Historical Development of DeterrenceDeterrence emerged in the pre-scientific literary period. During this period the infliction of punishment was aimed at deterrence instead of retribution in the form of revenge as it was during the primitive era. Deterrence is at the heart of the preventative aspiration of criminal justice.Deterrence, whether through preventative patrol by police officers or through stiff prison sentences for violent offenders, is the principal mechanism though which the central feature of criminal justice, the exercise of state authority, works to diminish offending and to enhance public safety (REFERENCE).
The principle was now to instil in the offender a sense of fear and force the rest of society to realise that crime does not pay. For the first time, an effort was made to punish the crime and not merely restore the equilibrium in society. The most barbarous measures of deterrence were applied by the two most highly developed organisations at the time, which were the church and the state. (ATTIT)One of the earliest written penal policies was the code of the Babylonian King, Hammurabi. This code was one of the earliest and most scientific efforts to achieve a social and ideological goal by means of accurate technical procedures. This code was in the form of a digest of laws such as manuals of instructions to judges, police officers and witnesses; the rights and obligations of spouses, women and children; a system of regulations on wages and prices; a code of behaviour for governmental officials, merchants and doctors; definitions, clause by clause, of the exact obligations that existed, the particular crimes and also the exact punishments to be administered. The code of Hammurabi was aimed at strengthening the authority of the state, protection of the weak against the strong and restoring the relations between the offender and the victim (restoration of the disturbed legal balance).
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Theoretical foundation of each objective of punishmentThe Classical School is foundation of Deterrence. The principles introduced by 18th century philosophers, were collected and elaborated on by a Cesare Bonesana Marchese de Beccaria, in his well-known Essay on Crimes and Punishments. Published in 1764, this famous book formed the theoretical basis for great changes in the penal law. The punitive methods of the 16th, 17th and 18th centuries were extremely harsh and were intended purely as a deterrent to crime. The personality of the offender, the circumstances under which the crime was committed, and other subjective factors were not considered during the sentencing process. In this book Beccaria explained that the aim of the penal law was to ensure the greatest happiness for the greatest number of people (known as the utilitarian principle in sentencing).
According to Beccaria the duty of judges should be to decide whether the law had been infringed and then a judged to act according to the prescriptions of the law. Although the severity of punishments should be determined by the extent to which the public welfare had been damaged by the crime, the aim of punishment should be to restrain the criminal from causing any further damage (individual deterrence) and to deter others from crime (general deterrence). Torture should be abolished. More use should be made of punishments such as prison sentences instead of corporal punishment. An accused should also be sure of a fair trial. Moreover, punishment should be limited to what is essential, openly and promptly administered and should be in proportion to the nature and gravity of the crime, as prescribed by law.
These ideas formulated in Beccaria’s book formed the fundamental basis of the Classical school. The Classical school advocated the following three principles: 1. The rights and duties of every individual should be safeguarded. Therefore equal adjudication procedures should apply for all offenders; 2. After conviction a definite (predetermined) sentence should be imposed for a specific crime 3.
Punishment should be limited to what is socially essential. The social necessity should be determined by the deterrent value of punishment: the punishment applied should not exceed the amount necessary to deter individual and potential offenders from committing similar crimes. Discuss the societal benefits of the successful implementation of the objectives of punishmentAccording to (reference), fundamental an effective deterrence regime is that offenders and potential offenders know what they face: that they are aware of prospective consequences.
Practical application of each objective:Summarise each case as follows:Name of the case: Details of the case (Stakeholders in the case, details of the crime)The appellant stood trial on seven charges in the Regional Court, Pretoria and was convicted on four of the charges, namely housebreaking with intent to rob and robbery with aggravating circumstances (count 2); rape (count 4); housebreaking with intent to rob and robbery (count 5) and housebreaking with intent to commit an offence to the prosecutor unknown (count 6). The appellant was sentenced to 15 years’ imprisonment in respect of counts 2, 4 and 5 and to ten years’ imprisonment in respect of count 6. The appellant appealed to the high court, which set aside the convictions on counts 2 and 4 and confirmed the convictions and sentence on counts 5 and 6. The high court, however, altered the conviction on count 6 to one of housebreaking with intent to commit theft. The appellant thereafter appealed, with leave of the high court, to the Supreme Court of Appeal against the sentence imposed. The Supreme Court of Appeal held that there was a clear misdirection by the regional court in that it failed to take into account the mitigating factors operating in favour of the appellant; namely that the appellant was a first offender, the appellant spent 34 months in custody awaiting trial, and lastly that the trial court over-emphasised the seriousness of the offence of housebreaking and the interests of society.
