Chapter 19

Question 1

Discuss pre-sentencing investigation

Answer 1

Discretion to impose a suitable sentence lies with the sentencing officer. Sentencing officer cannot do without sufficient factual information on which to base the decision. Tradition requires the accused and state to supply this information.
1- PREVIOUS CONVICTIONS: state indicates whether accused has any previous convictions. Such evidence of previous conviction provided by supplying Accused’s finger print record and is prima facia proof of previous conviction. Court then decides matter on evidence.
S271A: certain previous convictions fall away after 10years if accused has not committed serious offense during that period.
CONVICTIONS THAT FALL AWAY ARE:
- less serious crimes where six months imprisonment without option of a fine
- any offense for which passing of sentence was postponed for which accused was merely cautioned and discharged.
2- THE ACCUSED ON SENTENCE: previous convictions have been dealt with, accused given opportunity to supply evidence in mitigation of sentence. In less serious cases, mitigation features described by accused or legal representative simply by addressing the court from the bar.
3- DUTY TO SUPPLY INFORMATION: tradition to require that state or accused supply information necessary for court to decide on suitable sentence. May be accepted by accused person who is aware of his rights, normally take opportunity to provide court with information in mitigation of sentence. Court however must not passively stand by and listen to a one sided picture from the accused. Criminal trial does not have conviction as ultimate aim, but rather a suitable sanction.

Question 2

Discuss between mitigating and aggravated factors

Answer 2

When considering sentencing court must consider mitigating and aggravating circumstances. Large number have already been accepted by our Courts such as premeditation, abuse of trust, or presence of remorse, whether the offender is married or employed.

Question 3

Determine the effect of previous convictions on sentence as an aggravating factor

Answer 3

Person who is convicted time and again of offences will progressively be punished more severely. This is because the offender, by continuing to commit offences shows a high disregard for the law and it is believed that a higher penalty is more likely to deter the offender from committing more crime.

Question 4

Discuss the different forms of punishment that may be imposed

Answer 4

S276- Sentences that may be passed
1- Imprisonment
2- Committal to a treatment centre
3- Fine
4- Correctional supervision

S297
1- Suspension of a sentence on various conditions
2- Conditional or unconditional postponement of
Imposition of a sentence
3- Caution and discharge

Question 5

Discuss compensation with regards to the victim

Answer 5

Makes provision for compensation to victims in various ways and contained in S300:
Provides that any convicted person who has caused damages or loss of property to another person through his crime, in certain instances may be ordered to compensate the victim. Such an order has the effect of a civil judgement.

Question 6

Discuss restitution of a victim

Answer 6

S301- court may order at the request of the bona fida buyer, that he be compensated out of money taken from convicted thief when the latter was arrested, provided ofcourse that the buyer return the goods to the owner thereof.

Question 7

Discuss the courts sentencing discretion

Answer 7

Court has wide-ranging powers to impose sentences. In deciding how to impose power in a specific case, court exercises its discretion which involves making choices from various possibilities. These possibilities refer to various types of sentences and also measure of type of sentence decided upon. Court expected to act within limits impose by legislation and guidelines laid down by higher courts. The reason for the discretion is so that courts can adapt their sentences to provide for the slightest differences between cases. Disadvantage is the should the same offense be heard by two difference judicial officers, there may be a vast difference in the sentences imposed. This creates a conflict with s9 of the constitution which emphatically stress equality of all people before the law.

Question 8

What are the various forms of punishment

Answer 8

1. Ordinary imprisonment for a term determined by the court
2. Imprisonment for life
3. Declaration as a dangerous criminal
4. Declaration as a habitual criminal
5. Periodic imprisonment
6. Sec276 imprisonment

Question 9

When are fines imposed

Answer 9

If statue does not mention a fine in its penalty clause, it may not be imposed.

Factors which determine whether a court can impose a fine:

1- fine should not be so serious that imprisonment is called for
2- offender must have some financial means with which a fine can be paid
3- crimes are committed for financial gain, in which case a fine may be imposed to indicate to the offender that crime doesn’t pay.

Question 10

Factors taken into account regarding the amount of the fine

Answer 10

Quantum of the Fine guided by Accused’s means. Court imposed fine in order to keep accused out of prison. Fine must reflect the gravity of the crime. A fine must be in correlation with the offenders earning capacity. Poor mens fine will weigh heavily on him but not on a middle aged man and then a rich man etc. court must determine how heavily the fine must punish the offender and the amount that will punish the particular offender as heavily as he deserves.