The Criminal Justice System and Absence of Sentencing Guidelines
A sentence is the punishment a judge or magistrate decides should be given to someone who has been convicted of a crime. The sentence imposed on an offender should reflect the crime they have committed and be proportionate to the seriousness of the offence. It is up to the judges or magistrates to decide how much weight to give each factor in the case they are dealing with.
Criminal offences in Pakistan are very broadly defined and can have different levels of seriousness. In this context, sentencing guidelines play a key role by ensuring that courts are consistent in their approach to sentencing. Such guidelines provide guidance on factors the court should take into account that may affect the sentence given. They set out different levels of sentence based on the harm caused to the victim and how blameworthy the offender is. Offences happen in many different ways with many different results. For example, assault offences can range from an argument where someone pushes someone else, causing no injury, up to a carefully-planned gang attack that causes life-changing injuries. It is, therefore, necessary to have a range of sentences that appropriately reflect the seriousness of each individual offence. Hence, the absence of clear and consistent sentencing guidelines causes unwarranted discrepancies under the criminal justice system.
In the UK, sentencing guidelines are available for most of the significant offences sentenced in the magistrates’ court and for a wide range of offences in the Crown Court. There is also guidance on general sentencing issues and principles. These guidelines are not specific to individual offences. Where no guideline exists, judges refer to court of appeal judgments to examine how sentences have been reached for similar cases in the past.
In numerous other jurisdictions including US, Australia and Canada, there are various things that sentencing sets out to do when dealing with the vast majority of adult offenders. While punishing the offender for the crime committed is one of the purposes, a sentence should ideally aim to:
• Reduce crime
– by preventing the offender from committing more crime and putting others off from committing similar offences.
• Reform and rehabilitate offenders
– changing an offender’s behaviour to prevent future crime for example by requiring an offender to have treatment for drug addiction or alcohol abuse.
• Protect the public
– from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison, restricting their activities or supervision by probation.
• Make the offender give something back
– for example, by the payment of compensation or through restorative justice. Restorative justice gives victims the chance to tell offenders about the impact of their crime and get an apology.
In addition to having regard to the above purposes of sentencing, a judge or magistrate should use sentencing guidelines, which set out the process they should follow and the factors they should consider, to work out the appropriate sentence.
For each crime there is a range of sentences available and the judge or magistrates have to decide which type of sentence is right. They should think about seriousness, harm to the victim, the offender’s level of blame, their criminal record, their personal circumstances and whether they have pleaded guilty. They should also refer to the law including the maximum and in some cases, minimum sentence and any sentencing guidelines relevant to the offence committed. These factors may be relevant in determining the type of sentence as well as the sentence length, requirements or amount. The factors taken into account in each case will vary depending upon the facts of each individual case, but the approach taken by the sentencing judge will be consistent.
The judicial system of Pakistan does not follow such practices and the quantum of sentence is determined by the judge at the time of conviction. This is in contrast to jurisdictions of developed nations where separate hearings are undertaken for conviction and sentencing purposes. Section 366 of C.R.P.C states that the judgment in every trial in any criminal court shall be pronounced in an open court either immediately after the conclusion of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders. Section 367 of the C.R.P.C explicitly states the requirements of the judgment whereby, it should be written in the language of the Court, the punishment to which an accused is sentenced is to be similarly specified in the judgment delivered. In most offences laid out under the law, including the PPC, punishments are given for upto a maximum period. No sentencing guidelines are provided under the Pakistani law and no separate sentencing hearings are conducted. Sentencing falls under the complete discretion of the judge provided it does not exceed the maximum punishment. This creates chaos and uncertainty where the amount of time an individual is supposed to spend behind bars depends upon the discretion exercised by the judge.
At the time of recording conviction of an accused, prosecutors are looking for maximum punishments which are frequently given by the trial courts. This culture often leads to unfair sentencing where above mentioned factors, taken into account by courts of other jurisdictions, are not considered when deciding the quantum of punishment. In the case of Ameer Zeb vs The State (PLD 2012 SC 380), the Supreme Court held that the harder the sentence the stricter the standard of proof that is required. Such a view was based on the ignored reality that the accused person is at the receiving end of long and stringent punishments and therefore safeguards from his side should not be sacrificed for purposes of pleasing the prosecution.
Inconsistent sentencing patterns create uncertainty and diminish the overall value of the Criminal Justice System. This uncertainty has forced various jurisdictions including the US and UK to develop and implement sentencing guidelines which provide consistency in determining the punishment for offenders. Despite the absence of formal sentencing guidelines within the Criminal Justice System of Pakistan, the courts have considered factors that should be taken into account while passing sentences. For instance, in the case of Ghulam Murtaza v The State, a three member bench headed by Justice Asif Ali Khosa approved and prescribed sentences for different quantities of various bands of contraband narcotic substances recovered in connection with Control of Narcotic Substance Act 1977. The judgement stressed upon the social and economic factors including the background, gender and previous convictions to be taken into account while sentencing the accused.
Our judicial system may use UK’s sentencing system as a model for purposes of introducing and implementing uniform and standardized sentencing policies. The Sentencing Council in the UK comprises 9 judicial and 7 non judicial members. The guidelines developed by the Sentencing Council are binding on courts and any departure from the same must be in the interests of justice. In the absence of sentencing guidelines, judges often pass maximum punishments without taking into account mitigating factors that may be relevant in a particular case. This has led to an overcrowded prison system where individuals convicted of minor crimes, instead of being offered rehabilitation facilities, are detained and exposed to those convicted of more serious and heinous crimes. Despite the fact that our Criminal Justice System fails to provide just and fair outcomes because courts often deal with conviction and sentencing collectively and mix the two, the Law Commission Reports have failed to take notice of this major issue. It is high time that a coherent system of sentencing policies and guidelines be introduced to save our judicial system. The Law and Justice Commission of Pakistan should take initiative to introduce and implement sentencing guidelines so that the discretion exercised by the courts while sentencing an accused is reasonable and with the prescribed principles.