prescribing minimum sentences for a wide range of the more serious crimes, e.g. the Minimum Sentences Act, supra, Tanzania. In other jurisdictions, especially the UK and Canada, have special guidelines or codes on sentencing.

Nonetheless, whether the sentencer is bound to follow traditional or contemporary approach, there are several key principles that he/she has to adhere to at sentencing, as follows:-

i)                   Principle of Proportionality

This principle requires a punishment to fit the crime. It operates to restrain excessive, arbitrary and capricious punishment by requiring that punishment must not exceed the gravity of the offence, even where it seems certain that the offender will immediately re-offend.

Theories of deterrence and retribution share the idea that punishments should be proportionate to the gravity of the crime, a principle of practical importance. If all punishments were the same, there would be no incentive to commit the lesser rather than the greater offence. The offender might as well use violence against the victim of a theft if the penalty for armed robbery were no more. Therefore, the overall punishment must be proportionate to the gravity of the offending behaviour.[11] The proportionality principle can be divided into two major groups, i.e.

(a)   Principle of Totality

It comes into play where there is a sentence for multiple offences, especially in consecutive/cumulative sentencing.[12] The principle requires the court to craft an inclusive sentence of all offences that is not excessive. If the total sentence is excessive the court must adjust the sentence so that the total sentence is proper. The totality principle was intended to avoid sentences that cumulatively are out of proportion to the gravity of the offences. Dr. David A. Thomas[13] says that;

“When cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.”

(b)  Principle of Parsimony/Restraint in Sentencing

The parsimony principle operates to prevent the imposition of a sentence that is more severe than that necessary to achieve the purpose(s) of the sentence. Adams J in DB v Regina; DNN v Regina [2007] NSWCCA 27 defined the parsimony principle to mean an imposition of the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing or the adoption of a sentence at the bottom of the range.[14] Under this principle, a sentence must be no more severe than is necessary to meet the purposes of sentencing, e.g., protection of the public. This is a rule against torture.

 Napier C.J. in Webb v O'Sullivan (1952) SASR 65 at 66 says;

“The courts should endeavour to make the punishment fit the crime and the circumstances of the offender, as nearly as may be.  Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.”

Basically, there are two school of thought with regard to the principle of parsimony. One maintains that parsimony should be pursued at a general level, by reducing overall levels of severity (system parsimony). The other maintains that opportunities for parsimony should be taken as and when they arise, and irrespective of whether this compromises any other value or principle (opportunist parsimony). Opportunists would therefore support the reduction of sentences for people in employment and people who pay compensation to their victims, and in a range of other cases which contravene the equality principle.

In brief, the principle of parsimony is based on the principle of liberty, that is to say, an offender should not be deprived of liberty, if a less restrictive way of dealing with the case is appropriate in the circumstances, e.g. payment of a fine.

ii)                Step-up Principle

The step-up principle is a sentencing principle closely associated with the principle of rehabilitation. It rests on a desire not to discourage genuine efforts at rehabilitation by imposing a sentence that “may be seen by [the offender] to be a dead weight on his future life.”[15] Thus, where there is a prospect of rehabilitation, a sentence should not be too large a step-up from a prior sentence.[16] Nonetheless, the step-up principle can be invoked where an offender is convicted of a similar or identical offence to one he has been convicted and sentenced in the past for, it can be concluded that the prior sentence was not sufficiently deterrent and so the sentence for the new offence should be increased to focus on specific deterrence.  

iii)              Principle of Equality or Non-discrimination

Human rights instruments and constitutional documents commonly enact a principle of equality or non-discrimination. One of the common passage is:

“Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.”

Equality before the law requires that persons should be uniformly treated, unless there is some valid reason to treat them differently. In its application to sentencing, the general principle of equality before the law means that no person should be sentenced differently because of their race, national or ethnic origin, religion, gender, sexual orientation, mental or physical disability or similar characteristics.

In sentencing, the equality principle may be invoked under two wider principles, i.e.

(       a)   Principle of Parity/Consistency

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Parity/consistency in sentencing is regarded as fundamental to a fair and equitable criminal justice system and ensures that two offenders who have committed similar crimes and have similar personal circumstances are going to receive a similar sentence. A judge has a responsibility to impose sentences in line with precedent, noting always that for each offence and each offender some elements are unique. Therefore, similar sentences should be imposed for similar offences committed by offenders in similar circumstances. However, in a situation of co-accused, the roles of the parties will be considered as well as their personal circumstances. The principle of parity does not require equal sentences for participants in the same offence. Rather, they must only [be] understandable sentences when examined together. Where accomplices who commit the crime at the orders of a principal and agree to testify against the principal can be afforded lesser sentences than the principal.

