explores aggravating and mitigating factors that play a role in selected foreign jurisdictions. (See the Arnold case.) Chairpersons who lack experience 3. These factors could result in a lighter sentence. Page 3 Mitigating factors should be considered after the employee has been found guilty of the offence; whether there are mitigating (or aggravating) factors constitutes a separate inquiry. Introduction. This decision was an appeal, in part, from the Ontario Court of Justice dealing with mitigating factors on sentencing … Victims’ Mitigating Views in Sentencing Decisions: A Comparative Analysis Annette van der Merwe* & Ann Skelton† Abstract: This article explores the arguments for and against victims‟ mitigating opinions on sentence. The judge in that case said that just as youth is a factor in sentencing, old age is also a factor, although for different reasons. However, that is likely to change within the next few years. In, Ontario (Labour) v.Flex-N-Gate Canada Company, 2014 ONCA 53, an employer was fined $50,000 after an employee badly injured her foot and the employer was found to have breached two provisions of the Ontario Occupational Health and Safety Act (OHSA), R.S.O 1990, c, O.1.. In S v Zinn12 and S v Malgas,13 it Where the employee is found guilty in any hearing mitigating circumstances can influence the penalty or corrective action decision. The Sentencing Project started to develop one from precedents collected by others, notably the No Name Newsletter ("Official Publication of … to do so. Table 8.1 Potential mitigating factors page 149 Table 8.2 Mitigating factors cited by sentencers (as affecting sentence) 150 Table 8.3 Perceived impact of mitigation on sentence 151 Table 8.4 Sentencer references to personal mitigation factors 153 Table 8.5 Ranking of mitigating factors… Terblanche, SS The Guide to Sentencing in South Africa Durban, Butterworths (1999) Thornstadt, H “The Day Fine System in Sweden” 1985 Criminal Law Review 306 Thomas, David “Sentencing Guidelines” Sentencing News Issue 2, 15 August 1999 Van Zyl Smit, D “Mandatory Minimum Sentences and The concept of "mitigating circumstances? Under South African law, murder carries a minimum sentence of 15 years for first-time offenders. A Mitigating factors. Sentencing is in many instances the most difficult facet of a criminal case. THE THINKING ADVOCATE'S LIST OF MITIGATING FACTORS Lists of mitigating (and aggravating) factors are legion. A variety of considerations may be relevant when considering a plea in mitigation. However, courts have held that attorneys may present mitigating factors when they are relevant to sentencing. Defense attorneys can present evidence of mitigators that support lenient sentences. Aggravating, mitigating and other factors in sentencing 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters-- (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, The topic is important because decisions about mitigating and aggravating factors actually define the detail of any sentencing framework grounded in proportionality.It is the ways in which sentencing practice deviates from the principle that the punishment should fit the crime that constitute the interesting penological questions. REPUBLIC OF SOUTH AFRICA Not reportable Of interest to other judges THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN JUDGMENT Case no: C 1147/10 ... After the chairperson of the hearing took mitigating and aggravating factors into account, he decided on dismissal as the appropriate sanction. ... circumstances of the case, including the many factors traditionally taken into account by Courts when sentencing offenders [paragraph 9]. : A323/2010. The United States Federal Sentencing Guidelines, the Canadian Criminal Code, as well as recommendations by the Law Reform Commission of the Australian State of New South Wales are considered. mitigating factors, and take these into account in sentencing, subject to the minimum sentences prescribed. 5 The court concluded that a court is expected to take into account all the mitigating factors that it would normally consider in respect of sentencing, including the crime, the criminal and the needs of society, and weigh them all in determining whether the minimum sentence is … Aggravating and mitigating factors Taken from Sentencing Guidelines Council Guideline Overarching Principles: Seriousness . How jail time is determined in South Africa 06 June 2018 - 08:14 By Law For All Judges have many aspects to take into account when sentencing is considered in criminal cases. In South Africa the defence has been successful in other situations in which the emotional stress has arisen from factors such as shock, fear and tension which have strained the powers of self-control until the accused has eventually lost his or her powers of self-control and snapped. The courts consider various relevant factors based on the so-called triad, which consists of the severity of the crime, the certain mitigating and aggravating factors in conjunction with the Zinn triad, in order to establish whether certain factors such as the prospects of rehabilitation can be viewed as “substantial and compelling” during the sentencing process. Noun. There are a number of factors contributing to this problem: 1. In the appeal between:- ... [12] The trial court fleetingly glossed over the appellant’s mitigating factors. 