The passing of sentences on criminal offenders is a common cause of public outcry. Many people do not understand how our courts determine an appropriate sentence in particular cases and especially why sentences can vary greatly. This article sheds some light on the relevant legal principles applicable to sentencing criminal offenders.

In South Africa, sentencing is considered the primary prerogative of the trial courts. They enjoy a very wide discretion to determine the type and severity of a sentence to be handed down to a person convicted of a crime on a case-by-case basis.

South Africa has what is known as an uncodified legal system and thus draws from various sources of law. One such source is previous decisions of other court and the doctrine of stare decisis requires courts follow previous court decisions issued on cases with “materially similar facts.” 

However, in our criminal law system specific to sentencing, it is difficult to apply this doctrine. In S v Frazer the Supreme Court of Appeal stated it was an ‘idle exercise’ to try and match the facts of one case with those of another and in R v Mapumulo the Appellate Division held that the infliction of punishment is ‘pre-eminently a matter for the discretion of the trial Court’. 

Generally, in exercising their discretion during sentencing, trial courts are required to consider the broad guiding principles known as the “triad of Zinn,” named after another Appellate Division decision in the 1969 case of S v Zinn. 

In Zinn it was held that in imposing a sentence, “what has to be considered is the triad consisting of the crime, the offender and the interests of society.” This gave rise to the modern practice of considering three legs supporting an appropriate sentence: the seriousness of the offence, the personal circumstances of the offender, and the interests of the public.  

It is how these principles are applied by our different courts that leads to the apparent and often controversial “inconsistencies” between sentence outcomes for the same offence. 

Once an accused person has been found guilty, whether it is after a trial or having pleaded guilty from the outset, a second trial on the appropriate sentence is conducted. Both the State and the accused may call witnesses to give evidence in this trial on sentence.
Generally the State would present evidence in aggravation, i.e. why a harsh sentence should be imposed, whereas the defence attorney would present evidence in mitigation, arguing for a lighter sentence.

Aggravating factors or circumstances would include: if the person is a repeat offender; they had a morally unacceptable motive; they lack remorse; they committed the offence by abusing a position of trust; the severity of the crime; the degree and extent of the violence used; the nature and character of the victim and whether the victim was unarmed and helpless; the crime was planned and so on.

Mitigating factors would include the diminished capacity of the accused; his or her age (both very young and old age); if the accused is a first offender and in particular if the accused showed remorse.

The court also considers several extenuating factors such as bad health, having dependents, gainful employment, intoxication, a positive motive (for example, mercy killing) and a belief in witchcraft and religion.

The discretion of trial courts is limited by the Mandatory Minimum Sentences Regime (Act 105 of 1997) which applies to certain serious crimes such as robbery with aggravating circumstances, murder and rape (to name a few). This Act prescribes minimum sentences of 15, 20 or 25 years for a first, second and third offender respectively. 

The trial courts however have discretion to deviate from the prescribed minimum sentences, whenever “substantial or compelling circumstances exist”. 

As you can see, how a sentence is determined is a complex and nuanced process. 

It is vitally important for accused person to obtain the services of a specialised criminal defence attorney to argue their case as this will have a profound effect on the ultimate sentence that is handed down.