(           b)  Equal Impact Principle

The principle of equal impact also derives from the general principle of equality, but is separate from the principle of equality in its non-discrimination sense. The principle of equal impact was recognised by Bentham, who, despite his emphasis on general deterrence, argued for a rule which takes into account individual sensibilities in calculating punishment. The equal impact aspect of the general principle means that no sentence should be imposed that may be expected to have a more severe impact on an offender because of the offender’s race, religion, national or ethnic origin and so on.

iv)              Jump Principle

This principle of sentencing suggests that sentences for repeat offenders should increase gradually, rather than by large leaps. In R. v. Robitaille (1993), 31 B.C.A.C. 7, Lambert J.A. indicated that it should be used only in cases where rehabilitation is a significant sentencing factor.  An obvious example is where the offender is a young person who has committed very few offences. Clayton Ruby, Sentencing, 6^th ed. (Toronto: Butterworths, 2004), p. 339, opines that,

“Even when there is a marked increase in the seriousness of the crime committed, there should not be too great a ‘jump’ in the length of the sentence imposed.”

Read: R. v. Johnsrud, 2014 ABCA 395.

v)                 Gap Principle

This principle direct courts to take into consideration the gaps of time between offences. It gives credit to someone who has made an effort to avoid criminal charges.

Read: R. v. Smith, 2006 NSCA 95.

vi)              Concept of Mercy/Clemency/Lenity  

In the context of punishment, mercy entails a discretionary power of a judge to reduce or eliminate a just punishment or impose a lenient sanction.

For instance, in R. v. Schumann (2007) a woman who jumped off the Humber Bridge holding her small child, intending to commit suicide and to kill the child. She survived, and also managed to keep the child a float and alive until rescuers reached them. Her crime was attempted murder and the guideline indicated a high sentence, but the judge took account of her mental disturbance and her efforts to save the child in passing a short custodial sentence, and the Court of Appeal out of ‘mercy’ substituted a community sentence. This is a case where compassion for the offender was appropriate, and therefore a mitigated sentence based on mercy was in order.

vii)            Principles of natural justice/ Due process of the law

Concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Right to be heard, duty to give reasons for the decision/pronouncing sentence and giving reasons (by the sentencer), and duty to explain rights of the parties to the proceedings (by the sentencer), e.g. appeal. Sentencers have always been encouraged wherever possible to give full reasons for deciding upon a particular sentence. There are now a large number of statutory provisions requiring the court to explain why a particular sentence has been passed (or not passed) or why a particular approach to sentence has been taken.

viii)         Rule against Double Punishment

This principle requires the sentencers not to punish the offender twice for the same offence (i.e. rule against double vexation).

ix)               Principle of Jurisdiction

The sentencing court has to ensure that it has power to pass the sentence. For instance, in Tanzania, it is only the High Court and Court of Appeal which can impose a death penalty.

         F.      Sentencing factors

By definition, these may be said to mean factors that appear to influence sentencing courts, classed as aggravating or mitigating as follows;

i)                   Aggravating factors[17]

This principle is premised on the seriousness of the alleged offence. Initial factor in determining seriousness of the offence, involves four (4) levels of culpability, i.e.

·         Intention to cause harm: highest culpability where offence planned, the worse the harm intended the greater the seriousness.

·         Recklessness as to whether harm is caused: proceeds giving no thought to obvious risk of harm

·         Knowledge of specific risks entailed by actions, but does not intend to cause the harm resulting

·         Negligence Culpability increased: if defendant deliberately causes more harm than necessary for the commission of the offence, or defendant targets a victim who is vulnerable (i.e. by youth, old age or due to job).

