In S v B is an important case in South African criminal law, often cited for its findings as to the considerations to be taken into account in sentencing.
The appellant was convicted in a regional court of attempted rape. He committed the crime barely a month after being convicted of crimen iniuria, assault and malicious injury to property, for which offences he had received a suspended sentence. When he committed the attempted rape, the appellant was twenty-three years and the complainant sixteen years of age.
In sentencing the appellant, the magistrate took into account the prevalence of rape in the area:
Hardly a day goes by without the local courts dealing with one or more of these cases. And, as the prosecutor has indicated, they seem to be on the increase. It seems that the short terms of imprisonment which have been imposed in the past have not acted as sufficient deterrent. Parliament has set its face against this type of offence and has provided for the death penalty to be imposed in appropriate cases.
He found that, when the appellant committed the offence, he knew exactly what he was doing, but accepted in his favour that at the time he had been intoxicated to some extent. The magistrate took into account the circumstances which prevailed when the appellant committed the offence, addressing the appellant thus:
You had the complainant at your mercy, pulled her around by the hair, assaulted her, humiliated her and attempted to rape her. You are a big strong person and she had no chance against you. Fortunately you did not succeed in deflowering her. Had that happened the court would have taken a much more serious view of this incident. But it was purely fortuitous that she was not deflowered. Had you not ejaculated prematurely she might not have been a virgin today.
In rape cases, the magistrate pointed out, it was not only the victim who had an interest in the outcome of the case. If the sentence were too lenient, interested and affected persons might take the law in their own hands. He referred to R v Karg,[1] where Schreiner JA said,
It is not wrong that natural indignation of interested persons and of the community at large should receive some recognition in the sentence that the Courts impose, and it is not irrelevant to bear in mind that, if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands.[2]
The magistrate had regard, finally, to the criminal record of the appellant. He expressed the view that the court had a duty towards women, and was obliged to protect them against men like the appellant. The only way that could be done was by imposing an appropriate sentence, he said, and held that, under all the circumstances, a suspended sentence, as suggested by counsel for the appellant, would be inappropriate. The magistrate dealt with the appellant's previous record as follows:
You are by no means a first offender. Your first brush with the law was on 27 April 1976, when you received five cuts following a conviction for theft. Since then you have been convicted of various other offences and your history shows a singular lack of discipline. You have become a liability to society. You committed the present offence whilst the suspended sentence, dated 20 February 1979, was hanging over your head. Your counsel has explained the nature of the crimen injuria offence and the court will accept what he said, namely that there was no physical involvement in that incident and that what had happened is that you had sworn at a woman which led to that conviction and sentence.
The aims which the magistrate had therefore in mind were, in the first instance, deterrence of the appellant himself and, in view of the prevalence of rape and, indeed, an increase of rape cases heard by the courts, deterrence also of others. In view of the offence of rape being one of those offences which evokes public indignation, and in view of the character and personality of the appellant, as revealed by his criminal record, the magistrate added a fair measure of retribution. He obviously decided against a suspended sentence because the suspended sentence which had previously been imposed upon the appellant had not had any deterrent or corrective effect upon him. It had hardly been imposed when the appellant committed the present offence of attempted rape.
The magistrate accordingly sentenced him to five years' imprisonment.
Argument
His appeal to a provincial division failed; he then appealed to the Appellate Division against the sentence imposed upon him.
It was submitted on behalf of the appellant
that the magistrate had misdirected himself in over-emphasizing the deterrent and retributive aspects of punishment in assessing an appropriate punishment;
that, regard being had to other sentences imposed in similar cases, the sentence in the present case was strikingly disparate; and
that the court had failed to take into account certain mitigating factors.
In support of his first submission, counsel referred the Appellate Division to the recent decision in S v Khumalo,[3] where, Nicholas JA, in the course of his majority judgment, said,
In the assessment of an appropriate sentence, regard must be had inter alia to the main purposes of punishment mentioned by Davis AJA in R v Swanepoel 1945 AD 444 at 455, namely deterrent, preventive, reformative and retributive (see S v Whitehead 1970 (4) SA 424 (A) at 436E-F; S v Rabie 1975 (4) SA 855 (A) at 862).
Deterrence has been described as the "essential", "all important", "paramount" and "universally admitted" object of punishment. See R v Swanepoel (supra at 455). The other objects are accessory.[4]
Nicholas JA also remarked that, in modern times, retribution was considered to be of lesser importance, and referred to the very dictum which the magistrate quoted from Karg, adding, however, the following sentence which was omitted by the magistrate: "Naturally, righteous anger should not becloud judgment."
