n Stellenbosch Law Review = Stellenbosch Regstydskrif - The punishment must fit the crime : also when the offender has previous convictions?

Volume 22, Issue 1
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



Although there appears to be large-scale agreement that previous convictions, especially for similar crimes, justify the imposition of increased punishment, there are no clear principles on which such increase should be based in South Africa. Although the Criminal Procedure Act requires of the sentencing court to take previous convictions into account, it provides no guidelines regarding the extent of any increase. Nor is case law more specific. The result is wide discrepancies in sentences when the offender has previous convictions. Some judicial officers hold that the seriousness of the offence should still be the main determinant of the extent of the punishment, but in many cases previous convictions result in sentences many times more than what is justified purely by the seriousness of the crime. This happens, in particular, when the offence itself is rather petty. Having dealt with the problem that the presence of previous convictions are not consistently dealt with in our law, the article considers a variety of standards and practices that might be of assistance in addressing this problem. In the process various theories that have been advanced by some of the most knowledgeable theorists on sentencing are referred to, as well as practices as wide-ranging as those in the Netherlands, a few states in the USA and in South African legislation. Finally, the proposals by the South African Law Commission are considered, before a number of proposals are offered in order to improve the current situation.

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