Essentially, aggravating factors mean factors indicating higher culpability. They includes:-

Offence committed whilst on bail for other offences; Failure to respond to previous sentences Offence was racially or religiously aggravated; Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation); Offence motivated by, or demonstrating, hostility based on the victim’s disability (or presumed disability); Previous conviction(s), particularly where a pattern of repeat offending is disclosed; Planning of an offence; An intention to commit more serious harm than actually resulted from the offence; Offenders operating in groups or gangs; ‘Professional’ offending; Commission of the offence for financial gain (where this is not inherent in the offence itself); High level of profit from the offence; An attempt to conceal or dispose of evidence; Failure to respond to warnings or concerns expressed by others about the offender’s behaviour; Offence committed whilst on licence;  Offence motivated by     hostility towards a minority group, or a member or members of such a group; Deliberate targeting of vulnerable victim(s); Commission of an offence while under the influence of alcohol or drugs; Use of a weapon to frighten or injure victim;  Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence; Abuse of power; Abuse of a position of trust;  Multiple victims; An especially serious physical or psychological effect on the victim, even if unintended; A sustained assault or repeated assaults on the same victim; Victim is particularly vulnerable; Location of the offence (for example, in an isolated place); Offence is committed against those working in the public sector or providing a service to the public; Presence of others (e.g. relatives, especially children or partner of the victim); Additional degradation of the victim (e.g. taking photographs of a victim as part of a sexual offence); In property offences, high value (including sentimental value) of property to the victim, or substantial consequential loss (e.g. where the theft of equipment causes serious disruption to a victim’s life or business).

NB: Aggravating factors increase the seriousness of the offence or the offender's culpability. In terms of proof, the general rule in the Commonwealth is that aggravating facts must be proven beyond a reasonable doubt, mirroring the trial standard.

ii)                Mitigating factors

The law allows courts to reduce a sentence if a person pleads guilty. If the court gives a discount for a plea of guilty, the judge or magistrate must state what the sentence would have been without the guilty plea. The issue of remorse/contrition should be taken into account at this point along with other mitigating features such as admissions to the police in interview, degree of provocation, self-defense, guilty plea, and etc. Basically, mitigating factors reduce the seriousness of the offence or the offender’s culpability. The Common Law/English sentencing practice yields at least six (6) possible classes or groups of mitigating factors that have no bearing on proportionality. These are:-

a)                  Positive social contributions/ meritorious conduct/positive character/ clean criminal record

This group of potential mitigating factors includes cases in which an offender has saved another person from drowning while awaiting trial, or has done considerable voluntary service for the community. In the case of Jones [2012] 1 Cr App R (S) 149, where sentence was slashed on appeal from five years to six months, the personal mitigation included the fact that the twenty-two-year-old offender had worked in a youth parliament, had represented young people in her area, had been instrumental in opening youth clubs in the area, and was described as an outstanding conscientious student who was about to graduate from university. She had also dedicated herself to the care of her older sister with Down’s syndrome. The Court of Appeal said that ‘if ever there was a case of exceptional circumstances, this is it’.

b)                 Pursuit of equality policies

Sentencing law and practice incorporate various factors that stem from wider social policies. For example, the practice of aggravating a sentence where an offence has been motivated by race, religion, or discrimination on grounds of disability or sexual orientation. More relevant are the differential effect of sentences on women and the significance of employment. It is widely accepted that imprisonment has a greater effect on women generally, partly because women’s prisons are widely scattered and therefore further from their homes, partly because female prisoners can less frequently call on others to look after their family and home, partly because they have a higher rate of self-harming, and so on.

c)                  Severe collateral /consequential effects of conviction and sentence on the offender

This group includes other deprivations resulting from the conviction, such as loss of pension rights and employment prospects; any adverse physical consequences of the offence, such as an injury sustained by the offender; effects flowing from a long delay in prosecution, such as when a person has led a blameless life for many years. in Sweden factors of this kind are rationalised as ‘natural punishment’: the burglar who is injured while committing the offence has inflicted some ‘punishment’ on himself, and therefore requires less state punishment, and the same might be said of the fraudulent accountant who loses his career and his pension rights or a thief who has been mobbed and punished extra-judicially.

d)                 Severe collateral or consequential effects of the sentence on third parties

This group of potential mitigating factors includes the effect on a baby or young child of its mother being in prison, the effect on a sick relative of the offender being in prison, and the effect on employees of their employer being in prison.

e)                  Incentives to facilitate the smooth running of the criminal justice system

A reduction in sentence for pleading guilty (guilty plea) now forms part of many legal systems. For instance, sentence reductions for assisting the police or prosecution by giving evidence against other offenders. Admissions to police in interview, ready cooperation with authorities (assisting the police in indicting other criminals).

