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Understanding the Criminal Justice Process
(This column is intended to address commonly asked questions about the criminal justice process for defendants. We intend to explain the roles of the various persons at each stage in this process beginning with the arrest and questioning stage and concluding with further information and resources. We will also address how long you can be held in custody and other rights and responsibilities you should be aware of. This column in no way replaces your need to personally consult your attorney-at-law or your own readings on the existing law (Prepared by Sparman and Small attorneys-at-law)
By the process of sentencing the Magistrate/Judge gives a decision on the appropriate/proportional/just penalty for the defendant’s commission of each offence. Therefore, the sentencing process occurs after the defendant is properly convicted of the offence(s) he/she was on trial for. The appropriateness/ proportionality/ justness of each sentence is based on the facts of the particular case/circumstances surrounding the case, the personal circumstances of the defendant, the type of offence and underlying principles governing the process of sentencing. In previous column contributions we addressed all of the above stated sentencing considerations except the principles governing the process of sentencing. As such, we will initiate a discussion on the latter.
Principles governing the process of sentencing
In most jurisdictions the courts rely on the four (4) classical principles of sentencing. These principles are as follows:
The aim of the principle of retribution is to cause the defendant/offender to think about the consequences of his/her action to the victim and/or society. A fuller explanation is that the sentence has to reflect that it is necessary for the defendant/offender to make right the wrong he/she committed against the victim and/or society. An extension of this principle is that the defendant should be punished for the crime he/she caused the victim and/society to suffer from.
In succinct terms this principle aims to curb and control the occurrence of crime and criminal behaviour through the promotion of fear of the consequences of being caught. Therefore, the form of sentence given should discourage further/future offending.
This principle aims to combat recidivism. Recidivism refers to the possibility of the defendant re-offending. As such, the outcome of the sentence should cause the defendant to be prevented from committing the same or similar offences. It can be practically seen that imprisonment is one of the forms of sentences that is rooted in this principle because the defendant is physically prevented from re-offending.
Rehabilitation by common English definition is synonymous with restoration. The result of any sentence guided by this principle should therefore be restorative. This principle is of great consideration in the sentencing of juvenile offenders because it is a common belief that juveniles can be resocialised because they are younger and have a greater life expectancy than mature offenders. Therefore, because of their youth and life expectancy they are a greater fit for rehabilitation.