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1. Introduction
● Aim of criminal justice system is law enforcement, prosecution of offenders +
punishment of convicted offenders.
● In SA, sentencing is primarily right of trial courts.
● It forms last part of trial process + involves penalty/punishment that convicted offender
receives.
● In SA cultural diversity makes sentencing process more complex
● Before judicial officer imposes sentence on offender in any given case, he/she 1st has to
determine which sentences may be imposed.
○ done through interpretation of relevant penalty clauses.
● Court has to collect all information relevant to determination of suitable sentence.
● Once complete, court has to exercise its sentence discretion to choose most appropriate
sentence from list of possibilities
2. Key Concepts
2.1 Sentencing
● In Afrikaans - “vonnisoplegging”+ “straftoemeting” are used interchangeably, while in
English only the term ‘‘sentencing’’ is used to describe post-conviction stage of criminal
justice process.
● Offender is brought before court for imposition of penalty.
2.2 Sentence/punishment
● Sentence : penalty imposed by court on accused who was found guilty of transgression
(committing an offence), with primary goal of punishment.
● It ends trial process in court.
● Punishment is usually also sentence (perhaps with exception of warning).
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,CMY3704
THEME 1
Sentencin
Learning unit 1.1: The issue of Sentencing
1. Introduction
● Aim of criminal justice system is law enforcement, prosecution of offenders +
punishment of convicted offenders.
● In SA, sentencing is primarily right of trial courts.
● It forms last part of trial process + involves penalty/punishment that convicted offender
receives.
● In SA cultural diversity makes sentencing process more complex
● Before judicial officer imposes sentence on offender in any given case, he/she 1st has to
determine which sentences may be imposed.
○ done through interpretation of relevant penalty clauses.
● Court has to collect all information relevant to determination of suitable sentence.
● Once complete, court has to exercise its sentence discretion to choose most appropriate
sentence from list of possibilities
2. Key Concepts
2.1 Sentencing
● In Afrikaans - “vonnisoplegging”+ “straftoemeting” are used interchangeably, while in
English only the term ‘‘sentencing’’ is used to describe post-conviction stage of criminal
justice process.
● Offender is brought before court for imposition of penalty.
2.2 Sentence/punishment
● Sentence : penalty imposed by court on accused who was found guilty of transgression
(committing an offence), with primary goal of punishment.
● It ends trial process in court.
● Punishment is usually also sentence (perhaps with exception of warning).
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, ● It is firm infliction by state to serve as suffering for committing criminal offence.
● Refers to the following:
○ something unpleasant for offender.
○ result of crime.
○ imposed on offender who committed crime.
○ entails sanctions by court which has necessary authority.
● 5 most common purposes of punishment:
○ deterrence
○ incapacitation
○ rehabilitation
○ retribution
○ restitution.
2.3 Mitigating factors
● any info/evidence that can be presented to court regarding accused’s circumstances of
crime that might result in lesser sentence/ reduction in charges.
● refers to reduction of severity /moral culpability of accused as offender +/
blameworthiness of accused’s action.
● As result of reduced culpability /blameworthiness, presiding officer may impose lighter
sentence/penalty than normal, based on evidence presented to court.
● Whether factor is indeed mitigating factor is inevitably question that can only be judged
by trial court on basis of all relevant facts of certain case.
2.4 Aggravating factors
● any information /evidence that can be presented to court regarding crime that might
intensify charges.
● refers to those factors that are considered during sentencing that increase severity
/culpability of criminal act, so as to aggravate sentence, inter alia, prior record of similar
convictions, use of weapon + severity of injuries suffered by victim.
● Aggravating factors generally result in harsher sentence, because:
○ they increase accused’s moral culpability (moral blame, blameworthiness);
○ they increase moral culpability of offender in eyes of society
○ they increase reprehensibility of accused’s deed.
2.5 Consistency
● equal rights (permanence /uniformity) during sentencing + implies that offenders who
commit similar crimes + with similar personal circumstances should be dealt with in
same way.
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, 2.6 Discretion
● imposing of punishment/ sentencing discretion entails choice between different forms
of punishment (except where specific punishment is prescribed) + normally also weight
/quantity (measure) of sentencing option court decides on.
2.7 Goals / objectives of punishment /purpose of punishment
● very important because pointless sentences would be meaningless + unacceptable.
2.8 Accused
● applicable to people who have not yet been found guilty by court
2.9 Deterrence
● act of discouraging action /event through instilling doubt /fear of consequences.
● View that people will refrain from crime because of existence +action of punishment.
● Individual (specific) deterrence is about experience of offender who is being punished.
● Aim of punishment is to discourage offender from future criminal acts.
● Underlying assumption is that someone who has been subjected to punishment once,
will be conditioned to avoid crime in future based on unpleasant consequences of their
actions.
● General deterrence - individual offender should be punished in such way that it can
serve as example +prevent potential criminal from committing crime.
● Aims to stop public at large form entering into illegal activities through threat of legal
punishment.
2.10 Determinism
● All events, including moral choices, are completely determined by previous existing
causes.
● This concept usually excludes free will.
2.11 Indeterminism
● There is nothing that causes occurrence of certain decisions + acts.
● It only happens out of pure chance.
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