NB: In England, the reduction principle is not ‘an aspect of mitigation’ but an administrative discount for pleading guilty based on the cost savings in the case, the benefit of allowing other cases to be tried more expeditiously and the benefit to victims and witnesses of knowing that they will not need to give evidence.

f)                   Reparation, genuine remorse and other post-offence matters

The general rule is that events occurring after the crime are not relevant to sentence. However, some ‘best fit’ reasoning may be found in evidence that members of the public are more sympathetic towards offenders who apologise or otherwise show remorse, and that we should recognise the value of an offender publicly denouncing his or her own offending behaviour. Such a public self-denunciation should be rewarded in the only coinage available, reduction of sentence.

Summary of Personal Mitigating Factors: youth, pressing personal or family needs, vulnerable/immature/naive, psychiatric illness/problems, provocation, good character or limited/irrelevant/gap in previous offending, has led a productive/worthwhile life, has shown a general improvement in behaviour, offence uncharacteristic/let yourself down’, difficult/deprived background and, in relation to the defendant’s present and future, can address/is addressing drug problems, has family responsibilities, supportive family/partner, currently in work/training or prospects of work/training (the offender’s educational and vocational skills), can address/is addressing alcohol problems, lapse of time since commission of the offence, can or may make amends for offending behaviour, age (older), cultural demands, ignorance of the law, reasonable man test, offender’s physique, and physical illness/disability.

NB: the burden of proof in respect of mitigating factors, is on preponderance or balance of probabilities’ standard.

Cases:[18]

Lucas John v. R., Criminal Appeal No. 8 of 2002, in the Court of Appeal of Tanzania at Mwanza (Judgment delivered on the 16^th day of  July, 2004 by Lubuva, J.A., Mroso, J.A., and Kaji, J.A.).

Rweyemamu Thomas @ Kaningili Muzahura v. R., Criminal Appeal No. 370 of 2008, in the Court of Appeal of Tanzania at Mwanza (Judgment delivered on the 10^th day of November, 2011 by Munuo, J.A., Nsekela, J.A and Mandia, J.A.).

Kisukari Mmemo v. R., Criminal Appeal No.192 of 2013, in the Court of Appeal of Tanzania at Dodoma (Judgment delivered on the 11^th day of August, 2014 by Hon. Luanda, J.A., Massati, l.A., and Mussa, J.A.).

Summary: Sentencing principles/guidelines

The sentencer has to consider the:- need to promote consistency in sentencing; impact of sentencing decisions on victims of offences; need to promote public confidence in the criminal justice system; cost of different sentences; relative effectiveness of different sentences in preventing re-offending; and court must impose a sentence within the range provided for the offence in the penal laws.

       G.    Juvenile Delinquent: Sentencing factors and thresholds

For young offenders, rehabilitation is the principal consideration in sentencing. Notably, considerations that must be taken into account when sentencing a young offender includes:

·         the need to strengthen and preserve the relationship between the child and the child’s family

·         the desirability of allowing the child to live at home

·         the desirability of allowing the education, training, or employment of the child to continue without interruption or disturbance

·         the need to minimise the stigma to the child resulting from a court determination

·         the suitability of the sentence to the child

·         if appropriate, ensuring the child is aware of the need to take responsibility for any action that is against the law

·         if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.

NB: In the context of Tanzania, both national and international laws prohibit incarnation/imprisonment of young offenders, and mixing them with adult offender in detention facilities.

QUIZZES

1.      What are the stages or processes involved in a criminal trial?

2.      Are there justifications in our penal laws and policies for altering the otherwise appropriate sentence? Discuss using case laws, hypothetical cases and penal laws in Tanzania.

3.      “Courts should not have discretion to decide whether or not to reduce or impose a sentence” (Anonymous). Discuss the above quotation by showing the discretionary effect of mitigating and aggravating factors in sentencing.

4.      What are the differences and similarities between Criminal defences and Mitigating factors in sentencing?

5.      What is the nexus between aggravating factors and Mitigating factors?

6.      What do we mean by sentencing factors?

7.      What is the standard of proof of aggravating and mitigating facts at sentencing?

8.      Is there any difference between sentencing in Adult Court and Juvenile Court in Tanzania? If “yes”, list and examine the role of the victim’s personal statement, pre-sentencing records and reports from relevant authorities at sentencing an adult or a juvenile. 

