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PRE-SENTENCE EVALUATION REPORTS


PURPOSE OF PRE-SENTENCE REPORTS


The primary purpose of a pre-sentence report is to assist the presiding officer in gaining a enhanced understanding of the offender, and the reasons for his or her crime. Experts in the field of human behaviour can be of immense assistance in determining a just individualised sentence. A pre-sentence report should be obtained whenever the presiding officer feels the need to be better informed about the character and possible future of the offender (Terblanche 1999:111-112). The primary purpose of the pre-sentence report is to provide the sentencing court with concise and precise information about the offender upon which to base a rational sentencing decision. The greatest asset of the pre-sentence report lies in the area of offender individualisation and the choice of disposal alternatives, including:

The content of the report can be used as a source of information in the preparation and planning of the offender's treatment and rehabilitation program and the criminologist should prepare a report with this in mind.

The purpose of a pre-sentence report is not to find excuses for the offender in order to try and bring about the lightest possible sentence. These reports are compiled to present the court with a picture of who the offender is as a human being. The more comprehensive the picture of the person before the court is, the better the court is able to determine a suitable individualized sentence.  To this end the criminologist must furnish the court with a comprehensive picture of the social and personal history of the offender, future criminal potential, mental and physical deviations and other relevant matters.


ROLE AND FUNCTION OF PRE-SENTENCE REPORTS


Once an accused has been found guilty, the judicial officer is confronted with formulating the most appropriate and most effective sentence.

Effective Sentencing is a human process which requires knowledge of human behaviour with all its complexities. Criminologists are trained in social sciences and therefore possess such knowledge. They can play an significant role in changing sentencing from an intuitive and largely subjective act into a rational and objective one (Graser 2002:11).

The chief function of the pre-sentence report is to serve as an indispensable sentencing tool for the court. It is the only external sentencing aid that is objective, practical, readily available and frequently used by the courts in disposing of offenders.

The report can serve as an important source of information for the Case Management Committee (CMC) at the Correctional Centre in devising a treatment plan and to conduct a risk assessment. Without it, the CMC has to collect data on the offender which could have been captured in the pre-sentencing phase.

The pre-sentence report is also important in the preparation of a parole report for the individual when early release is being considered. Most of the information needed for determining the success of early release should be contained in the report. When an offender is received by a correctional centre without a pre-sentence report, the only information available to Department of Correctional Services is the SAP69 which only contains the crime for which the offender has been sentenced. This makes individualized assessment difficult. An available pre-sentence report supplies the Parole Board with all the information available surrounding the crime and the offender assisting it in making an informed decision regarding the progress of the offender’s rehabilitation.

The presiding officer’s remarks are also important as they contain information pertaining to the aims of the specific punishment imposed on the offender. The presiding officer may, in the sentencing remarks, indicate that specific programmes e.g. anger management programmes are required. When assessing the offender it has then already been established by the court that control and anger management need to be addressed in the particular offender. The sentencing remarks also assist the parole board in their decision-making regarding release. If the requirements set by the presiding officer have been met, recommending the offenders release is easier.

Where the pre-sentence report has provided information on the victims involved, the Department of Correctional Services can use the report in making decisions regarding early release considering the best interests of the victim and the community. The contact information of the victim in the report may assist Department in contacting victims and allowing them a say in the release consideration.

The foremost stumbling block in the implementation of restorative justice in the Department of Correctional Services is a lack of information. It is demanding and costly to try to trace victims of crime and their families and often they are never found. By providing this information the pre-sentence report facilitates the initiative of restoration within the correctional facility as the offender and victim and family members involved on both sides can be brought into the restorative justice process.


REQUIREMENTS FOR A CRIMINOLOGICAL EVALUATION REPORT.


The pre-sentence report should be of such a nature that it may assist the court by scientifically presenting the offender and his circumstances to the court and provide a basis for the final decision of the court concerning the sentence to be imposed.

The pre-sentence report contains information usually irrelevant when determining the guilt or innocence of the accused. However, after the verdict, this information may helps the court to understand the character and personality of the offender as an individual. The report highlights the offender’s problems and needs and the social environment of the offender is illustrated. critically, the criminologist is the only expert within the various fields of experts who testify in court; social workers, including psychologists, probation officers and others, that can identify, assess and explain the probable fundamental causes for the commission of the particular crime.

When compiling a pre-sentencing report, the forensic criminologist must approach each case with the utmost caution. The pre-sentencing evaluation ought to be of such a nature that a complete profile of the offender is presented to the court. Due weight has to be given to the personal circumstances of the offender right through the sentencing process in addition to criminogenic factors contributing to the crime. (Engelbrecht 2003: 3).

The expert witness must always be a totally objective party to the matter before the court and never function as the advocate for one side or the other (Cohen 2008: 4). An objective report should be balanced and of equal value and assistance to both the State and the Defence.

