Citation(1992) 4 SAcLJ 116
Date01 December 1992
Published date01 December 1992

This short paper seeks to provide a stimulus for discussion of a practical problem of sentencing in our courts against the background of the two established theories of punishment. The discussion in this paper will begin by briefly examining the concept of punishment and in particular analyse the arguments of Utilitarian and retributivist on punishment of the innocent. I would then consider what would, from the sentencer’s point of view, be the unintended but foreseeable consequences of the sentences open to him. The discussion would then focus on the extent to which judges1 have taken such consequences into account in their deliberation in deciding the appropriate sentence. A brief analysis of the reasons advanced by judges in these cases, would provide some guidance to evaluate the impact of such sentences on the utilitarian and the retributivist approaches to punishment. The paper would in conclusion question if either of the theories would justify taking into consideration the unintended but foreseeable consequences of punishment or if a compromise theory is the best solution.

In common law jurisdictions, the determination of appropriate sentence for an offence is mainly distributed between two institutions: the legislature and the courts. The legislature enacts laws prescribing the penalties for specific offences as well as the different types of sentences available to a sentencer. The Courts then impose sentences by exercising such discretion as is provided to them by the legislature.

The traditional legislative practice is to prescribe, in the statute creating the offence, the type of sentence and the maximum limit of such a sentence which can be imposed on an offender. This kind of sentence has been termed an indefinite sentence. The rationale for this practice is to leave the courts with some discretion in the prescription of sentences for individual offenders. It also protects the interests of the offender himself by setting a limit to his punishment beyond which the Courts cannot go. If there be

good reasons the legislature may even deprive or further restrict the sentencing discretion by specifying mandatory minimum sentences.2

Concept of Punishment

Although penologists and reported appellate court decisions show that sentencing an offender is a difficult balance of various conflicting interests, both of society as well as the offender, there are nonetheless some basic guidelines which have come to be accepted in sentencing practice. “The classical principles of sentencing are summed up in four words: retribution, deterrence, prevention and rehabilitation”.3

Retributive theory4

Retribution is an elusive word. It is still used in the classical sense indicating vengeance which justifies “an eye for an eye and a tooth for a tooth”. A manifestation of this philosophy can perhaps be seen in Singapore in the extensive use of caning in cases involving violence. This could be seen as a form of “striking back in kind”.5 Such a need exists at two levels. Firstly the state by acting on behalf of the victims and their families relieves their need for vengeance and prevents private retaliation. Secondly, the punishment by the state is a socially acceptable vent for aggressions which might otherwise become repressed and break out into a chaotic situation.

The modern philosophical variant of this theory is that an offender deserves his punishment. Under a general theory of political obligation all

persons owe duties to others not to infringe their rights. Justice and fairness requires that all persons must bear the sacrifice of obeying the law equally and not gain an unfair advantage over others who have played by the rules and restrained themselves from committing crime. In order to restore social equilibrium the offender deserves and must receive punishment in order to destroy his unfair advantage.6 At first glance this may not appear to be an insurmountable problem. But in handing out the just deserts, the courts, if sentencing retributively, would find no place for mitigating circumstances.7

The Utilitarian Theory

The Utilitarian Theory justifies punishment for the good consequences it produces by generally reducing crime. Punishment is seen as a deterrent, both general and individual, as being rehabilitative and also as incapacitating an offender.8 Utilitarians are often criticised that their model leads to the argument that if beneficial consequences can be derived than it would be in order to punish even an innocent person. The modern retributivist thus argue that the utilitarian aims in punishment are seldom achieved and that they also involve doing things to people which are open to moral objections.9

Unintended but foreseeable consequences

In the infliction of punishment on the offender for an offence committed by him it would be contrary to good conscience and morality if the consequences of imposing such punishment fell on persons who are not blameworthy for the offender’s conduct. It would be tantamount to imposing a vicarious liability on persons so affected. All forms of custodial and financial penalties often have the effect of inflicting hardship and

inconvenience on the offender’s family. The consequences may be of many forms10 of which the the following two appear more commonly:

  1. 1. Effect of the...

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