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A Guide to Sentencing in South Africa

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Online
ISBN/ISSN: 9780409061123
Published: March 01, 2010
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R1,256.14

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A Guide to Sentencing in South Africa is a comprehensive guide to criminal law and procedures relating to sentencing.

This definitive work covers the general principles governing sentencing and deals in detail with relevant legislation, supplying invaluable background information on past, current and proposed sentencing systems. Endorsed by several magistrates and Gerhard Wagenter from the Law Society, and prescribed as a set work in several universities, A Guide to Sentencing in South Africa comes highly recommended.

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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

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)