Part 8- Sentence

Question 0

What does the sentence, detainment until the ‘rising of the court’ entail?

Answer 0

In the Msimango case it was decided that the court ‘rises’ as soon as it has disposed of a case and the offender is therefore entitled to his release before the next case is called.

To call this imprisonment is clearly a fiction.

Question 1

What stage does sentencing take place, and what does it entail?

Answer 1

• Sentence can be viewed as that stage of the trial where finality is obtained.
• It is where the presiding officer imposes the appropriate penalty in respect of the offence for which the accused has been convicted.

The passing of sentence and types of sentence imposed is generally the most popularly debated aspect of any criminal case.

Question 2

Is a sentence of detainment until the ‘rising of the court’ recognised in our law?

Answer 2

A sentence that the accused be detained until the rising of the court would undoubtedly attract public reaction, however, such form of imprisonment as a sentence is permitted in terms of:

• s284 of CPA; and
• is recognised in our common law (See S v Letswalo)

Question 3

What duty rests with the presiding officer in sentencing an offender?

Answer 3

Save where a statutory sentence is prescribed, the imposition of sentence requires the presiding officer to exercise a JUDICIOUS DISCRETION taking into account the (sentencing triad):
1- Seriousness of the offence;
2- Interests of society;and
3- Personal circumstances of the accused (S v Zinn)

The sentence should also be TEMPERED BY MERCY depending on the circumstances (See S v Rabie)

Question 4

What two Constitutional aspects must the presiding officer consider when deciding whether or not to imprison an offender?

Answer 4

Whether or not to imprison an offender is a crucial decision that any presiding must consider from a constitutional point of view, namely depriving an individual of her liberty or serving the public interests by removing the offender from society (Joubert 323).

Question 5

What are the minimum sentences for imprisonment that can be handed down to an offender?

Answer 5

S51 of the General Law Amendment Act 105 of 1997 (the GLAA) provides for the imposition of minimum sentences for a wide range of serious crimes – from 5 to 25 years imprisonment.
- Crimes such as robbery, murder and rape.

Question 6

When is the maximum sentence of life imprisonment prescribed?

Answer 6

• Premeditated murder;or

- Rape with aggravating circumstances life imprisonment is prescribed.

Question 7

What does life imprisonment entail?

Answer 7

Imprisonment for life is in essence an indeterminate sentence of life in prison.

Question 8

What must a sentence of life imprisonment always be considered with?

Answer 8

Life imprisonment must always be considered alongside the possibility of:

• Parole:
Persons sentenced to life:
- Prior to October 2004 could be considered for release on parole after 20 years in prison; and
- If sentenced after October 2004 then prisoner must serve at least 25 years in prison or on reaching the age of 65 (if at least 15 years has been served) in terms of s 78(1) of the Correctional Services Act; or

• Release from imprisonment in terms of an amnesty pursuant to the exercise by the State President of his prerogative in terms of s 84(2)(j) of the Constitution.

Question 9

Who can impose a sentence of life imprisonment?

Answer 9

Since the abolition of the death penalty, life imprisonment is the harshest form of sentence a court can impose and due to the seriousness thereof it can only be imposed by Regional or High Courts.

Question 10

When may courts impose a sentence which is lower than the minimum sentence in terms of s51 of the GLAA?

Answer 10

The minimum sentence (i.e. 5 years) can be avoided where the presiding officer ‘SUBSTANTIAL AND COMPELLING’ circumstances which justify the imposition of a lesser sentence, thus ‘limiting but not eliminating’ the discretion of the court.
(See Dodo v The State).

In the exercise of such discretion it is important to consider the principles that the Constitutional court in Dodo endorsed.

Question 11

When will prescribed minimum sentences not apply?

Answer 11

Prescribed minimum sentences do not apply to accused persons under the age of 18 years when the offence was committed.

Question 12

Why should presiding officers not impose grossly disproportionate sentences?

Answer 12

In giving expression to the sentencing ‘triad’ as set out in Zinn it is always desirable that presiding officers do not impose grossly disproportionate sentences.

To do so would be in contravention of the general principles of sentencing and s35(3)(n) or s12(1)(e) of the Constitution.

