A Guide to Sentencing in South Africa

Introduction
The guide to sentencing
Sentencing: the neglected phase of a criminal trial
Description of terms
An academic view of the law of sentencing
Sources of sentencing
Important role players
Penalty clauses
Introduction
The interpretation of penalty clauses
The provisions of section 276
Penalty clauses for statutory offences
Remaining provisions of the Criminal Procedure Act
The maximum sentence
The effect of the penalty clause or the extent of punishment
Summary
Minimum and mandatory sentences
Mandatory sentences
Minimum sentences
Minimum sentences under the Criminal Law Amendment Act, 1997
Pre-sentence procedures
Introduction
A brief overview of the procedures after conviction
Dealing with previous convictions
Presenting evidence on sentence
Addressing the court
Pre-sentence reports
Absence of judicial officer
Referral of case for sentence in regional court
Giving reasons for sentence
Plea and sentence agreements
The discretion with regard to sentence
Introduction
Basic principles relating to the sentence discretion
Consistency in sentencing
The application of the sentence discretion in our law
Methods of limiting the sentence discretion
The sentence discretion: a summary
The general principles of sentencing
Introduction
The general principles through the cases
Finding an appropriate sentence
The demands of the time
Balance
Mercy
The triad: the three basic elements
The "purposes" of punishment
The theories of punishment
Restorative justice
Conclusion: the current core of sentencing
Sentencing more than one crime at a time
Introduction
Conviction of more than one offence
Sentencing when other sentences are being served or are still in effect
Multiple crimes sharing aggravating features
The order in which multiple sentences should normally be served
Mitigating and aggravating factors
Introduction
Factors versus circumstances
Balancing of mitigating and aggravating factors
Factors only at the time of sentencing
Evidence
Factors which aggravate sentence
Factors which mitigate the sentence
Imprisonment
Introduction
Imprisonment in general
The various forms of imprisonment
Determinate imprisonment
Life imprisonment
Habitual criminals
Declaration as dangerous offender
Periodical imprisonment
Section 276(1)(i) imprisonment
Backdating of imprisonment
The aftermath of the imposition of imprisonment
Constitutional issues
Fines
Introduction
The purpose of the fine
Limits to imposition
The decision to impose a fine
Procedure
Execution
Payment of admission of guilt
Correctional supervision
Introduction
A brief historical overview
The role of the judiciary in the development of correctional supervision
Correctional supervision defined
The various forms of correctional supervision
Further aspects of the nature of correctional supervision
Distinguishing offenders
Correctional supervision as substantive sentence
The conditions
The wording of the sentence
Serving a sentencing of correctional supervision
The procedure in court when correctional supervision fails
The future of correctional supervision
Sentencing young offenders
Introduction
Defining a young offender
The special considerations in the case of young offenders
The importance of establishing the exact age of the young offender
Special provisions applying to young offenders only
Availability of standard sentences for young offenders
Committal to a treatment centre
Introduction
Limitations
The nature of the sentence
The decision to impose
Duration of sentence
Status of sentence
Suspension
Alternative options
Procedure
Failure of sentence
Suspension of sentence, and related matters
Introduction
Suspended sentences
Historical overview
Postponement of sentencing
Caution and discharge
General
Legislative provision
The crimes for which it may be imposed
Appropriate cases for imposition
The nature of a caution and discharge
The practice
The wording of the sentence
The history of caution and discharge
Forfeiture, suspension and other punitive measures
Introduction
Forfeiture
Suspension or cancellation of a licence
Other consequences of sentencing
A better view of forfeiture and similar measures?
Compensation as civil judgment
Introduction
Statutory provision
Discussion of a few issues
Concluding remarks
Appeal and review
Introduction
The available remedies
The powers of the court of review or appeal
Post-sentence procedures
Introduction
Correction of sentence
Procedure when the case record has to go on automatic review
Procedure when an appeal is noted against sentence
Antedating the sentence
The death penalty
Introduction
Dealing with death penalty cases after Makwanyane
Why the death penalty was found to be unconstitutional
An historical view of the death penalty in South Africa
The death penalty in other countries
Selected legislation
Adjustment of Fines Act 101 of 1991
Child Care Act 74 of 1983
Children's Act 38 of 2005
Correctional Services Act 8 of 1959
Correctional Services Act 111 of 1998
Criminal Law Amendment Act 105 of 1997
Criminal Procedure Act 51 of 1977
Historical development of sentencing
Introduction
Biblical influence
Roman law
Germanic law
English law
The law in South Africa
Conclusion
Case law relevant to the sentencing of selected offences
Introduction
Arms and ammunition offences
Arson
Assault
Children (offences against)
Contempt of court
Culpable homicide (assault)
Culpable homicide (driving)
Drugs (dealing)
Drugs (possession)
Drunken driving (or too much alcohol in the blood)
Economic offences
Housebreaking
Kidnapping
Obstructing justice (or a police official)
Precious metals and minerals
Public violence
Rape
Robbery
Sex offences (other than rape)
Statutory offences (diverse)