Sentencing

SENTENCING

Sentencing is the procedure that follows the conviction of an accused of an offence and relates to the “punishment” such accused will receive.

 

PROCEDURE

After the Court has given Judgment in a criminal matter and the accused has been convicted of an offence, the accused’s legal representative will have to address the Court, on behalf of the accused, in respect of the mitigating and other factors which need to be taken into consideration when the court decides upon a propper and just sentence in correlation with the offence committed.

After the accused’s legal representative has addressed the Court, the Public Prosecutor will address the Court, on behalf of the State, in respect of the aggravating factors which the court should take into account.

The Court will then proceed to sentence the Accused in accordance with the facts at hand.

 

FACTORS THAT SHOULD BE TAKEN INTO ACCOUNT:

There are a number of factors which need to be taken into account when the court decides upon a sentence, which are the following:

  • The three pillars of sentencing:
    • The offense;
    • The offender;
    • The interest of the society;

        "So called Triad in Zinn which was formulated in S vs Zinn 1969 (2) SA 537 (A)"

  • Other factors which may be taken into account which does not form part of the pillars referred to above, are:
    • Degree of participation in committing of the crime;
    • Motive;
    • Provocation;
    • Solicitation;
    • Resentment;
    • Pressure.
  • The last and most important factor is Remorse shown by the accused.

 

TYPES OF SENTENCES

There are several sentencing options available to the court which the court can utilise to reach a just and equitable sentence. Some of these options are as follows:

Direct Imprisonment which is regulated by Section 276 of the Criminal Procedure Act 51 of 1977.

  1. Periodical Imprisonment
  2. A Fine
  3. Warning
  4. Suspended sentence in various forms
    1. Direct imprisonment and a fine which is suspended in whole
    2. Direct imprisonment coupled with a fine. (If the fine is paid the Direct imprisonment is suspended)
  5. Correctional Supervision.

 

DECLARATION BY COURT

A Court can further declare a person to be one of the following:

  1. a Habitual Criminal; and/or
  2. a Dangerous Criminal.

These are declarations that obviously influence a person’s status and can therefore only be declared by a Regional and a High Court. This can furthermore serve as another sentence.

 

COMPENSATION ORDER BY CRIMINAL COURT

In terms of Section 300 of the Criminal Procedure Act 51 of 1977 a Court can furthermore order an Accused to pay damages compensation to the Complainant. This can furthermore serve as part of a sentence.

 

CONCLUSION

An accused’s upbringing, personal circumstances, devastating events, as well as trauma in such person’s life may have an effect on an accused’s sentence and can be explained by the following example: two persons are convicted of the same offence of shoplifting. The first person is one that lives on the street, has no income, no shelter and no food and as a result of hunger steals food.  The second person is a rich lady from a rich neighbourhood whom, as a result of Kleptomania steals expensive lingerie. It is clear from the scenario that both persons’ circumstances differ and therefore their sentences cannot be the same. Legal representatives should know the law regarding sentencing and be able to argue same on behalf of their clients. Legal representatives are not however, suitably qualified to comprehensively report on the personal circumstances and other mitigating factors. For this reason it will often be advised for an accused facing sentencing to appoint a suitably qualified person in the form of a for instance a social worker specialising in same to conduct a pre-sentencing report to be utilised by the court in determining what a just and equitable sentence will be in a particular matter.

FOR MORE INFORMATION OR TO SCHEDULE A CONSULTATION KINDLY CONTACT:

Office:                        012 346 4103

SD Nel                       082 303 8303

Rikus Stander          079 840 4717