CRW1501 EXAM PACK

CRW1501 EXAM PACK Unit 1 - Intro Distinguish between a crime and a delict.(5) Crime Delict 1 Directed against public interests. Directed against private interests. 2 Form part of public law. Form part of private law. 3 State prosecutes. Private party institutes action. 4 Result in the imposition of punishment by the state. Result in the guilty party being ordered to pay damages to the injured party. 5 State prosecutes perpetrator irrespective of the desires of private individual. Injured party can choose whether he wishes to claim damages or not. 6 Trial governed by rules of criminal procedure. Trial governed by rules of civil procedure. (a) Name the four requirements for criminal liability in the correct sequence. (5) 1. Conduct - -Conduct can lead to liability only if it is voluntary ie. capable of subjecting his bodily or muscular movements to his will or intellect. - An omission can lead to liability only if the law imposed a duty on X to act positively and he failed to do so. 2. which complies with the definitional elements of the crime - Definitional elements is the concise definition of the type of conduct and the circumstances in which that conduct must take place in order to constitute an offence 3. which is unlawful - Conduct that is contrary to the totality of the rules of law, including rules which in certain circumstances allow a person to commit an act which is contrary to the letter of legal prohibition or norm. 4. and culpable - ie. grounds upon which X may personally be blamed. - Subrequirements 1. Criminal Capacity a) The ability to appreciate the wrongfulness of his act b) The ability to act in accordance with such an appreciation 2. Act must be either intentional or negligent (b) X, a sixty-three-year-old public prosecutor who suffers from diabetes, is charged with the crime of corruption. The state’s evidence reveals that X received R30 000 from Y in exchange for destroying a police docket which implicated Y in several fraudulent activities. X is convicted of corruption. X has no criminal record. The state prosecutor argues that the appropriate sentence for X’s crime is imprisonment for a period of five years because persons in public office should be deterred from abusing their powers. X’s legal advisor disagrees with these submissions. She argues that imprisonment for a period of five years is too harsh a sentence, considering the age, health and clean record of the accused. In her view, a sentence of imprisonment would place too much emphasis on general deterrence, and disregards the principle of proportionality embodied in the theory of retribution. With reference to the decision in Zinn 1969 (2) SA 537 (A), discuss the merits of these arguments. In your answer you must explain the difference between the absolute and relative theories of punishment. (7) in Zinn the court held that three factors must be taken into account when a court sentences an offender. These factors are: the crime, the criminal, and the interests of society. By “crime” is meant that regard must be taken concerning the degree of harm or the seriousness of the violation. This consideration is important in terms of the theory of retribution. The theory of retribution is an absolute theory of punishment which means that punishment is an end in itself and not a means to a second end. Punishment is justified because it is the offender’s just desert. Retribution requires the restoring of the legal balance which has been disturbed by the commission of the crime. The theory therefore requires that the extent of the punishment must be proportionate to the extent of the harm done. In deciding upon an appropriate punishment, application of the theory of retribution is imperative, because it is the only theory of punishment which requires a proportional relationship between the harm done and the punishment imposed. Conversely, the relative theories of punishment strive to achieve a secondary goal: for example, deterrence of the community or the offender, reformation of the offender or prevention of the crime. In Zinn it was held that, apart from the seriousness of the crime, the interests of the criminal should also be taken into account. Relative theories of punishment (eg the reformative theory) are relevant in this context. The court must consider which punishment will be appropriate considering the person and personality of the offender. Questions that may arise in this context is whether the offender should be incarcerated, or whether he or she can be reformed by some other kind of punishment, (eg community service).The theory of individual deterrence is also applicable in the context of the “criminal”. Will the punishment deter him or her from engaging once again in criminal activity? The consideration of the “interests of society” requires, amongst other things, that society must be protected from criminals. This consideration forms the basis of the preventive theory of punishment. Furthermore, the community must be deterred from crime (the theory of general deterrence). It is clear that the so-called “triad in Zinn” requires a combination theory of punishment that accommodates the ideas of retribution, deterrence, prevention and reformation. According to the retributive theory, punishment is justified because it is X’s just desert. Explain the philosophy underlying retribution (or “just desert”). (4) According to the retributive theory, punishment is justified because it is X’s just desert. The underlying idea can be explained as follows: the legal order offers every member of society certain advantages, while at the same time burdening him/her with certain obligations. The advantages are that the law protects him because it prohibits other people from infringing upon his basic rights or interests, such as his life, physical integrity and property. However, these advantages can only exist if each member of society fulfils his obligations, namely refrains from infringing upon other members’ rights. If a person commits an act whereby he/she gets an unjustifiable advantage above other members of society, he/she disturbs the legal balance in society. He/she must be punished to restore the legal balance in society. Therefore, punishment can be described as the paying of a debt which the offender owes society as a result of his/her crime. Equal proportion between degree of punishment and degree of crime • The extent of the punishment must be proportionate to the extent of the harm done or of the violation of the law. • This is illustrated by the fact that the punishment imposed for an attempt to commit a crime is as a rule, less severe than for the commission of the crime. Retribution explains culpability requirement • Pre-eminently able to explain the need for the general requirement of liability known as culpability. (mens rea) • Presupposes that man has a free will. • Can be held responsible or blamed for choices made. Distinguish between the absolute and relative theories of punishment. (6)  There is only one absolute theory and that is the theory of retribution.  According to this theory, the aim of punishment is to restore the legal balance which has been disturbed by the commission of the crime.  The punishment is an end in itself. According to the retributive theory, the extent of the punishment must be proportionate to the extent of the harm done.  There are three relative theories of punishment.  These are the preventative, deterrent, and reformative theories.  According to these theories, the aim of punishment is a means to a secondary end rather than an end in itself (as in the case of the retributive theory).  The relative theories emphasise a future purpose, namely prevention, deterrence or reformation. In order to achieve these aims, the punishment imposed need not be proportionate to the extent of the harm done.  The theory of retribution, on the other hand, is purely retrospective and focuses only on the crime that was committed in the past. Accused X1,X2 and X3 are appearing before you on charges of theft. You find all of them guilty of this crime. You now have to sentence them. The evidence before you is the following: X1has stolen one chicken and has no previous convictions. X2 has also stolen one chicken but he has two previous convictions ^ one of theft of a radio and the other of theft of a watch. X3 has stolen a 4X4motor vehicle worth about R150 000.The evidence also reveals that chicken theft is very prevalent in the district. Apply the theories of retribution, prevention and general deterrence to these facts. The theory of retribution requires that the extent of the punishment be proportionate to the extent of the damage caused. Because the values of the stolen things are different, it follows that punishment for theft of the motor vehicle sh