How Does a Judge Determine the Length of a Prison Sentence?

One thing becomes clear when you pay attention to court cases throughout the country – Oftentimes, the same crime receives a different sentence. At first glance, this seems like a flagrant disregard for equality and judicial integrity, but as you look closer, you’ll begin to notice certain differences between the trials which end up having a huge impact on the final sentencing. There are, in reality, a number of factors which will influence the sentencing of a guilty individual, ranging from the nature of the crime to the context in which it took place. This can all become a bit complicated if we let it, so maybe our best bet would be to ask a few important questions and go from there. For instance – How are sentences decided? Which factors determine the sentencing length? And why do some prisoners get off early? How Does a Judge Determine the Length of a Prison Sentence?

On a very broad level, we may argue that a good judge must consider certain fundamental elements in every case when determining the final sentence, these usually include – 

  • The nature and severity of the crime
  • The personal background of the guilty party and the context in which the crime took place
  • The interests of the community at large

That said, there are many other smaller factors which also impact the judge’s decision. We’ll look into these in more detail later on, but for now we need to focus on something of equal, or perhaps greater, importance. 

How Does a Judge Determine the Length of a Prison Sentence?
How Does a Judge Determine the Length of a Prison Sentence?

You may be surprised to learn that it is not just the judge who determines how long a prison sentence will be, there are also predetermined rules of law which will affect the length and intensity of certain punishments. So before we look at the role of a judge in sentencing, we should first consider the various acts and regulations which guide their decisions.

How Does the Law Influence Sentencing?

There are 4 main ways in which the legislation of South Africa affects the sentencing of criminals, specifically  – 

  • The Establishment of Maximum Sentences – Many acts in South Africa not only identify and prohibit certain crimes, they also establish the maximum sentences and penalties that can be issued against offenders. For example, the Dangerous Weapons Act limits the prison sentence for offenders (as detailed in the act) at 3 years. These acts can also highlight the different factors that should be taken into account by the presiding judge when determining the final sentence. 
  • The Establishment of Minimum Sentences – There is a shortlist of crimes in South Africa that come along with minimum sentences to prevent punishments from becoming too light. These crimes include things like rape, murder, human trafficking, etc. Courts may use their discretion and apply a lesser sentence, but only insubstantial and compelling circumstances. 
  • The Establishment of Penalty Limits for Courts – Different courts in South Africa are usually limited with regard to the fines and prison sentences that they can hand out. For example, the Magistrates’ Court can issue a maximum prison sentence of 3 years or a maximum fine of R100 000. 
  • Creating a System for Appeals – Obviously, there will be times when a judge passes a sentence that is overly harsh or unfair when considering the facts of the case. To counteract this issue, the judicial system has created a system of appeals which allows either the convicted individual or the National Prosecuting Authority to appeal on these grounds. 

As mentioned, judges normally have to operate within the bounds of these limitations imposed by the legislation. In other words, a judge won’t be able to sentence you to life in prison because you stole a bar of chocolate. 

That said, when operating within these boundaries, judges still have a lot of things to consider and many different factors will go into their ultimate decision.

How Does a Judge Determine the Length of a Prison Sentence?
How Does a Judge Determine the Length of a Prison Sentence?

How Does a Judge Decide a Sentence?

Judges are only human. As a result, there will be wide-scale variance between them when it comes to their sentencing procedures. That said, good judges will commonly consider the following elements when deciding a convicted person’s punishment – 

Factors which can Influence the Length of a Prison Sentence

Criminal History – When a person is brought before the court, the judge will take a look at any previous convictions that they might have. If you have had a high number of similar convictions in the past, your sentence may be much harsher than a person who has no criminal record whatsoever. 

The Nature/Severity of the Crime – As mentioned, similar crimes can be acted out in very different ways. Judges can increase or decrease the length of a prison sentence based on this factor. For example, two people who got into a bar brawl may be brought to court on similar charges of assault, however, the individual who punched someone and broke their nose would probably receive a much lighter sentence than the person who hit someone repeatedly until they required hospitalisation.

Context of the Crime – Judges understand emotions and the complexities of different social situations. As such, a judge may choose to lessen a sentence if the guilty party committed the offence in a moment of extreme distress, confusion, etc., (ie, if a family member just died). 

Apparent Remorsefulness – Although there is still much debate over the topic of remorse and leniency in court cases, the fact of the matter is that judges are generally more inclined to show leniency to an individual who appears genuinely remorseful for their actions. Alternatively, individuals who appear to lack any remorse for what they have done tend to suffer harsher penalties. 

Theoretical Approach – Judges tend to have different theories as to how the judicial system should work and how punishment should be used. For instance, some judges view sentencing as a vehicle for retribution on behalf of the aggrieved parties while others believe that it should only be used to deter future criminal activity. This difference of opinion can end up shaping how a judge makes their final decision with regard to sentencing. 

Ancillary Factors – The aforementioned points are just some of the main elements that impact sentencing. Many other, lesser factors exist which can also influence the outcome, these include things like: The age of the offender, the role of the offender in the crime, the extent to which the offender was provoked prior to the event, etc. 

How Long do you Serve on a 10-Year Sentence?

Generally speaking, convicted persons will have to serve their full term in prison unless they achieve some kind of parole. In other words, with a 10-year sentence, you will have to serve the full 10 years unless you get released early. 

Why do some Prisoners Only Serve Half of their Sentences?

We often hear stories of prisoners only serving a part of their sentence before being released, this occurs because of the parole system that is generally available to convicts. 

Even when you have been found guilty of a crime and sentenced to prison, there are still many different factors which may end up lessening your overall time in jail. These include, but are not limited to – 

  • The length of the sentence
  • Good behaviour whilst in prison
  • The nature/seriousness of the crime
  • The level of rehabilitation shown by the prisoner
  • Medical/humanitarian concerns

Prisoners may apply for parole and could end up getting released early on one of these reasons, however, there are certain restrictions in place. For example, the judge may stipulate that parole will only become available after a certain amount of time has been spent in jail. 

How Does a Judge Determine the Length of a Prison Sentence?
How Does a Judge Determine the Length of a Prison Sentence?

In Conclusion – How is the Length of Sentencing Determined in South Africa?

Sentencing in South Africa is primarily determined by two main authorities: The relevant legislation, and the judge/judges in question. 

With regards to the legislation, certain acts in South African law have provided various minimum and maximum sentencing lengths for different crimes. Additionally, restrictions have been placed on different courts which limit the total extent of any punishment that they may hand out. 

Judges normally have to work within these restrictions, however, there are still many elements which go into their decisions and which impact the final sentence.

The most fundamental aspects that must be considered by judges are – 

  • The nature and severity of the crime
  • The personal background of the guilty party and the context in which the crime took place
  • The interests of the community at large

That said, they will also consider specific factors with regards to the case, these can include anything from the age of the offender to their perceived level of remorsefulness. 

Obviously, judges can succumb to human emotions and may pass sentences that are far too severe for the crime in question. When this occurs, either the convicted individual or the National Prosecuting Authority can appeal the decision in order to receive a fairer outcome. 

Prisoners may not always end up serving their entire sentence as a parole system exists in South Africa which may lessen their punishments based on things like their behaviour whilst in prison or the extent of their rehabilitation. That said, certain restrictions may impact this process such as when a judge stipulates the amount of time that a guilty person must spend behind bars before they become eligible for parole. 

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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