Abstract
In 2008, the authors’ note on advanced age as a mitigating factor in the South African criminal courts set out the Roman-Dutch history and the South African case law with regard to this issue. Brief reference was made to the position of the elderly offender in the Zimbabwean, English and Australian jurisdictions. The aim of this note is not to repeat what was said before, but to provide a wider perspective on the pertinent issues relating to sentencing the elderly (a contested term, but for present purposes referring to offenders over the age of 60), especially the concept of mercy. It should be reiterated that old age does not exclude criminal liability, but it can serve as one of many mitigating factors during sentencing although it is not a bar to imprisonment. The case of S v Phillips is no exception. The structure of this note is the following: it commences with a discussion of the Phillips judgment and to place it within a general problematic sentencing framework vis-a-vis the elderly. The concept of mercy is then examined in light of recent Commonwealth jurisprudence; whereafter parallels are drawn between the sentencing of a battered wife and the sentencing of a battered geriatric. The note concludes with a brief mention of the post-sentencing options available to an offender in the form of mercy and as well as parole.
Highlights
Introduction“(unstrain’d) mercy ... seasons’ justice” (Shakespeare The Merchant of Venice Act IV Scene 1, Portia)
Mercy, which has been described as “a philosophically problematic virtue” (Eisenberg and Garvey “The Merciful Capital Juror” 2004 Ohio State Journal of Criminal Law 165), was a primary consideration in the sentence imposed on the accused in Phillips (2, where McLaren J acknowledges this in the context of “human frailty” and “genuine remorse”)
Whilst the age of an offender is a “serious factor to be considered in mitigation” (Ruby et al 213), and has been consistently treated as such in numerous jurisdictions, it seems clear that old age in itself does not justify the imposition of what would otherwise be an unacceptably low sentence (Fox and Freiberg 3.711)
Summary
Mercy, which has been described as “a philosophically problematic virtue” (Eisenberg and Garvey “The Merciful Capital Juror” 2004 Ohio State Journal of Criminal Law 165), was a primary consideration in the sentence imposed on the accused in Phillips (2, where McLaren J acknowledges this in the context of “human frailty” and “genuine remorse”). Walker and Padfield argue that in England illness is usually regarded by the courts as a matter of executive discretion (55; and see Wasik 382-383), it seems as in South Africa it can be considered by the courts during the sentencing phases as discussed supra as well as the executive, in the form of the either one, mercy and free pardon and two, parole. These possibilities are open to the elderly offender once he has been convicted and sentenced to imprisonment. For reasons of compassion or mercy he may be detained for a further period
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