ADVANCED AGE AS A MITIGATING FACTOR

Abstract

The sentencing of an offender is not determined in a vacuum. Certain guidelines and principles have been developed that should be applied in every case: the circumstances of the case; the severity of the crime; mitigating and aggravating factors regarding the offender; the interests of society; and the purposes of sentencing specifically deterrence, prevention, rehabilitation and retribution, as well as mercy. The focus of this note is only on a single aspect of the sentencing equation, specifically the extent to which the advanced age of the offender constitutes a possible mitigating factor. Although much has been written regarding youthful offenders, very little jurisprudence exists on the impact of age on persons on the opposite side of the age spectrum. This can be partly attributed to the fact that the elderly in general commit fewer crimes and that there are fewer appeals noted and reported on as age has been taken into consideration during sentencing. The note commences with an overview of the common law, proceeds to a discussion of the South African sources and concludes with a brief comparison with the approach adopted in the Zimbabwean, English and Australian jurisdictions with regard to sentencing older offenders.