Limited Role of assessors in sentencing: Justified or Arbitrary ?

 

In S v Botha 2006 (2) SACR 110 (SCA) the accused was convicted

of murder and an attempt to defeat the ends of justice and sentenced

to an effective 18 years imprisonment. In imposing the

sentence the trial judge (who was sitting with two assessors) stated

that this sentence had been agreed upon 'unanimously'. From this

it was inferred by the accused that the sentence 'was not the product

of the learned judges' independent discretion, but was the product

of a discretion exercised by the judge acting in concert with the two

assessors' (at 114d-e).

This, in turn, raises the question of the ambit and nature of the

power and functions of a presiding officer when it comes to the

imposition of any sentence. In particular, the question must be

surveyed within the context of the role played by assessors.

The Supreme Court of Appeal (per Ponnan AJA) commenced by

reiterating the trite assertion that 'an assessor's function does not

extend beyond verdict' and therefore that it is 'not competent for

an assessor to participate thereafter in the decision as to what

punishment should be imposed' (at 114h-i). But this does not

mean to say that the presiding judge cannot consult with the

assessors on the basis of what is an appropriate sentences 'but the

sentence must remain that of the judge alone' (at 114j).

It is submitted that the question raises some important considerations

around the sentencing process and the constraints imposed

upon presiding officers. This is because, although it is accepted that

it is the presiding officer alone that is empowered to exercise a

discretion in regard to imposition of sentence, there is nothing to

prevent the presiding officer from consulting others in order to

determine a suitable sentence. Particularly so in the case of assessors

who have sat through the trial and hence would have first-hand

knowledge of the issues concerning an appropriate sentence.

In addition, in practice, assessors are usually not asked to retire

after the verdict (when their functions have formally ended) but

rather to remain on the bench and listen to arguments on sentence.

A logical consequence of this would be that the judge would consult

with them and take their advice into account in determining an

appropriate sentence

Therefore what is of significance in this respect is the precise

meaning and context of the word 'unanimous'. If it simply meant

that the judge discussed the sentence with the assessors and took

their advice, but the ultimate decision remained that of the judge

alone, then any 'unanimity' that might be reached between the

judge and the assessors 'is but a logical extension of that process' (at

115c). However, where ajudge and assessors hold different views on

sentence 'it would be impermissible for the judge to succumb to the

will of the assessors in the belief that they constitute the majority of

the court' (at 115a)