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19. Sentence (2. Concepts of sentencing (i) Sentence (DEF: Any measure…
19. Sentence
1. Introduction
Determining a sentence = hardest role of j
multiple facts & factors
j must make value judgement
determine weight of each fact & factor
personality of sentencing official could play major role
retributive or rehab angle?
2. Concepts of sentencing
i) Sentence
DEF
: Any measure applied by the c to convicted person, finalizing the case
conditions of suspended sentences are
not
sentences
cautions = sentences
ii) Punishment
DEF
: Something unpleasant for the convict, limited to measures imposed by c
Some sentences don't include punishment (eg suspended sentences)
Some punishments aren't sentences (eg
conditions
)
iii) Offender / criminal / accused
descriptions of the accused / convicted
accused = not yet found guilty
criminal / offender = guilty
iv) Offence / crime
action / negligence causing offender to be tried & sentences in c
= imposition of sentence by c on a specific order
3. Sentence discretion
c = wide power to impose sentences & must use discretion
discretion in sentencing must be exercised reasonably & judicially according to guidelines
advantage
adaptation for different cases
disadvantage
more than 1 j = multiple sentences
conflict w/ S9 of Con.
equality
of all before the law - unjust
inconsistence sentences not in line w/ justice & fairness
4. General principles of sentencing
Punishment needs to fit criminal & crime & be fair to society & should incl. measure of mercy
Should consider aims of punishment
not static & shouldn't be oversimplified
personalization - ensure sentence fits crime, criminal & society
5. Penalty clauses
Most statutory offences incl a penalty clause
Imprisonment / fine may not be imposed if penalty clause doesn't specify
if PC allows fine
or
prison -
only use 1
Adjustment of Fines Act
All fine clauses must be read w/ act
Act replaces fine penalty clauses
Req. calculation of max fine imposed to be based on max prison sentence for particular crime
ratio between fine & imprisonment is determined by MC
fines for not specifying max amount
Currently R400 000 for 12mo sentence
6. Minimum sentences