9.      What is the effect of a failure by the court to give reason(s) for the sentence pronounced?

10.  Is there any formal sentencing guidelines or code for Judges and Magistrates in Tanzania?

11.  What are the likely effects of a criminal sentence to an offender and the society?

REFERENCES

·         Books/Articles

Ashworth, A. (2010) Sentencing and Criminal Justice: Law in Context. Cambridge University Press, London.

Ashworth, A. & Wasik, M. (1998) Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsch. Oxford Monographs on Criminal Law and Justice, Oxford University Press.

Bagaric, M. (2001) Punishment and Sentencing: A Rational Approach.  Cavendish Publishing Limited, London & Sydney.

Champion, D.J. (2008) Sentencing: A Reference Book. ABC-CLIO, Inc., California.

Meyer, L.R. (2010) The Justice of Mercy. The University of Michigan Press.

Roberts, J.V. (2011) Mitigation and Aggravation at Sentencing. Cambridge University Press, London.

Sarat, A. (2011) Merciful Judgments and Contemporary Society: Legal Problems, Legal Possibilities. Cambridge University Press.

Wasik, M. (2014) A Practical Approach to Sentencing, 5^th Ed. Oxford University Press, London.

Williams, D. (1974) the Minimum Sentences Act, 1972, of Tanzania. Journal of African Law, Vol. 18, No. 1, Criminal Law and Criminology (spring), Cambridge University Press, pp. 79-91.

·         

      Guidelines, Rules and Standards 

International: 

Basic Principles for Treatment of Prisoners, G.A. Res. 45/111, annex, U.N. Doc. A/45/49 (Dec. 12, 1990). 

Basic Principles on the Independence of the Judiciary, United Nations Secretariat, Report of Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, Italy (Aug. 26-Sept. 6, 1985), Ch. I, §D.2, annex. 

Basic Principles on the Role of Lawyers, United Nations Secretariat, Report of Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba (Aug. 27-Sept. 7, 1990) , Ch. I, §B.3, annex. 

Basic Principles on the use of Restorative Justice Programmes in Criminal Matters, E.S.C. Res. 2002/12, annex (July 24, 2002).

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N. Doc. A/RES/43/173 (Dec. 9, 1988). 

Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, annex, U.N. Doc. A/RES/34/169 (Dec. 17, 1979). 

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, U.N. Doc. A/RES/40/34 (Nov. 29, 1985). 

Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August – 7 September 1990, chapter 1, section C, paragraph 2(b). 

Guidelines for Action on Children in the Criminal Justice System, E.S.C. Res. 1997/30, annex (July 21, 1997). 

Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), G.A. Res. 45/112, U.N. Doc. A/RES/45/112 (Dec. 14, 1990). 

Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, E.S.C. Res. 2005/20 (July 22, 2005). 

Guidelines on the Role of Prosecutors, United Nations Secretariat, Report of Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba (Aug. 27-Sept. 7, 1990) , Ch. I, §C.26, annex. 

Implementation of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, E.S.C. Res. 1989/57, annex (May 24, 1989). 

Kadoma Declaration on Community Service and Recommendations of Seminar, “Criminal Justice: The Challenge of Prison Overcrowding”, San José, Costa Rica (Feb. 3-7, 1997), E.S.C. Res. 1998/23, annexes I and II (1998). 

Minimum Rules for Non-Custodial Measures (The Tokyo Rules), G.A. Res. 45/110, U.N. Doc. A/RES/45/110 (Dec. 14, 1990). 

Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, G.A. Res. 52/86, annex, U.N. Doc. A/RES/52/86 (Dec. 12, 1997). 

Plan of Action for the Implementation of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, E.S.C. Res. 1998/21, annex (July 28, 1998). 

Procedures for the Effective Implementation of the Standards Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 1984/47, annex (May 25, 1984). 

Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), G.A. Res. 45/113, UN. Doc. A/RES/45/113 (Dec. 14, 1990). 

Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), G.A. Res. 40/33, U.N. Doc. A/RES/40/33 (Nov. 29, 1985).

Standard Minimum Rules for the Treatment of Prisoners, United Nations Secretariat, Report of First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Geneva, Switzerland (Aug. 22-Sept. 3, 1955), annex I.A. Approved by Economic and Social Council, E.S.C. Res. 663C XXIV (July 31, 1957). Amended by the Economic and Social Council, E.S.C. Res. 2076 LXII (May 13, 1997). 

Regional:  Africa

African Commission on Human and Peoples’ Rights, Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines) (Oct. 2002). 

