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25. WHAT IS THE PURPOSE OF SENTENCING AND WHAT ARE SOME OF THE FACTORS THAT THE COURT CONSIDERS WHEN IMPOSING SENTENCE?

It is quite clear that those convicted of crimes must be dealt with in such a way as to keep public order. There must always be a balance achieved between the interests of the criminal on the one hand, and the interests of the community on the other. The different purposes (or theories) of punishment include the following:

  • Retribution:

This is the oldest punishment theory. According to it, the commission of the crime disturbs the balance in the legal order of society and when the offender is punished, balance is restored.

  • Prevention:

The purpose of the Prevention Theory in punishment is to prevent crimes being committed. Examples of this theory are life imprisonment, declaration as a habitual criminal, declaration as a dangerous criminal, the deportation of alien citizens to their land of birth and the forfeiture of drivers' licences.

  • Deterrence:

According to this theory society is in general deterred by the threat of possible imprisonment. This theory rests on the viewpoint that people choose a trouble-free, rather than a troublesome life and weigh up the advantages and disadvantages associated with every course of action against one another before acting.

  • Reformation:

According to this theory the purpose of punishment is to reform the offender so that he may become a normal law-abiding citizen and once again take his place in society. Emphasis is placed on the person and his personal circumstances.

In deciding on an appropriate sentence, our courts make use of the so-called Zinn-triad of factors, which are weighed up against each other. These three factors will be discussed below.

  • The Personal Circumstances of the Accused

It has been said that the sentence must not only fit the crime, but also the criminal. It is always important to consider the accused’s age, education, previous convictions, domestic circumstances (including dependants) and employment. The fact that an accused shows remorse for his crime (like pleading guilty or co-operating with the police) is in most cases a strong mitigating factor.

Someone who, for example, is a young first offender, and is the sole breadwinner for a large family will likely receive a lesser sentence than a person who has many previous convictions and does not contribute to society.

  • The Nature of the Crime

It is elementary that the more serious the crime, the greater the sentence should be. The “seriousness” of a crime is judged by the outlook of the community. For this reason Parliament expressed its views by prescribing certain minimum sentences which should normally be imposed for certain serious crimes.

Factors like whether the accused was provoked, the absence of serious injuries to the victim, small value of stolen goods, or a good motive (like euthanasia) may serve to lessen the sentence imposed on accused.

Where the crime was committed against vulnerable persons such as women, children or the elderly, such a fact often acts as an aggravating circumstance. So too, where a crime was pre-meditated or particularly brutal.

  • The Interests of the Community

It is self apparent that the interests of the community should be protected by the imposition of appropriate sentences. The feelings and requirements of the community, the protection of society against the accused and other potential offenders must be considered, as well as the maintenance of peace and tranquillity in the land needs to be taken into account. 

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