When a person is found guilty of committing a criminal offence (“offence”) by a court of law, s/he will be punished (“sentenced”). A sentence might require such a person to go to jail or to pay a fine, depending on the circumstances. Most people might even call for the proverbial key to be thrown away. In many cases, not everyone will agree with a sentence given by a court, however, there are guidelines that the Courts must follow when handing down a sentence. This article intends to shed some light on how sentencing works, the types of sentences that can be given and so on.
What is a sentence?
- A sentence is when a person (“accused”) is punished by the court for committing a criminal offence.
- There are no hard and fast rules that the court must apply when deciding on a sentence for the accused, it will depend on the circumstances of the offence.
How does sentencing work?
- After an accused is found guilty, the accused, or his/her legal representative, is allowed to call witnesses and/or address the court on any circumstances that may lessen the sentence.
- The State will then be able to call witnesses and/or address the court on any circumstances that may increase the sentence.
- The courts are required to consider certain guiding principles known as the “Zinn triad,” named after the case of S v Zinn. The courts must use their discretion and consider the seriousness of the offence, the personal circumstances of the offender, and the interests of society. Examples of what the courts must consider are as follows:
- The seriousness of the offence, for example, a sentence for murder will be harsher than a sentence for theft.
- The criminal record of the accused, for example, an accused who has never committed an offence before will generally not get a sentence of imprisonment, unless the offence is of a serious nature, for example, murder.
- The personal circumstances of the accused, for example, whether the accused has a disability or is the only breadwinner in his/her family.
- The harm caused to the victim of the offence, for example, the degree of injuries the accused caused when assaulting the victim.
- The interests of society, for example, whether the accused is a threat to the general public and whether a long period of imprisonment will protect the community.
What different types of sentences can be given by the court?
- This is where the accused is required to go to jail for a certain period (“imprisonment”). The purpose of imprisonment is to punish the accused by removing him/her from society.
- The following different forms of imprisonment can be given:
- a fixed period, such as 11 years;
- a minimum period as prescribed by law, depending on the seriousness of the offence;
- periodical imprisonment, such as to only go to jail every weekend; or
- an undetermined period, such as life imprisonment.
- If an accused is sentenced for more than one offence and imprisonment is given as punishment for each offence, the court may order that the two periods run at the same time. For example, if the accused was sentenced to six months’ imprisonment for theft and one year’s imprisonment for assault, the accused will only have to be in jail for one year.
- An accused’s imprisonment may be suspended in full (s/he does not have to go to jail) or partly (s/he does not have to go to jail for the complete imprisonment) subject to certain conditions. However, s/he will still have a criminal record against his/her name.
- This is where the accused is required to pay an amount of money to the State. The purpose of a fine is to financially punish the accused and to allow the accused to continue with his/her normal life without going to jail.
- A sentence of imprisonment may be given together with a fine, which means that the accused will have to go to jail until s/he pays the fine.
- If an accused cannot pay the fine immediately, s/he may apply to court for the option to pay the fine in instalments.
- An accused’s fine may be suspended in full (s/he does not have to pay the fine) or partly (s/he does not have to pay the full amount) subject to certain conditions. However, s/he will still have a criminal record against his/her name.
- Correctional supervision:
- This is where the accused is being punished without being removed from society, but will be supervised by a probation officer.
- The following are examples of correctional supervision:
- house arrest (the accused will be restricted to his/her home and will need the permission of his/her probation officer to go to work, church and so on); and
- community service (the accused will be required to render services that would be in the interest of society, such as cleaning parks).
- A pre-sentence report will indicate whether the accused is a suitable candidate for correctional supervision.
- Correctional supervision may not be longer than three years. However, for sexual offences, it may not be longer than five years.
- Other types of sentences:
- If an accused committed a drug related offence, s/he may be required to spend a certain period of time in a rehabilitation centre instead of or in addition to going to jail or paying a fine.
- If an accused committed a violent offence, s/he may be declared unfit to possess a firearm, in addition to going to jail or paying a fine.
- The lightest sentence a court can give is to release the accused on warning. This means that the accused is free to go, however, s/he will still have a criminal record against his/her name.
May any court decide on any type of sentence?
- There are usually limits to the type of sentence a specific court may give.
- A District Court (lower part of the Magistrate’s Court) deals with less serious offences, such as theft and assault, and is limited to the following sentences:
- imprisonment, not longer than three years; or
- a fine, not more than R120 000.
- A Regional Court (higher part of the Magistrate’s Court) deals with more serious offences, such as rape and murder, and is limited to the following sentences:
- imprisonment, not longer than 15 years; or
- a fine, not more than R600 000.
- A High Court deals with serious offences, such as premeditated murder, and does not have any limits regarding imprisonment or the amount of a fine.
What happens if the accused is not satisfied with the sentence?
- An accused can appeal to a higher court (for example, from a Magistrate’s Court to a High Court) if s/he is of the opinion that an incorrect sentence was given.
- Such an application must be made within 14 days after the sentence was given.
- An accused may also apply that a case be reviewed by a higher court if incorrect procedures were followed that led to him/her not having a fair trial. Such an application must be made within reasonable time after the sentence was given.
- The higher court dealing with the appeal or review may set aside the sentence and refer it back to the lower court for a new sentence or to change the sentence. A change in the sentence by a higher court may lead to the sentence being made lesser or being increased.
What is a minimum sentence?
- A minimum sentence is where the law provides that a specific sentence must be given if a specific criminal offence is committed.
- For example, a minimum period of 15 years’ imprisonment must be given to a person who is guilty of murder for the first time.
- However, a court is allowed to give a lesser sentence than the minimum, if there are compelling circumstances justifying a lesser sentence, for example, the person having a disability.
What is a suspended sentence?
- A sentence can be suspended (placed on hold) completely or partly for a period not longer than five years.
- A suspended sentence may be subject to certain conditions, for example, that a person is not allowed to commit a similar criminal offence during the suspension of his/her sentence.
- Completely suspended: This means that if a person is sentenced to five years’ imprisonment that is suspended completely, s/he does not have to go to jail.
- Partly suspended: This means that if a person is sentenced to five years’ imprisonment of which three years are suspended, s/he only has to go to jail for the two years that are not suspended.
- A suspended sentence must NOT be seen as a “get out of jail free card”, in other words, if the accused breaks any of the conditions the suspended sentence is subject to, the full sentence will be put in force and the accused will then have to go to jail.
What is a pre-sentence report?
- A pre-sentence report is a report drafted by an expert, such as a correctional officer, social worker or psychiatrist.
- The purpose of a pre-sentence report is to guide the court in making a decision on what type of sentence to give a person, for example, whether a person can be placed under house arrest.
- The pre-sentence report sets out a person’s personal circumstances, such as the type of childhood s/he had, the possible reasons why s/he committed the criminal offence, his/her employment status and so on.