Nicholas JA referred as well to the following dictum by Holmes JA in S v Rabie:[5]
The main purposes of punishment are deterrent, preventive, reformative and retributive: see R v Swanepoel 1945 AD 444 at 455. As pointed out in Gordon Criminal Law of Scotland (1967) at 50:
"The retributive theory finds the justification for punishment in a past act, a wrong which requires punishment or expiation ... The other theories, reformative, preventive and deterrent, all find their justification in the future, in the good that will be produced as a result of the punishment."
It is therefore not surprising that in R v Karg 1961 (1) SA 231 (A) at 236A Schreiner JA observed that, while the deterrent effect of punishment has remained as important as ever,
"the retributive aspect has tended to yield ground to the aspect of prevention and correction".[6]
Judgment
Viljoen JA subscribed fully to these views. Whereas formerly, "particularly in ancient and medieval times and even in the more enlightened period thereafter," retribution was emphasised, "the outlook has gradually changed." In his De Jure Belli ac Pacis, Grotius wrote, "nemo prudens pun it quia peccatum sed ne peccatur."[7] While, in Viljoen JA's estimation, this was true, retribution was, as Schreiner JA had said, by no means absent from the modern approach. What importance the component of retribution should be accorded in a sentence "depends," wrote Viljoen JA, "upon the circumstances."
In Karg, for instance, the Appellate Division considered whether mere negligence as opposed to recklessness, or some high degree of recklessness, merited a considerable degree of retribution in the sentence. As was made clear in the same case, an offence which evoked indignation from the public would attract a greater share of the component of retribution than an offence which did not. Further factors to be taken into account in this respect were the seriousness of the offence and the disposition and attitude of the offender, particularly to his victim.
In the present case, one of the ingredients of the offence, Viljoen JA held, was intent, not negligence. The complainant, a girl of sixteen years, was seriously manhandled by the appellant, who showed no remorse afterwards. The magistrate had correctly taken into account his previous criminal history. This showed a singular lack of discipline, said the magistrate, who correctly described him as a liability to society. In Viljoen JA's view, the magistrate had not overemphasised the retributive aspect.
Viljoen JA also believed that the magistrate had correctly applied the deterrent aims, as far as the appellant himself as well as others were concerned. Considering that his previous sentences had had no deterrent effect upon him, as was illustrated by the commission of the present offence on March 26, 1979, barely a month after a portion of each of his sentences imposed on February 20, 1979,[8] was suspended for three years on various conditions, the magistrate had not erred as far as deterrence of himself was concerned.
The prevalence of the offence and the increase thereof was no doubt taken into account by the magistrate, Viljoen JA believed, in the context of his aim to deter not only the appellant himself, but also others. For that reason, it would not serve any purpose, as the appellant's counsel had invited the Appellate Division to do, to compare other sentences imposed for the same offence. Of course, a comparison of sentences meted out in other cases might serve as a guide to ensure some proportionality in sentences, but it was only a rough guide, according to Viljoen JA, because there were so many factors to be taken into account—they could be usefully collected under the term "individualisation"—that no tariff or standard sentence could be maintained.
One such factor was the personal circumstances of the offender. In the present case it was in fact submitted that the magistrate had not sufficiently taken into account the appellant's personal circumstances. From the record, Viljoen JA found very little as to the appellant's employment, his future prospects of advancement, the effect which a prison sentence was likely to have upon his life, and other such circumstances. Since he was represented at the trial, it might be assumed that, if any such personal circumstances, likely to affect the sentence, did in fact exist, they would have been brought to the notice of the magistrate.
Viljoen JA conceded that the sentence was a heavy one, but found that the magistrate had furnished good reasons for imposing it. As, furthermore, he had not erred in any respect, and as the sentence was not so severe as to lead to the conclusion that no reasonable court would have imposed it, the appeal was duly dismissed.
Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority—in contexts ranging from child discipline to criminal law—as a response and deterrent to a particular action or behavior that is deemed undesirable or unacceptable. It is, however, possible to distinguish between various different understandings of what punishment is.
Retributive justice is a legal punishment that requires the offender to receive a punishment for a crime proportional and similar to its offense.
In law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences for multiple crimes may be a concurrent sentence, where sentences of imprisonment are all served together at the same time, or a consecutive sentence, in which the period of imprisonment is the sum of all sentences served one after the other. Additional sentences include intermediate, which allows an inmate to be free for about 8 hours a day for work purposes; determinate, which is fixed on a number of days, months, or years; and indeterminate or bifurcated, which mandates the minimum period be served in an institutional setting such as a prison followed by street time period of parole, supervised release or probation until the total sentence is completed.