1. Criminal statutes typically do not list mitigating factors. A Journal on African Women’s Experiences 70-74 at 72, where it states: “It was not until 1993 that South Africa passed the Prevention of Family Violence Act, which, among other things, criminalised martial rape. from the sentencing legislation that provides for the different forms of punishment, sentencing jurisdictions for the various court levels, and those that deal with mandatory minimum sentences in South Africa. The weighing of aggravating and mitigating factors is most often used in connection with the penalty phase of capital murder cases, when the jury is deciding the life or death of the defendant, but the same principle applies to many different cases, such as driving under the influence cases. It describes a recent South African appeal case, compares it with a similar New Zealand appeal court judgment, and then investigates the legal position in England and Wales. For the South African perspective, see G Hancox ‘Marital Rape in South Africa: Enough is Enough’ (25 October 2012) BUWA! At present, South Africa does not have any codified sentencing purposes or principles or sentencing guidelines. REPUBLIC OF SOUTH AFRICA. in the sentencing of offenders.25 The South African Law Reform Commis-sion investigated the matter and considered mandatory minimum sentences as one of the options to reform sentencing practices; but did not make any ... 24 Sections 9 and 34 of the Constitution of the Republic of South Africa, 1996 (theConstitution). and uniformity of sentencing practices by the South African judiciary. All court cases are different, with specific circumstances that tend to either make the crime or wrongdoing more odious, or which lighten the defendant’s blame. Definition of Mitigating Circumstances. Chairpersons who are not trained or not trained enough 2. 1 Act 66 of 1995. The use of victim impact statements during sentencing is a widely debated issue. This innovative volume explores a fundamental issue in the field of sentencing: the factors which make a sentence more or less severe. But courts may deviate from this if they find ‘substantial and … Factors that determine the length of life imprisonment in South Africa. It follows, too, that for In balancing mitigating factors with aggravating factors the mitigating factors outway the aggravating factors. (b) Mitigating Factors These are factors about the personal circumstances of the offender that the court takes into account in order to reduce the severity of the sentence. The courts have ... Constitution of the Republic of South Africa, Act 108 of 1996, are protected. Nevertheless, it is currently part of sentencing practice in many jurisdictions and considered by some as a source of aggravating factors 1 and useful in understanding the true and total degree of harm inflicted by criminal acts. As aforementioned, South African trial courts are responsible for sentencing criminal offenders. refers to evidence brought by the employee that may persuade the presiding officer to hand down a lighter penalty than would normally be imposed. What are Mitigating Circumstances. For this reason, they establish the type of crime and its weight before proving the verdict based on discretion. In 2000, the South African Law Commission released a report containing an integrated package of proposals (South African Law Commission, 2000). The offender is usually given an opportunity to present to the court factors which will support a more lenient sentence. At your sentencing hearing, the judge looks at any mitigating factors that apply to you. These factors are not generally articulated in statute or case law, leaving substantial discretion to the court.9 In some countries, legal reforms have strengthened the role of the victim in sentencing. It was noted that old age did invoke some sympathy. Circumstances that tend to lessen the culpability of a defendant. Other chapters in the present volume explore sentencing factors in jurisdictions such as South Africa, Canada or New Zealand, where courts impose sentence in the absence of formal guidelines. Appeal No. All sentencing systems allow courts discretion to consider mitigating and aggravating factors, and many legislatures have placed a number of such factors on a statutory footing. The lists below bring together the most important aggravating and mitigating features with potential application to more than one offence or class of offences.

mitigating factors in sentencing south africa

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