Van Zyl Retief

Members of the public are often confused as to how judges or magistrates decide on an appropriate sentence for a convicted person. One often thinks that a sentence in a specific case is not harsh enough when compared to similar cases and that the courts are not consistent when it comes to imposing sentences. This article will briefly set out the factors which courts must consider during sentencing proceedings in order to show that different sentences can be appropriate in different circumstances.

The Appellate Division has stated in S v Rabie that the “punishment should fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstances”. This statement makes it clear that the sentencing procedure is not only an objective exercise where one must purely look at the crime which was committed and then impose a sentence accordingly but rather that the judicial officer imposing the sentence must also take into consideration other factors, such as the person who committed the crime.

The Supreme Court of Appeal has accordingly established a triad of considerations which must be taken into account when deciding on an appropriate sentence in the seminal case of S v Zinn. These considerations are:

  1. the personal circumstances of the person convicted of the crimes;
  2. the nature of the crimes including the gravity and extent thereof; and
  3. the interests of the community.

These considerations must be taken into account and balanced against each other in order to determine what sentence will be just and fair. The Appellate Division has, in an attempt to explain the relationship between these considerations, stated the following:

“A judicial officer should not approach punishment in a spirit of anger because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal and the interests of society which his task and the objects of punishment demand of him. Nor should he strive after severity, nor, on the other hand, surrender to misplaced pity. While not flinching from firmness where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality. It is in the context of this attitude of mind that I see mercy as an element in the determination of the appropriate punishment in the light of all the circumstances of the particular case.”

The elements of humaneness and mercifulness as mentioned in the above quotation are relevant when considering the personal circumstances of a convicted person. Here a court might, for example, decide not to impose a sentence of imprisonment on a convicted person who has minor children but rather another form of punishment such as a fine or a suspended sentence. Another example is where a court might decide to impose a lesser sentence after a convicted person has shown true remorse and has taken positive steps to right the wrong committed by him or her.

However, a court must also consider the punitive objectives of sentencing. The Western Cape High Court has stated in this regard in the case of S v Luke that “sentencing must also be directed at addressing the traditional purposes of punishment. Those are deterrence, prevention, retribution and rehabilitation of the offender”.

It is clear from the above discussion that a judicial officer must take a myriad of competing factors into account when deciding which sentence to impose on a convicted person. This is not an easy task and the subsequent sentence will inevitably leave some people disappointed. It is, furthermore, due to the difficulty of the task, not impossible that a judicial officer might impose a sentence on a convicted person which is not just and fair. This is why both the convicted person as well as the National Prosecuting Authority may take the sentence on appeal if either party feels that it is not fair.

Reference List:

  • S v Zinn 1969 (2) SA 537 (A)
  • S v Rabie 1975 (4) SA 855 (AD)
  • S v Luke and Others (SS16/10) [2012] ZAWCHC 9 (16 February 2012)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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