The law on sentencing
JOHANNESBURG – The passing down of a sentence in South African law is both complex and interesting and judges often come under scrutiny for their decisions.
Social media is often buzzing with heated comments on a prison sentence that has been handed down by a judge.
An interesting question here is how a judge decides what an appropriate sentence is?
Attorney Tamara Stork explained that the judge considers numerous factors when passing down a sentence. The same applies in South African law, where the judge uses his or her discretion to decide what an appropriate sentence is.
Stork explained, “In South Africa, sentencing subsequent to being found guilty of a crime rests on the fundamental premise that the trial judge is vested with the discretion to decide on a suitable sentence. It is important to note that the discretion must be exercised reasonably and judicially. The judge focuses on three factors which are the actual offence, the personal circumstances of the accused and the best interests of the public.”
Stork explained that Criminal Procedure Law explains how sentencing works. “For example, a person may be sentenced to life imprisonment or a shorter period, for example, 10 years.”
An important case in respect of sentencing is the Zinn case. “In this case, the courts found that the punishment should fit the criminal as well as the crime and can be blended with a measure of mercy depending on numerous factors.”
Stork said that a sentence should always be reasonable.
“In terms of rape, the offence is a grave and controversial one, which is extremely prevalent in South Africa. In sentencing the rapist, the judge may consider whether the rapist had committed prior offences, for example. The judge, therefore, considers the sexual offender’s personal circumstances.”
In other cases, the judge has considered the health of the accused when passing a sentence or whether or not they were under the influence of alcohol or drugs.
“If the offense involves violence, the aggravating factors may be the degree and extent of the violence used, the nature of any weapon, the brutality and cruelness of the attack, the nature and character of the victim, including whether the victim was unarmed, or helpless, and so on,” highlighted Stork.
The judge also considers public interest and Stork concluded, “It is set out that the sentence ought to serve the public interest. For example detaining an offender for a longer period of time for the purposes of public safety.”
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