LAHORE: The Punjab Sentencing Act 2019, introduced by the Buzdar government in the provincial assembly earlier this week, will, if passed, give a new shape to the criminal justice system in Punjab (read Pakistan) as it demands from courts to mention reasons for awarding longer or shorter imprisonments in criminal cases.

The law will be applicable in the cases where a time range (duration) of imprisonment is a punishment. Capital punishment is out of its purview.

The bill says that in determining a sentence, a court shall take into account the purpose of sentencing and seriousness of an offence as defined by this law.

In considering the seriousness of any offence, the court shall consider the aggravating and mitigating factors proved during trial.

The aggravating factor, as defined by the draft law, include: the offence involved actual or threatened violence or the weapon, unlawful entry into or presence in a dwelling place, the offence was committed while the offender was on bail or already subject to a sentence, the extent of any loss, damage, or harm resulting from the offence and marked cruelty in the commission of the offence.

Others are: The offender was abusing a position of trust or authority in relation to the victim, the victim was a police officer, a prosecutor or a judge acting in the course of his or her duty, or particularly vulnerable because of his or her age or health or because of any other factor known to the offender, the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age or disability, the nature and extent of any connection between the offending and the offender, participation in a proscribed organisation and involvement in any other form of organised criminal association, premeditation on the part of the offender and, if so, the level of the premeditation involved.

On the other hand, the mitigating factors are: the age of the offender, whether or when the offender pleaded guilty, the conduct of the victim, limited involvement of the offender in the offence, the offender has or had at the time of the offence diminished intellectual capacity or understanding, any remorse shown by the offender, any actions taken by the offender to undo the loss or injury caused by him.

Others are: the offender has taken steps during the proceedings to shorten the proceedings or reduce their cost, any adverse effects on the offender of a delay in the disposition of the proceedings caused by a failure by the prosecutor, law enforcement agencies and any other agency associated with the trial to comply with procedural requirement and any evidence of the previous good character of the offender.

The laws says that the court shall consider the following factors as aggravating elements if it is sentencing or otherwise dealing with an offender in a case involving serious violence against a child under the age of 14 years.

These factors include defenselessness of the victim, in relation to any harm resulting from the offence, any serious or long term physical or psychological effect on the victim, the magnitude of the breach of any relationship of trust between the victim and the offender, threats by the offender to prevent the victim from reporting the offence, and deliberate concealment of the offending from the authorities.

If the offence was religiously motivated, the court shall treat the fact as an aggravating factor, and state in the judgment that the offence was so aggravated.

The law binds the courts to indicate mitigating and aggravating factors while imposing a custodial sentence.

Before deciding the sentence, a court shall assess the following things: whether there is a statutory minimum sentence or mandatory sentence that must be imposed in case of a guilty verdict, whether there is a sentencing guideline on the subject and its recommendations, the aggravating and mitigating factors involved.

Where a court proposed to impose a fine only in an offence where a sentence of imprisonment of more than 12 months or fine may be imposed by law, it shall provide an opportunity to the prosecutor or prosecuting agency to address it on sentencing.

The law provides for the establishment of a sentencing council which will develop and issue sentencing guidelines, monitor and assess the impact of sentencing provisions and guidelines on sentencing practices, create public awareness regarding the realities of sentencing, consider the impact of sentencing decisions on victims and play a greater part in promoting understanding of and increasing public confidence in sentencing and the criminal justice system.

Every court shall have regard to any relevant sentencing guideline while sentencing an offender, the bill says.

Published in Dawn, July 1st, 2019