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A Guide to Sentencing in South Africa

An invaluable guide for criminal defence attorneys, advocates, magistrates, judges, prosecutors and students.

Publication Language: English
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ISBN/ISSN: 9780409122503

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An invaluable guide for criminal defence attorneys, advocates, magistrates, judges, prosecutors and students.

A Guide to Sentencing in South Africa is a definitive and comprehensive guide to criminal law and procedure relating to sentencing. The new edition deals with the substantial changes which have taken place since the second edition published:

The Child Justice Act 75 of 2008 has made substantial changes to the law on child justice. In addition to the new legislation, several judgments by the CC have highlighted certain legal aspects relating to children and child offenders.

There have been changes to minimum sentences, due in large part to the passing of the Criminal Law (Sentencing) Amendment Act 38 of 2007. The implications of relevant judgments by the SCA are also considered.

The correctional Services Act 111 of 1998 has been subjected to a number of amendments affecting sentencing in one way or another since 2007.

Other new or amended legislation has been included in the new edition, such as the South African Judicial Education Institute Act 14 of 2008, Prevention of and Treatment for Substance Abuse Act 70 of 2008, Prevention and Combating of Trafficking in Persons Act 7 of 2013.

The new edition also considers the development of South Africa human rights law which remains in its infancy.

Featured authors

Table of contents

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

The central position of the court

Onus of proof at sentencing

Providing information on sentence

Dealing with previous convictions

Addressing the court

Pre-sentence reports

Absence of judicial officer

Referral of case for sentence in regional court

Plea and sentence agreements

Victim impact statements

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

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 sentencing judgment (giving reasons for the sentence)

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

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 attached to correctional supervision

The wording of the sentence

Following imposition of correctional supervision

The procedure in court when correctional supervision fails

The future of correctional supervision

Sentencing child offenders

Introduction

The Child Justice Act

The special considerations in the case of child offenders

Pre-sentence procedures relevant to sentencing

Sentencing in child justice courts

The sentences available for child offenders

Committal to a treatment centre

Introduction

Amendment not reflected in the Criminal Procedure Act

Limitations

The nature of the sentence

The decision to impose

Duration of sentence

Use of the sentence

Suspension

Alternative options

Procedure

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

Forfeiture, suspension and other punitive measures

Introduction

Forfeiture

Suspension or cancellation of a licence

Other consequences of sentencing

Closing comment

Compensation as civil judgment

Introduction

Statutory provision

Discussion of a few issues

Concluding remarks

Post-sentence procedures

Introduction

Correction of a wrong sentence

Execution of sentence when the case record is sent on review

Execution of sentence when an appeal is noted

Antedating the sentence