EXAMINING SECTION 51 (1) OF THE CRIMINAL LAW AMENDMENT ACT 105 OF 1997 AND ITS APPLICATION IN THE SENTENCING OF PERPETRATORS OF CHILD RAPE IN SOUTH AFRICA
Justice Davis also listed the factors, which a court should take into account in terms of the Minnesota Guidelines Grid. These include the following.
- Whether the victim was the aggressor in the incident.
- Whether the offender played a minor or passive role in the crime or participated under duress.
- Whether the offender was physically or mentally impaired and lacked substantial capacity for judgement at the time that the crime was committed.
The above constitute non-exclusive factors that may be used to depart from the range of presumed sentences. According to the Sentencing Commission of the Minnesota State, the above factors are intended to describe specific situations that prevail in a small number of cases. It excludes factors that are general in nature and are applicable to a large number of cases, such as the age of the offender, his criminal history score and so on.
The above factors do not constitute an exclusive or exhaustive list that courts can refer to, to depart from the range of presumed sentences.
The learned judge was of the opinion that these guidelines are more flexible as opposed to the stricter view exhibited by Justice Stegman in the case of S v Mofokeng and Another where the learned judge had stated:
'The absence of previous convictions, the comparative youthfulness of the prisoners, the unfortunate factors in their backgrounds, the probable effect upon them of the liquor they had taken, the absence of dangerous weapons, and the fact that the complainant had not suffered serious injury, are all factors which a court sentencing a convicted person in the ordinary course would weigh up as substantial factors relevant to the assessment of a just sentence, and as tending to mitigate the severity of the punishment to be imposed.'
It follows that when the court is sentencing an offender, there are specific elements such as those mentioned above, which it uses as weighing factors to calculate an appropriate and just sentence. The more heinous the crime and dangerous the perpetrator, the harsher the sentence should be. Alternatively if there were mitigating circumstances such as those mentioned above, the courts must consider these factors and impose a lenient sentence upon the accused, thereby departing from the prescribed sentence.
Justice Stegman found that whilst the above mentioned factors are 'substantial', these are matters which Parliament can be taken to have had in mind as the everyday circumstances which would ordinarily be found in most of the crimes committed in terms of Part 1 of Schedule 2. The learned judge further stated that these circumstances cannot be viewed as 'compelling' the conclusion that a lesser sentence other than that prescribed by Parliament should substitute the prescribed sentence. However there must be no exceptional factors to explain the accused's conduct '(which evidently sprang from nothing other than their own wicked desire to slake their lust regardless of the cost to the victim)'. This includes the absence of other mitigating factors, other than those already mentioned. Justice Stegman also found that 'substantial and compelling' circumstances must be factors, which are unusual and exceptional, which Parliament did not predict or consider when it prescribed standard penalties for crimes committed in circumstances as provided for in Schedule 2.
Justice Davis reinforced Justice Stegman's analogy in S v Jansen, by stating that:
‘…it is difficult to conceive of factors which fall outside of those generally taken into account by the courts in the ordinary process of sentencing. If so, then these would amount to ‘exceptional factors'; whereas the words employed by the Legislature are ‘substantial and compelling’.
This indicates that it is difficult for courts to predict those factors that are extra-ordinary in nature. These extra-ordinary factors must therefore be construed as
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