Capital punishment in India is a legal penalty for some crimes under the country's main substantive penal legislation, the Indian Penal Code, as well as other laws. Executions are carried out by hanging as the primary method of execution as given under Section 354(5) of the Criminal Code of Procedure, 1973 is "Hanging by the neck until dead", and is awarded only in the 'rarest of cases'.
In England and Wales, a magistrates' court is a lower court which hears matters relating to summary offences and some triable either-way matters. Some civil law issues are also decided here, notably family proceedings. In 2010, there were 320 magistrates' courts in England and Wales; by 2020, a decade later, 164 of those had closed. The jurisdiction of magistrates' courts and rules governing them are set out in the Magistrates' Courts Act 1980.
A discharge is a type of sentence imposed by a court whereby no punishment is imposed.
Coker v. Georgia, 433 U.S. 584 (1977), held that the death penalty for rape of an adult woman was grossly disproportionate and excessive punishment, and therefore unconstitutional under the Eighth Amendment to the U.S. Constitution. A few states continued to have child rape statutes that authorized the death penalty. In Kennedy v. Louisiana (2008), the court expanded Coker, ruling that the death penalty is unconstitutional in all cases that do not involve homicide or crimes against the State.
Deterrence in relation to criminal offending is the idea or theory that the threat of punishment will deter people from committing crime and reduce the probability and/or level of offending in society. It is one of five objectives that punishment is thought to achieve; the other four objectives are denunciation, incapacitation, retribution and rehabilitation.
Canadian criminal law is governed by the Criminal Code, which includes the principles and powers in relation to criminal sentencing in Canada.
Capital punishment is not a legal punishment in the Independent State of Papua New Guinea.
Sentencing in England and Wales refers to a bench of magistrates or district judge in a magistrate's court or a judge in the Crown Court passing sentence on a person found guilty of a criminal offence. In deciding the sentence, the court will take into account a number of factors: the type of offence and how serious it is, the timing of any plea of guilty, the defendant's character and antecedents, including their criminal record and the defendant's personal circumstances such as their financial circumstances in the case of a fine being imposed.
South African criminal law is the body of national law relating to crime in South Africa. In the definition of Van der Walt et al., a crime is "conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted." Crime involves the infliction of harm against society. The function or object of criminal law is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.
S v Shilubane, an important case in South African criminal law, was heard and decided in the Transvaal Provincial Division by Shongwe J and Bosielo J on June 20, 2005. The case is significant primarily for its treatment of questions of punishment, advocating the consideration of restorative justice as an alternative to direct imprisonment, urging that presiding officers be innovative and proactive in opting for such alternatives, and recommending that these alternatives be humane and balanced.
S v Zinn, an important case in South African criminal law, was heard in the Appellate Division by Steyn CJ, Ogilvie Thompson JA and Rumpff JA on March 21, 1969, with judgment handed down on March 31. H. Snitcher QC appeared for the appellant; for the state, AJ Lategan. The case is most often cited for its provision of a basic triad of sentencing considerations: the crime, the criminal and the interests of society.
S v Salzwedel and Others, an important case in South African criminal law and criminal procedure, was heard in the Supreme Court of Appeal (SCA) on 4 November 1999, with judgment handed down on 29 November. The judges were Mahomed CJ, Smalberger JA, Olivier JA, Melunsky AJA and Mpati AJA. GG Turner appeared for the appellant ; P. Myburgh, instructed by the Legal Aid Board, for the respondents, whose heads of argument were drawn up by JR Koekemoer.
Criminal procedure in South Africa refers to the adjudication process of that country's criminal law. It forms part of procedural or adjectival law, and describes the means by which its substantive counterpart, South African criminal law, is applied. It has its basis mainly in English law.
S v Rabie is an important case in South African law, heard in the Appellate Division on 12 September 1975, with judgment handed down on 23 September. The presiding officers were Holmes JA, Corbett JA and Kotzé AJA. The case is significant primarily in the area of sentencing, with its determination that the punishment should
S v Vika, an important case in South African criminal law, was heard on May 12, 2010. MM Xozwa, instructed by the Justice Centre, Grahamstown, appeared for the appellant; H. Obermeyer appeared for the State. The case was an appeal against sentence imposed in a regional court.
Dinsdale v R is an Australian legal case decided in the High Court.
Roffey v The State of Western Australia is a Court of Appeal decision of the Supreme Court of Western Australia in the field of criminal law.
References
Books
CR Snyman Criminal Law Casebook 5th impression (2012).
Cases
S v B 1985 (2) [South African Law Reports|SA] 120 (A)
↑ Crimen injuria, assault on a white male and a police officer, and malicious injury to property.
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