The Punishment must fit the Crime: Also when the Offender has Previous Convictions?

JurisdictionSouth Africa
Published date16 August 2019
Date16 August 2019
Citation(2011) 22 Stell LR 188
Pages188-204
AuthorS S Terblanche
188
THE PUNISHMENT MUST FIT THE CRIME:
ALSO WHEN THE OFFENDER HAS PREVIOUS
CONVICTIONS?
SS Terblanche
BJuris LLD
Professor, Department of Criminal and Procedural Law, UNISA
1 Introduction
The inuence that previous convict ions should have on the determination
of an appropriate sente nce is a feature that highlights t he aws of the South
African sentenci ng system as well as, if not better t han, any other aspect
thereof. Most people appear to agre e instinctively that heavier pun ishment
is justied for an offender who repeatedly commits cr ime, especially when
the repeated cri me is of a similar kind.1 However, the extent of such increase
and the principles on which such incr ease should be based are murky, at best.
As a result there is no agre ement on the extent to which previous convictions
should increase the impos ed sentence. Courts follow vary ing practices and
long prison sentences are oft en imposed for what appears, at fac e value, to
be a petty offence.
In this contr ibution2 I will consider the cu rrent South Africa n practise and
the reasons that are offere d for increased sentences, a nd will follow that with
a discussion of a more appropriate theore tical framework. In conclusion a
submission is made contain ing a number of steps that should be taken in order
to improve the current sit uation.
2 The South African practice r egarding previous convictions
2 1 Introduction
The effect that previous conviction s have on the sentence in any given case
is largely determine d by the discretion of the sentencing court. Little exist s in
our law by way of legislative guidance. If anyth ing, the Crimin al Procedure
Act 51 of 1977 contains even less guida nce than its predecessor. Some of the
1 M Hough & JV Roberts “P ublic Knowledge and Public O pinion of Sentencing” i n C Tata & N Hutton
(eds) Sentenc ing and Societ y: Internatio nal Perspective s (2002) 157 166 (research has shown t hat the
public become fa r more punitive when there are se veral related pre vious conviction s); BK Crew, GM
Lutz & K Fahrney “ Crisis and Contr adictions in a St ate Sentencin g Structu re” in C Tata & N Hutton (eds)
Sentencing a nd Society: Internati onal Perspectives (2002) 177 189-192 (a criminal re cord consistently
resulted in a m ore punitive respon se in public attit udes during a sen tence survey); JV Robe rts “The Role
of Crimina l Record in the Sente ncing Process” i n M Tonry (ed) Crime and Just ice: A Review of Rese arch
22 (1997) 303 315 (many consider it as self-e vident that sent ences should becom e harsher in cas e of repeat
offences); A Manson T he Law of Sentencing (2001) 151 (law in Canada); A Ashwor th Sentencing and
Criminal Jus tice 4 ed (2005) 189-191
2 This article is par tly based on my p aper “Reform ing Senten cing in order t o increase S entence Cons istency”
delivered at the SLTSA Conference held i n Pietermarit zburg, 16-07-2009
(2011) 22 Stell LR 188
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principles established by the Cr iminal Procedure Act 56 of 1955, in particular
that a previous conviction should lose its agg ravating effect after ten yea rs,
continue to play a substantial role in cu rrent practice, des pite the fact that it
was not re-enacted .3
In this par t I will consider current legislative provisions affecti ng the role of
previous convictions in sentenci ng, as well as certain gene ral principles that
are intended to gu ide the sentencers’ discretion. A selection of recent cases is
then considered, in a n attempt to distil yet further pr inciples that might assist
in guiding th is discretion.
2 2 Legislative guidance
Section 271(4) of the Criminal Procedu re Act 51 of 1977 requires of the
sentencing court t o take into account any previous convict ions that the accused
might h ave.4 It says nothing of the weight that the cour t should attach to this
factor. Consequently, courts generally si mply repeat that the relevant factor
was taken into accou nt.5 In essence the extent to which prev ious convictions
increase the sentence i s purely within the discretion of the sentencer, based on
the circumsta nces of the case.6
The previous Crimi nal Procedure Act 56 of 1955 had a similar provision, but
also included provisions related to previous convict ions that were not repeated
in the curre nt Act. For example,7 section 303ter provided that previou s
offences should, in general, not to be held agai nst the offender after ten years
without furt her convictions. Although this provision was not re-e nacted, it did
result in the general appr oach that previous convictions lose their relevance if
a substantial per iod, usually ten years a nd beyond, have passed without any
furthe r crimes being proved against the offender.8
The legislature has at t imes passed various othe r provisions related
to previous convictions. From the 1960s to 1980s penalty clauses ofte n
distinguished between rst offenders and those with previous convictions.
For example, the Stock Theft Act 57 of 1959 provided for a maximum ter m of
3 See the discussion th at follows below
4 S v Muggel 1998 2 SACR 414 (C) 418j; also J Kriegler & A K ruger Hiemstra: Suid-Afrika anse Strafproses
6 ed (2003) 678; E du Toit “Previous Convict ions” in E du Toit, F de Jager, AP Paiz es, A St Q Skeen & SE
van der Merwe (eds) Com mentary on the Cri minal Procedure Ac t (RS 38 2007) 27–1
5 S v Khanyapa 1979 1 SA 824 (A) 840; S v Mokubung 1983 2 SA 710 (O) 720
6 S v Muggel 1998 2 SACR 414 (C) 419 (stressing the fac tors that the cour t should take into acco unt, such
as the natu re and number of previous conv ictions and their recenc y and relevance); Du Toit “Previous
Convictions” i n Commentary o n the CPA 27-1; SS Terblanche A Guid e to Sentencing in S outh Africa 2 ed
(2007) 188 Cf S v Morebud i 1999 2 SACR 664 (SCA) 668e-h for a practical ass essment of the exercise of
this discretion
7 See S v Mqwathi 1985 4 SA 22 (T) 25 The deta ils of this provision wer e not as simple as stated he re, but
they are not of cur rent importa nce Although s 271A of the Crimi nal Procedure Act 51 of 1977 provide s
that cert ain previous co nvictions fall away, it is li mited to lesse r offences (see Terblanche Gu ide to
Sentencing 84-85) In addition, s 271B-271E contains extensive p rovisions on, and c onditions for, the
expungement of cr iminal rec ords, including a lo ng list of offences relat ed to former apar theid legislation ,
offences base d on race in other legisla tion, and offences th at would now be considered u nconstitutiona l
None of these provis ions provides basic p rinciples rega rding how previou s convictions sho uld affect
sentencing
8 S v Mqwathi 1985 4 SA 22 (T) 25 The cases spec ifically referred t o in this regard are S v Van der Po el
PUNISHMENT AND PREVIOUS CONVICTIONS 189
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