CRW2601 CRIMINAL LAW Summary.

CRIMINAL LAW – 2601 – GENERAL PRINCIPLES THEORIES OF PUNISHMENT: ABSOLUTE THEORY: (a) Retributive The theory of retribution is purely retrospective and foresees on the crime that was committed in the past. RELATIVE THEORY: (a) Preventative (b) Deterrence (i) General deterrence (ii) Individual deterrence (c) Reformative • The emphasis is on a future purpose, namely; prevention, deterrence and reformative. In order to achieve these aims the punishment imposed need NOT be in proportion to the harm done. • Punishment is only a means to a secondary end or purpose: e.g. 1. Preventative theory; it is the prevention of crime. 2. Deterrent theory; it is to deter either the individual or the society as a whole from committing the crime. 3. Reformative theory; is the rehabilitation of the criminal. *NOTE: all of these theories are applied in deciding what would be an appropriate sentence for committing an offence. The authority on this point is Zinn 1969 (2) SA 537 (A). 1.1. RETRIBUTIVE THEORY: “the punishment is an end in itself”. 1. It is the restoring of the legal balance caused by the crime. 2. Punishment is the payment of the account. 3. Retribution = vengeance (lex tallions) 4. Extent of the punishment must be proportionate to the extent of the harm done or of the violation of the law. 5. Punishment expresses society’s condemnation of the crime. 6. Theory explains the need for general requirement of liability known as “culpability” – (mens rea) by presupposing free will. 1.2. PREVENTATIVE THEORY: • Theory says that the purpose of punishment is the prevention of crime. • Can overlap with deterrent and reformative theories. • Theory is only applied when a real possibility exists that the offender will again commit a crime: previous convictions point to repeat offenders. • CRITICISM: difficult to determine whether offender will again commit crime. 1.3.1. INDIVIDUAL DETERRENCE: • Teach the individual person convicted of a crime a lesson which will deter him from committing crimes in the future. 2 • CRITICISM: undermined by high percentage. 1.3.2. GENERAL DETERRENCE: • Theory says the purpose of punishment is to deter society as a whole from committing crime. • SUCCESS OF THE THEORY DEPENDS NOT ON THE SEVERITY OF THE SENTENCE, BUT ON HOW STRONG THE PROBABILITIES ARE THAT AN OFFENDER WOULD BE CAUGHT, CONVICTED AND SERVE OUT HIS SENTENCE. • CRITICISM: (a) based upon the premise that man prefers the painless to the painful, and he is a rational being who will always weigh the advantages and disadvantages of a prospective action before he decides to act. (b) there is no empirical proof of efficacy of theory. (c) If one applies this theory, it becomes permissible to impose a punishment which is not proportional to the harm inflicted when the offender committed the crime, but which is in fact higher than a sentence which is exactly proportional to the harm. REFORMATIVE/REHABILITATION THEORY: • Says that the purpose of punishment is to reform the offender as a person. • Emphasis is placed on the person and personality of the offender. • Theory says, an offender commits a crime because of some personality defect, or because of psychological factors flowing from his background. • CRITICISM: (a) difficult for a court to ascertain how long it would take to reform an offender. (b) theory doesn’t necessarily imply that the period of imprisonment ought to be proportionate to the harm inflicted. (c) effective only where the offender is a relatively young person. (d) rehabilitation of the offender is more often than not an ideal rather than a reality. (e) not necessary to wait for a person to commit a crime. (f) depersonalizes the offender by not regarding him as a free moral agent. COMBINATION THEORY: • Theory applied in practice by the courts in the combination theory. • Retribution forms the backbone. ZINN – 1969, describes factors court keeps in mind: 1. Crime – the nature and the severity of the crime. 2. Criminal – the interests of the accused. 3. Interests of society SOUTH AFRICAN CRIMINAL LAW: - SA law isn’t codified. 3 - Our criminal procedure is codified in the Criminal Procedure Act 51 of 1977. - Before a person can be convicted the principle of legality must be proved, i.e. is whether the act is a crime. - Principle of legality is not an element of the crime. ELEMENTS OF CRIMINAL LIABILITY: 1. Act / Conduct 2. Compliance with the definitional elements of the crime. 3. Unlawfulness 4. Culpability ACT OR CONDUCT: - act or omission. - The requirement for an act/omission must be satisfied. - Conduct can lead to liability only if it is voluntary. - An omission can lead to liability only if the law imposed a duty on X to act positively and X failed to do so. - X must be capable of subjecting his movements to his will or intellect. COMPLIANCE WITH DEFENTIONAL ELEMENTS OF THE CRIME: - DEFINITIONAL ELEMENTS OF THE CRIME MEANS: the concise definition of the type of conduct and the circumstances in which they must take place in order to constitute and offence. - By looking at these definitional elements, we are able to see how one type of crime differs from another. - EXAMPLE: definitional elements of robbery are: “the violent removal and appropriation of movable property corporeal property belonging to another”. - X’s conduct must comply with or correspond to the definitional elements; it must be conduct which fulfils the definitional elements, or by which these definitional elements are realized. UNLAWFULNESS: (means contrary to the law) – “law” in this context means the totality of the rules of law, and in certain circumstances, allow a person to commit an act that is contrary to the letter of the legal prohibition or norm. 1. The mere fact that the act complies with the definitional elements doesn’t necessarily mean that it is unlawful. DUE to grounds of justification that could exist, i.e. private defence (which includes self-defence), necessity, consent, right of chastisement and official capacity. 2. It must be seen in reference to the law in its entirety. CULPABILITY: 1. X’s conduct must be culpable. 2. The culpability requirement means that there must be grounds on which X can be personally blamed for his conduct. 3. It shifts here from the actual act to the accused’s personal abilities and knowledge (or lack thereof).