reasonable doubt the presence of any mitigating factors relied on by the accused.[1] Due regard must be paid to the personal circumstances and subjective factors which might have influenced the accused person's conduct,[2] and these factors must then be weighed up with the main objects of punishment, which have been held to be: deterrence, prevention, reformation, and retribution.[3] In this process "[e]very relevant consideration should receive the most scrupulous care and reasoned attention",[4] and the death sentence should only be imposed in the most exceptional cases, where there is no reasonable prospect of reformation and the objects of punishment would not be properly achieved by any other sentence.[5]
[47]There seems to me to be little difference between the guided discretion required for the death sentence in the United States, and the criteria laid down by the Appellate Division for the imposition of the death sentence. The fact that the Appellate Division, a court of experienced judges, takes the final decision in all cases is, in my view, more likely to result in consistency of sentencing, than will be the case where sentencing is in the hands of jurors who are offered statutory guidance as to how that discretion should be exercised.
[48]The argument that the imposition of the death sentence under section 277 is arbitrary and capricious does not, however, end there. It also focuses on what is alleged to be the arbitrariness inherent in the application of section 277 in practice. Of the thousands of persons put on trial for murder, only a very small percentage are sentenced to death by a trial court, and of those, a large number escape the ultimate penalty on appeal.[6] At every stage of the process there is an element of chance. The outcome may be dependent upon
- ↑ S v Nkwanyana and Others 1990 (4) SA 735 (A) at 743E–745A.
- ↑ S v Masina and Others 1990 (4) SA 709 (A) at 718G–H.
- ↑ S v J 1989 (1) SA 669 (A) at 682G. "Generally speaking, however, retribution has tended to yield ground to the aspects of correction and prevention, and it is deterrence (including prevention) which has been described as the 'essential', 'all important', 'paramount' and 'universally admitted' object of punishment". Id. at 682I–J (cited with approval in S v P 1991 (1) SA 517 (A) at 523G–H). Cf. R v Swanepoel 1945 AD 444 at 453–455.
- ↑ Per Holmes JA in S v Letsolo 1970 (3) SA 476 (A) at 477B (cited with approval by Nicholas AJA in S v Dlamini 1992 (1) SA 18 (A) at 31I–32A in the context of the approach to sentencing under section 322(2A)(b) of the Criminal Procedure Act No. 51 of 1977).
- ↑ S v Senonohi 1990 (4) SA 727 (A) at 734F–G; S v Nkwanyana, supra note 72, at 749A–D.
- ↑ According to the statistics referred to in the amicus brief of the South African Police approximately 9 000 murder cases are brought to trial each year. In the more than 40 000 cases that have been heard since the amendment to section 277 of the Criminal Procedure Act, only 243 persons were sentenced to death, and of these sentences, only 143 were ultimately confirmed on appeal. See also, Devenish, supra note 42, at 8 and 13.