Question 13

What are the different forms of punishment that may be imposed?

Answer 13

​Forms of punishment that may be imposed are:

​1) ​Imprisonment;
​2​) Committal to treatment centre;
​3)​ A fine;
​4)​ Correctional supervision;
​5)​ Suspension of a sentence on various conditions;
​6​) Conditional or unconditional postponement of sentence; and
​7) ​A caution and discharge
(See Joubert 325).

Question 14

How are the lower courts entitled to impose imprisonment?

Answer 14

Lower and higher courts are entitled to impose imprisonment as a sentence limited only by the court’s jurisdiction.

• District magistrates’ courts are limited to 3 years;
• Regional courts to 15 years.

Question 15

What is the absolute minimum sentence that can be handed down?

Answer 15

Section 284 limits the minimum sentence to nothing less than 4 days, alternatively until the rising of the court (Joubert 326).

Question 16

What are mitigating factors that can be taken into account in terms of sentences in the GLAA?

Answer 16

Imprisonment in terms of the GLAA may be mitigated by the factor that the accused is a juvenile or where first offenders are seen as offenders that should be given a second chance in society – depending on the seriousness of the offence. (Joubert 326).

Question 17

How are HC’s entitled to impose imprisonment?

Answer 17

The HC may impose any length of sentence, however, attention should also be paid to the provision of statutory sentence requirements.

• In terms of the Drugs and Drug Trafficking Act of 1992, even a regional court magistrate may impose a sentence of 25 years imprisonment in the absence of substantial and compelling reasons. (Joubert 326).

Question 18

What is a ‘non-parole’ period of sentence?

Answer 18

S276B of the CPA enables the court to impose a ‘non-parole’ period of sentence meaning that the accused will not be entitled to apply for parole and the Department of Correctional Services is not permitted to place the accused on parole.

Question 19

What sentences re subject to the non-parole period of imprisonment?

Answer 19

Only sentences of two years or longer (per charge) are subject to the non-parole period of imprisonment.

In terms of the non-parole period, the accused will have to serve at least two thirds of the sentence before qualifying for parole (Joubert 327).

Question 20

What does life imprisonment entail?

Answer 20

The GLAA effectively incorporated into s276 of the CPA provision for life imprisonment.

It is a sentence that only the High Court may impose save instances where it is imposed by the Regional Courts in terms of minimum prescribed sentences.

Question 21

How long is life imprisonment?

Answer 21

Life imprisonment is a non-determinable sentence on account of the fact that it is unknown when the offender will be a candidate for parole recommendation in terms of the Correctional Service Act 111 of 1998 (Joubert 328).

Question 22

What does s274 of the CPA state?

Answer 22

S274 of the CPA refers to Evidence on Sentence:

(1) A court may before, passing sentence, receive such evidence as it thinks will help in informing itself what the proper sentence will be.
(2) The accused may address the court on any evidence received under subsection (1), as well as on the matter of the sentence, and thereafter the prosecution may likewise address the court.

Question 23

In terms of s274 of the CPA, what position must the court be in, in order to decide on an appropriate sentence?

Answer 23

s274(1) underscores the fact that the court needs to be in an optimally informed position in order to decide on an appropriate sentence.

The more information at the courts disposal, the more it may contribute to an informed decision on sentence.

Question 24

What does evidence on sentence entail in s274?

Answer 24

Reference to the term ‘evidence’ is not used in the ordinary sense as employed during the actual trial as to the merits of whether or not the accused committed the offence.

However, each case will be assessed upon its own merits and the court would be loath to allow something into ‘evidence’ where the information has been improperly obtained or the other side has not received a fair opportunity of considering same.

Question 25

How are previous convictions proven in sentencing?

Answer 25

Previous convictions are usually proved by way of a document known as an SAP69 which in terms of s 272 serves as prima facie proof of previous convictions.

Question 26

What is the accused required to do when previous convictions are proven?

Answer 26

The accused or her legal representative must be asked whether they admit the previous convictions.

Question 27

When do previous convictions fall away?

