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CMY3704 STUDY GUIDE 2023
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CMY3704 STUDY GUIDE 2023
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CMY3704STUDY
GUIDE
2023
, THEME 1
Sentencing
CONTENTS
Learning unit 1.1: The issue of sentencing 4
Learning unit 1.2: The traditional triad 19
Learning unit 1.3: Mitigating and aggravating factors 28
Learning unit 1.4: The pre-sentencing investigation and report 38
Learning unit 1.5: Victim impact statements 59
.........
1 CMY3704/1
,TOPIC 1 SENTENCING
INTRODUCTION
Crime and violence are pervasive in South Africa. The 2019/20 crime
statistics provide for gloom reading regarding the prevalence of crime
and the state of public safety in South Africa. It is therefore very important
to understand the reaction to crime, which can be divided into two types,
namely informal and formal reaction to crime.
The informal reaction to crime deals with the response of social
structures, for example communities, churches and schools. Contrary to
this, the formal reaction to crime deals with the response of authorities
like the police, judicial system and correctional services.
Theme 1 of this study guide links up with the formal or official reaction to
crime. If a court finds an accused not guilty, the person is discharged and
the justice process comes to an end. However, where an accused is
found guilty, sentencing takes place during the trial phase of the justice
process. At this stage the court is faced with the task of deciding on an
appropriate sentence.
The sentencing process can be summarised as follows:
● Proof of previous convictions (if there are any).
Fingerprints are analysed to determine whether the accused has a
criminal record, which is then presented in court.
● Arguments in mitigation or aggravation of punishment.
The accused and the defence have the opportunity to bring factors in
mitigation of the sentence to the attention of the court. The legal
representatives may argue the mitigating factors on the basis of facts
that were already presented to the court. The accused can give
evidence him- or herself on, for example, personal circumstances, the
motive for the crime and personal remorse experienced.
Other people/role players, such as a criminologist, can give expert
evidence on the accused’s background and/or personality that may
assist the court to determine an appropriate sentence. At this point,
the pre-sentencing investigations, pre-sentencing reports and victim
impact statements are very important. The prosecutor may cross-
examine the expert witnesses.
After the defence has provided evidence of mitigating factors, the
state is given the opportunity to highlight factors in aggravation of
punishment. There are several factors that can be regarded as
aggravating, which will also be discussed in Theme 1. The state
witnesses may be cross-questioned by the defence after which both
the accused (and their legal representative) and the prosecutor are
provided the opportunity to address the court.
● After all the mitigating and aggravating evidence were heard, the
court must decide on an appropriate sentence. If the accused was
found guilty of a common-law offence, no specific sentence is
prescribed and the presiding officer has wide discretion in determining
an appropriate sentence. However, if the accused was found guilty of
.........
2
, Sentencing Topic 1
a statutory crime, sentencing options are laid down by law and
sentencing discretion is limited to an extent. Even when the court
exercises discretion, it is in a certain sense bound to basic sentencing
principles, such as inter alia the court’s jurisdiction, the type of
punishment, maximum or minimum sentences, punishment objectives,
the personal circumstances of the offender, the nature of the crime
and the interests of society. The presiding officer must, however,
combine this discretion with mercy to ensure that a sentence is
punitive and not used to destroy an offender. The court should
therefore not decide on an appropriate punishment alone as in many
cases there is a further question of the extent of punishment.
To address the complex issue of sentencing an offender after a
conviction, Theme 1 is divided into the following learning units:
Learning unit 1.1: The issue of sentencing
Learning unit 1.2: The traditional triad
Learning unit 1.3: Mitigating and aggravating factors
Learning unit 1.4: The presentencing investigation and report
Learning unit 1.5: Victim impact statements
.........
3 CMY3704/1
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