The Supreme Court of Appeal stated that although the regional court restated the established principles regarding sentence, it failed to apply them to the particular circumstances of the appellant. The importance of each objective in relation to the specific case (highlight specific references made to any one of the objectives of punishment) It is so that housebreaking is an extremely prevalent offence, and it is in the general public interest that sentences imposed in these matters H should act as a deterrent to others. The message needs to go out to the community that people who commit these types of offence will be dealt with severely by the courts. However, in S v Skenjana 1985 (3) SA 51 (A) at 54I – 55E, Nicholas JA endorsed the sentiments expressed by Holmes JA in S v Sparks and Another 1972 (3) SA 396 (A) at 410G, to the effect that ‘(w)rongdoers must not be visited with punishments to the point of I being broken’. It is clear from the following remarks that deterrence and retribution were at the forefront of the magistrate’s mind:The outcome of the case The Supreme Court of Appeal further held that the cumulative sentence of 25 years’ imprisonment imposed on the appellant was shockingly inappropriate. The SCA concluded that an effective term of 16 years’ imprisonment was just and fair under the circumstances.Name of the case: S v MNISI 2009 (2) SACR 227 (SCA)Details of the case (Stakeholders in the case, details of the crime)The appellant was convicted, upon a plea of guilty, by the regional court (Benoni) on one count of murder. The appellant, who was a prison warder, admitted that on 11 August 2001 at Rambuda Street, Benoni, he unlawfully and intentionally shot and killed the deceased, Joshua Hlatswayo, with his licensed service firearm.
Before the incident the appellant’s wife and the deceased were involved in an adulterous relationship. The appellant resented this and found her actions to be humiliating and degrading. He confronted her about the relationship and their respective families discussed the matter. The appellants wife promised that she would no longer see the deceased and he felt hopeful that all was resolved. Unfortunately, this was not the case. On the day in question, the appellant found his wife and the deceased in the car embracing each other. The appellant immediately drew his service firearm and shot the deceased where he was sitting in the vehicle.
The appellant stated that when he found his wife in the encirclement of the deceased, all the hurt and pain he had suffered through his wife’s affair flooded his mind and provoked him to the extent that he momentarily lost control of his ‘inhibitions’ and shot the deceased. The appellant claims that he did not intend to kill the deceased. The importance of each objective in relation to the specific case (highlight specific references made to any one of the objectives of punishment) The trial court had placed undue emphasis on the element of deterrence as an object of punishment. So far as individual deterrence was concerned, the evidence did not suggest that the appellant had a propensity for violence or was a danger to society. He was a first offender and, given the unusual circumstances of the case, was unlikely to commit such an offence again. Furthermore, the element of general deterrence had to be placed in its proper perspective. Domestic violence was rife and those who sought solutions to domestic and other problems through violence had to be severely punished.
Sentences imposed had to send a deterrent message. On the other hand, sight could not be lost of the fact that the appellant had committed murder whilst acting with diminished responsibility. In such circumstances the element of deterrence is of lesser importance when imposing sentence.
The outcome of the case Giving weight to the fact that the appellant acted with diminished responsibility and in view of Individual deterrence of lesser importance, the appellants sentence of eight years imprisonment was altered to one of 5 years imprisonment.Name of the case: S v THATHANA 2008 (1) SACR 494 (W)Details of the case (Stakeholders in the case, details of the crime)The accused was convicted of murdering his wife and their 20-year-old daughter. The accused’s defense that he had shot them in the process of defending himself from attack by a male companion of the deceased was rejected by the court. The court proceeded to impose sentence. In the absence of a reasonable version from the accused, the inference was inescapable that the deceased had been shot in cold blood. In addition, the daughter had been shot four times while she was in the process of fleeing the scene? this was a seriously aggravating factor. Further aggravating factors were that both the deceased had obtained protection orders against the accused? and that he had gone to the police station to retrieve his firearm, which had earlier been handed in, and used it to commit the offences.
This conduct showed his disrespect not only for the deceased, but for the law. It was also to be noted that the accused, as husband and father, had a duty to protect the two deceased? instead, he had abused them and eventually killed them. Held, further, that it was clear that there was a problem of discipline in the accused’s family. Being a parent was a considerable challenge, and it was understandable that the accused’s feeling of helplessness and his inability to resolve issues with the two deceased might have led to frustrations on his part. However, the way he had tried to solve his family problems was unacceptable.
The importance of each objective in relation to the specific case (highlight specific references made to any one of the objectives of punishment) The court applied the main objectives of punishment, that is, retribution, deterrence, rehabilitation and prevention. However, a discussion of importance with specific reference to deterrence with be highlighted. The outcome of the case The personal circumstances of the accused were far outweighed by the serious nature of the offence and the interests of society, especially because violence against women showed no sign of diminishing. The murders in casu were so serious that they merited punishment more than the prescribed minimum of 15 years’ imprisonment. Accused sentenced to 18 years’ imprisonment on each count, the sentences to run concurrently.