Answer 27

S271A provides that after a period of 10 years certain previous convictions fall away, if the convictions are:

1) In respect of less serious crimes (where more than 6 months imprisonment without the option of a fine may not be imposed); and
2) Any offence for which the passing of sentence was postponed or for which the accused was merely cautioned and discharged.

Question 28

Apart from s271A, when may previous convictions be expunged?

Answer 28

Previous convictions can also be expunged in respect of offences relating to former apartheid legislation or offences based on race or other legislation now considered unconstitutional.

Question 29

What is mitigating evidence?

Answer 29

Evidence in mitigation is presented by or on behalf of the accused as factors that contribute to a less serious or more lenient sentence

Question 30

How is mitigating evidence submitted in court?

Answer 30

Once more, the term ‘evidence’ is used loosely in that in most instances evidence in mitigation is presented to the court by way of submissions by the accused himself or the accused’s representative.

The accused has the right to be sworn in and give evidence under oath in mitigation, however, she will thereby also expose herself to being cross-examined by the prosecutor.

Question 31

What would constitute mitigating factors?

Answer 31

Mitigating factors include, but are not limited to, issues such as:

• 1) The age of the accused;
• 2) The fact that the crime of theft for example was committed out of financial necessity due to being jobless as opposed to avarice;
• 3) Whether the accused is the sole breadwinner;
• 4) The fact that the accused is a first time offender;
• 5) The fact that the accused co-operated fully with the police in the investigation;
• 6) The accused and complainant may have subsequently reconciled in an assault offence;
• 7) The accused pleading guilty thereby not wasting the court’s time and the state’s resources and also showing contrition (remorse) in respect of the offence; or
• 8) That the accused is suffering from a terminal illness.

Question 32

What are aggravating factors, and what would constitute aggravating factors?

Answer 32

Aggravating factors which go to showing why the court should impose a harsher sentence will be presented by the prosecution and these include, but are not limited to, issues such as:

• 1) Many previous convictions, especially if they are of the same nature and committed within a period of time close to the current offence, alternative which suggests that the accused is a repeat offender;
• 2) Where the offence was executed with premeditation or pure greed;
• 3) The accused showing no remorse; or
• 4) The commission of the offence involved a gross abuse of trust or abuse of position of power and authority.

Question 33

In what order does the sentencing stage take place?

Answer 33

The order in which the sentencing process takes place is as follows:

1​) The state informs the court whether or not there are previous convictions. If there are, they are proved by way of an SAP69 form, which the accused either admits or denies. If denied, the state would need to lead evidence to establish such previous convictions.

2​) The accused is permitted to address the court in mitigation of sentence (by way of either oral submission or evidence under oath). Witnesses may also be called by the accused in support of evidence in mitigation. Ultimately, the aim of this address is about the appropriate sentence the court should impose.

3​) The prosecution is then permitted to address the court in aggravation of sentence in the same manner and for the same purpose as stated in paragraph 5.2 above.

Question 34

In terms of s276, what are the basic sentences that may be imposed?

Answer 34

Section 276 of the CPA lists four basic sentences that may be imposed, which are:

​1) Imprisonment (varying in terms and forms);
​2) Fines;
​3) Committal to a treatment facility; and
​4) Correctional supervision.

Question 35

Why is imprisonment the most serious sentence that can be imposed?

Answer 35

This is the most serious of sentences that can be imposed given the fact that one is removed from society and subjected to a ‘prison’ sub-culture.

Moreover, upon your release the stigmatization of having served a term of imprisonment can have far-reaching socio-economic consequences.

Question 36

Which courts may impose imprisonment as a sentence?

Answer 36

All criminal courts may impose imprisonment. The duration of imprisonment is determined by their jurisdiction.

• District courts can impose a maximum of 3 years; and
• Regional courts are limited to 15 years (s 92 of the Magistrates’ Courts Act 32 of 1944), the latter being subject to the GLAA.
• High courts on the other hand may impose any term of imprisonment.

Question 37

At does the court take into consideration when deciding the length of imprisonment?

Answer 37

When sentencing an accused to prison, the court usually takes into consideration any period of time the accused may already have spent in prison awaiting finalization of the trial.

Question 38

When may an imprisoned person be considered for parole?

Answer 38

​Persons sentenced for a period longer than 1-year imprisonment may only be considered for parole after having served half their sentence.