African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, OAU Doc. DOC/OS(XXX) 247, 12 Int'l Hum. Rts. Rep. 1180 (2005). 

Conference on Legal Aid in Criminal Justice: the Role of Lawyers, Non-Lawyers and Other Service Providers in Africa, Lilongwe, Malawi (Nov. 22-24, 2004), Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa. 

International Conference on Community Service Orders in Africa, Kadoma, Zimbabwe (Nov. 24- 28, 1997), Kadoma Declaration on Community Service Orders in Africa. 

International Seminar on Prison Conditions in Africa, Kampala, Uganda (Sept. 19-21, 1996), Kampala Declaration on Prison Conditions in Africa.   

Pan-African Conference on Prison and Penal Reform in Africa, Ouagadougou, Burkina Faso, (Sept. 18-20, 2002), Ouagadougou Declaration on Accelerating Prison and Penal Reform in Africa.

Cases:

Salum Shabani v. R. [1985] TLR 71.

Rashid Ramadhani v. R. (1968) HCD No. 323.

Manyanga v. R. (1970) HCD No. 284.

Mbaruku Ndima v. R. (1967) HCD No. 212.

Nguruwe v. R. [1981] TLR 66.

Mwizalubi Matisho v. R. (1970) HCD No. 296.

R. v. Albert Mwendenuka (1969) HCD No. 48.

Sajile Salemu v. R. [1964] E.A 341.

Lawrence Amuli v. R. (1970) HCD No. 72.

Joseph Hawksworth & Another v. R. (1970) HCD No. 271.

R. v. Oswald Bruno Kanga (1970) HCD No. 153.

R. v. Joha Mdachi (1967) HCD No. 355.

Lucas v. R. (1970) HCD No. 298.

R. v. Semberit Magnus Kassembere (1967) HCD No. 95.

F. Chilemba v. R. (1968) HCD No. 510.

Lubaga Senga v. R. [1992] TLR 357.

Bernadeta Paul v. R. [1992] TLR 97.

R. v. Gaudenzio Kiwhele & Another 1 TLR (R) 81.

R. v. Selemani Said & Another 1977 L.R.T N. 29.

Gulam Hussein v. R. 13 E.A.C.A 167.

Rashidi s/o Ally v. R. (1967) HCD No. 215.

R. v. Kisiwani Sisal Estate (1970) HCD No. 162.

R. v. Alli s/o Said (1967) HCD No. 364.

End notes:

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[1] Refer, sections 166, 170, 311, 314, 320 and 321.

[2] Juvenile Court

[3] Court-martial and Court-martial Appeal Court

[4] Read sections 4, 5, 6, 8, and 11.

[5] Sections 68, 71, 73, and 74.

[6] Tax Appeal Tribunal

[7] See, references

[8] Elias Joakim v. R. (1992) TLR 220, R. v. Kasongo s/o Luhogwa 2 TLR (R) 47, Musa s/o Bakari v. R. (1968) HCD No. 239, Elias Joakim v. R. [1992] TLR 220, Chilemba v. R. [1969] E.A 470, R. v. Paul Msilu (1968) HCD No. 64. Read also, Section 36 of the Penal Code, and Section 168 of the Criminal Procedure Act.

[9] Refer, Section 170 of the Criminal Procedure Act.

[10] Sections 25 & 26 of the Penal Code

[11] Read, Ally and Another v. R. (1972) HCD No.115.

[12] The Totality principle requires that where an offender is being sentenced to multiple terms at the same time, then the sentencer should ensure that the total sentence remains ‘just and appropriate/proportionate’ for the whole of the offending, reflecting the overall seriousness of the criminality.

[13] (1970) Principles of sentencing: The sentencing policy of the Court of Appeal Criminal Division.

[14] Refer also; Napier CJ in Webb v. O'Sullivan (1952) SASR 65 at 66; Veen v. The Queen [No.2] (1988) 164-465 at 473); R. v. Storey (1996) [1998] 1 VR 359 at 366; and R v. PP (2003) 142 A Crim R 369 at 374 (Parsimonious sentences).

[15] R. v. Robitaille, (1993) 31 B.C.A.C. 7, [1993] B.C.J. No. 1404 at para. 8.

[16] Extracted in the case of R. v. Kukelka, 2010 BCCA 180 (Court of Appeal for British Columbia).

[17] Read, Sections 321, 337, 341 and 342 of the Criminal Procedure Act.

[18] Available online.