By Kotie Geldenhuys in cooperation with Brig Dirk Lambrechts
There are times when we celebrate the sentences handed down to offenders for the crimes they committed. Then there are times when we are outraged by the sentences. Our feelings are typically dependent on our interpretation of whether the punishment fits the crime - if not, we are convinced that justice has failed us. However, determining the period of incarceration is not as clear cut as many people might think, as the courts have to take a variety of factors into consideration before handing down sentence. Sentencing is considered the primary prerogative of trial courts and they enjoy wide discretion to determine the type and severity of a sentence on a case-by-case basis.
In doing so, they follow judge-made, broad sentencing principles known as the “triad of Zinn”. The Supreme Court of Appeal (SCA) in S v Zinn 1969 (2) SA 537 (A) on p540G held that “what has to be considered is the triad consisting of the crime, the offender and the interests of society”. This dictum became trite law. Yet, in order for the court to direct itself properly, the different elements of the triad need to be in balance (also refer to S v Isaacs 2002 (1) SACR 176 (CPD) as published in Pollex in Servamus: April 2002). Once the opposite is found, the sentence will be overturned on appeal (Van der Merwe, 2015). Snyman (2008) informs us that the theories of punishment are retributive; preventive; deterring; and reformative.
The triad of Zinn requires that presiding officers (judges and magistrates) need to consider three things when making sentencing determinations, namely the gravity or seriousness of the offence, the circumstances of the offender as well as public interest. These factors must be considered equally and one should not be relied upon more heavily than the others (Goitom, 2014). Three of these factors will be discussed individually in this article.
The gravity or seriousness of the offence
In deciding on the sentence, the court will look at the severity of the offence and its impact and explore various aggravating and mitigating factors. If violent crimes have been committed, the court will consider factors including the extent of the violence, the types of weapons used, the brutality of the attack and the extent to which the victims were harmed. In the case of Henri van Breda (refer to the crime series published in Servamus: November 2018 to January 2019), the accused was found guilty of a very violent crime as he had attacked and murdered three of his four family members with an axe, which the court considered a very cruel way to kill. It also did it count in Van Breda's favour that he was found guilty of planning the attack and faking a crime scene to avoid his own arrest (Grobler, 2018).
The offender’s circumstances
A court needs to consider an accused’s personal circumstances during sentencing. Goitom (2014) explains that the sentence could be aggravated by a number of factors, including whether the person is a repeat offender; had a morally unacceptable motive to commit the crime such as greed; lacks remorse; committed the offence by abusing a position of trust; or is a professional criminal. In the category of factors in mitigation of sentence, the most effective one is diminished capacity, in addition to factors such as age, employment status, health status and being a first offender, which may also contribute to a reduced sentence. Other factors that may extenuate a sentence include having dependents, gainful employment, positive motive (for example a mercy killing), diminished intelligence, lack of planning, having remorse, a guilty plea and a belief in witchcraft and/or religion.
In the Van Breda case referred to above, the accused had no previous convictions or arrests and he was only 20 years old at the time when he committed the offences. He also suffered from depression, anxiety and myoclonic epilepsy. A social worker found that he was very emotional about the deaths of his parents and brother, but according to the State, he did not show any sympathy towards his sister who had lost her entire family. His legal representatives argued that he could not show remorse for something he maintains he didn't do (Grobler, 2018).
The courts reflect on the type of sentence which will best serve the community, whether the sentence needs to stop a criminal from committing more crimes, whether rehabilitation is possible and whether the sentence will serve as a deterrent to others. Despite the public's strong feelings and opinions, factors relating to the danger posed by the accused and whether a long period of incarceration will protect the community, or that the offence is so severe that an increased punishment is necessary to serve as a warning to others, are important to consider (Grobler, 2018). The case of Victor Kwenda (S v [Victor] Kwenda (682/2018)  ZASCA 133 (17 September 2019) (SCA)) is one of those that served as a warning to others. He committed fraud totalling R4.9 million over a period of time and was sentenced to 20 years’ incarceration after he had pleaded guilty and shown remorse for his actions. The Supreme Court of Appeal (SCA) however rejected his remorse and ruled that the sentence had to serve as a warning to others involved in or potentially engaging in fraud. The reason for this judgment was further motivated by the fact that Kwenda was employed in the education and training sector and that the funds he had stolen were intended for beneficiaries of the organisation for which he worked. Paragraph  of the SCA judgment, inter alia, states that: “... about 200 youths from disadvantaged backgrounds were robbed of education and apprenticeship opportunities which would have enabled them to uplift themselves in society.” In this same paragraph  the court further referred to fraud as “a cancer that was crippling our country”. However, when sentencing is considered, it is important to also take the economic and social cost of a long sentence of incarceration into consideration (see more below).