Question 39

What sentence can imprisonment be imposed in conjunction with?

Answer 39

Imprisonment may be imposed in conjunction with a fine as well as correctional supervision.

Alternatively, a term of imprisonment can be partly or wholly suspended for a period that the court deems appropriate.

Question 40

In terms of what section of the CPA may the courts impose a non-parole period?

Answer 40

​In terms of s276B, the courts are empowered to determine a ‘non-parole’ period. In other words, the court establishes a period during which the offender may not be placed on parole.

Question 41

When may the courts declare an accused a dangerous habitual criminal?

Answer 41

• s286A provides for an accused to be declared a dangerous criminal; and
• s286 provides for an accused to be declared an habitual criminal.

Both declarations may only be made by a High court.

Question 42

When is a court allowed to declare an accused a dangerous criminal?

Answer 42

Declaring someone ‘dangerous’ may only be imposed where the court is satisfied that the person represents a danger to the physical or mental well-being of other persons and that the community should be protected against such a person (See S v T)

Question 43

When will a court declare an accused as a habitual criminal?

Answer 43

An habitual criminal is only so declared where the person repeatedly commits offences and the community should be protected against him.

Both requirements must be met and such a declaration cannot be made in respect of an offender under the age of 18 (at the time of the commission of the offence) or where the court is of the opinion that the offender deserves imprisonment for a period exceeding 15 years.

A rule of practice is that an order of habitual criminality will only take place where the accused has previously been warned of the likelihood of such an order should he re-offend.

Question 44

What is the consequence of a person being declared a habitual criminal?

Answer 44

Once declared an habitual criminal, the accused must serve at least 7 years imprisonment before being considered a candidate for parole.

Question 45

Which courts can impose fines as a sentence?

Answer 45

As with direct imprisonment, all the criminal courts may impose fines as a sentence but are limited in respect of quantum in terms of their jurisdiction.

• A District court is limited to R60 000; and
• A Regional court to R300 000 (in terms of s 92(1)(d) of the Magistrates’ Courts Act)

Question 46

How is the quantum and date of payment of a fine determined?

Answer 46

Assessment of the quantum will be made with reference to the seriousness of the offence and the means of the accused.

The court may also order that the fine be deferred or paid in installments. The period of time in respect of such an order may not exceed five years.

Question 47

At does correctional supervision entail?

Answer 47

Correctional supervision is referred to as ‘community based’ punishment in terms of the CPA.

It has always been considered a viable alternative to something harsher than a fine, yet less serious and without the consequences of subjecting an accused to imprisonment.

Question 48

In what forms may correctional supervision be imposed?

Answer 48

Correctional supervision can be imposed in the form of:

1) House arrest;
2) Monitoring; or
3) Community service.

Question 49

What can the court impose along with correctional supervision?

Answer 49

Irrespective of the form, the court can, in addition, impose conditions such as education, attending rehabilitation workshops, compensating the victim.

Question 50

How does the court determine whether an accused is a suitable candidate for correctional supervision?

Answer 50

The court will rely for guidance on the information and recommendations provided to it in the form of a correctional supervision report compiled by an officer of the Department of Correctional Services who would have had an opportunity of visiting the accused at his home, work and seeing the extent to which he is a suitable candidate for correctional supervision.

Question 51

When can the court impose that the accused financially compensate the victim of the offence?

Answer 51

The court may also order the accused to financially compensate the victim.

• The District court is limited to R100 000; and
• Regional court to R500 000.

Question 52

Why will courts impose a sentence of the accused to compensate the victim?

Answer 52

Such a sentence is handed down in terms of s300 and serves the purpose of taking into account the interests of the victim who can at least be addressed in monetary terms.

However, the court may only exercise its discretion to impose such a sentence when requested to do so by the victim.

Question 53

What is the prosecutor required to submit to the court in seeking compensation for the victim?

Answer 53

Accordingly, the prosecutor must be in a position to submit some form of proof, preferably an affidavit giving expression to such a request.

Compensation can only be given in respect of direct loss or damage. Given the civil nature of such an order, a term of imprisonment cannot be imposed as an alternative.