In order to individualise the offender or it is necessary to focus on, the offender’s personality and character, psychological and emotional problems and needs, social context, including the family life, employment situation, neighbourhood, recreation and relationships. The report should additionally address the impact of the event on the individual and the extent to which the offender has been affected by his own actions. It places the criminal event into a theoretical and criminological perspective.

In order to maintain their confidence and composure, it is crucial that expert witnesses prepare themselves thoroughly. They should be aware of details such as the exact charge, relevant details of the crime and other relevant information, such as medical or psychological reports. According to Graser (2002:13), vagueness, uncertainty and confusion, damage the credibility of experts witnesses in court. They should be able to scientifically substantiate their assumptions or statements about the accused and the crime. The criminologist should be able to justify the sentence recommendation made in the report clearly. Mitigating and aggravating factors must be taken into consideration, such as age, health, attitude, circumstances, motivation and previous criminal record. All the information must be presented in a clear and concise manner.


VALUE OF THE PRE-SENTENCE REPORT


When people have been accused of committing a crime, considerable attention is paid to determining their guilt or innocence. In 1979 Judge Hiemstra (Graser 2002: 8) stated  that, while the criminal procedure is usually a formal, in-depth and thorough process, the sentencing phase is more rapid. The decision about the future of the offender, once found guilty, is usually a quick, informal and haphazard process. Little has changed in the sentencing process since Hiemstra made this claim.

Graser states that: “Not only do South African judges and magistrates receive very little training in the "art" of sentencing, they also receive minimal, if any, training in the social sciences. Because sentencing is a human process, with implicit predictions about outcomes of sentences (in terms of the objectives of punishment), it requires a knowledge of human dynamics. That is, in order to pass a sentence that is likely to protect the community, render the offender less violent or less devious, deter offenders and potential offenders and bring about positive changes in the offender's attitudes and behavioural patterns, judicial officers have to have a knowledge of human social dynamics. To that end they also require knowledge of relevant aspects of certain social sciences, particularly criminology”.

The training of Judges and magistrates in South Africa does not include aspects such as human motivation, risk factors associated with crime and delinquency, crime prevention, rehabilitation and theories of punishment. Thus, in order to determine a rational and effective sentence that will achieve both the main aims of punishment and be beneficial to the community, the victim and offender, the skills of criminologists and penologists are required by courts.

However, it is imperative to remember that the final decision in the sentencing of offenders is made by the presiding officer alone. The criminologist makes only a recommendation to the court regarding the form of punishment thought to best suit the individual offender. Experienced judges and magistrates view the pre-sentence report as a tool to be taken into consideration in  the determination of a just and reasonable sentence.

BACK


REFERENCES


Bartol, CR. 1999. Criminal behavior. A psychosocial approach. 5th edition. Upper Saddle River, New Jersey: Prentice Hall

Cohen, KS.2008. Expert witnessing and scientific testimony. Surviving in the courtroom. London: CRC Press.

Engelbrecht, J. 2003. The forensic criminologist (FC): Expectations of the court regarding the pre-sentence report and behaviour of the expert witnesses with special reference to sentence recommendations.
Paper presented at a symposium : “Expert evidence in court: Requirements and expectations” held at the Sunnyside Campus, University of Pretoria on 30 May 2003.

Graser, RR. 2002. The pre-sentence investigation. In: Forensic Criminology (HCRFOR-8). Tutorial letter 501/2003. Pretoria: University of South Africa.

Hunter, RD & Dantzker, ML. 2002. Crime and criminality. Causes and consequences. Upper Saddle River, New Jersey: Prentice Hall.

Labuschagne IL 2003. The role of the criminologist as expert witness in court, in comparison with those of other specialists, such as psychologists, psychiatrists or social workers. Paper presented at a symposium: Expert evidence in court: Requirements and expectations, held at the Sunnyside Campus, UNISA on 30 May 2003.

Labuschagne, JJ. 2003. The necessity for establishing a professional board for criminologists: Purpose, requirements and compilation of a constitution. Paper presented at a symposium: Expert evidence in court: requirements and expectations, held at the Sunnyside Campus, UNISA on 30 May 2003.

Reid, ST.2003. Crime and criminology. 10th edition. New York: McGraw-Hill. Schmidt, CWH & Rademeyer, H. Bewysreg. 4de Uitgawe. Durban: Butterworths.

Siegel, LJ. 2004. Criminology. Theories, patterns and typologies. 8th edition. Belmont, Canada: Thomson/Wadsworth.

Terblanche, SS. 1999. The guide to sentencing in South Africa. Durban: Butterworths.

Terblanche, SS. 2007. A guide to sentencing in South Africa. 2nde edition. Durban: LexisNexis.

Copyright © 2011 Laurie Pieters. All rights reserved

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