Abstract
South African courts, in at least two reported cases, have dealt with restorative justice (RJ) in sentencing offenders (i.e. State v. Thabethe (Thabethe case); State v. Seedat (Seedat case)). In both of these cases, the Supreme Court of Appeal rejected the notion of RJ in its entirety, with the presiding judges ‘[cautioning] seriously against the use of restorative justice as a sentence for serious offences.’ However, in countries such as New Zealand, courts have handed down custodial sentences in cases of serious offences while giving due regard to RJ at the same time. The purpose of this article is to highlight some of the strategies that New Zealand courts have invoked to ensure that a balance is struck between retributive justice and RJ. On the basis of this analysis, a conclusion is drawn that RJ can play a role in criminal matters by having it reflect through reduced sentences. With such a strategy, courts can strike a balance between the clear and powerful need for a denunciating sentence on the one hand and RJ on the other.
Highlights
Restorative justice (RJ) has no place and should not constitute an option in cases of serious offending
The purpose of this article is to highlight some of the strategies that New Zealand courts have invoked to ensure that a balance is struck between retributive justice and RJ
On the basis of this analysis, a conclusion is drawn that RJ can play a role in criminal matters by having it reflect through reduced sentences
Summary
South African courts, in at least two reported cases, have dealt with restorative justice (RJ) in sentencing offenders The prosecution led the evidence of a clinical psychologist who relayed the complainant’s wishes that the court should not impose a community-based sentence but instead that an order for financial compensation be made on account of the trauma she suffered owing to the rape.[34] The state was against the complainant’s request, preferring a lengthy term of imprisonment on account of the seriousness of rape.[35] The trial court, having taken into account the submissions of both the defence and the prosecution, sentenced Seedat to seven years’ imprisonment.[36] It can be deduced from the trial court’s decision that, the complainant desired that the sentencing process accord regard to compensation, this was not an option for the state. The cases discussed far illustrate how courts tend to struggle to balance the retributive theory of justice and RJ at the sentencing stage In both Thabethe and Seedat, because the Supreme Court of Appeal needed to affirm the gravity of the crimes (sexual offences), a sentence that excluded custodial sentence would not be an option.
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