Examining the Implications of an Inference of Remorse or Lack Thereof Drawn From a Convicted Offender’s Plea of Guilty or Not Guilty

Abstract

The concept of remorse is often referred to as a sentencing factor carrying enough weight to mitigate the sentence imposed on a convicted offender, and the lack thereof is seen as an aggravating factor. Numerous cases have referred to an offender’s plea of guilty (in terms of section 112 of the Criminal Procedure Act) as an indication of remorse, and to a plea of not guilty (in terms of section 115 of the same Act) as a lack thereof. In drawing such inferences, our courts seem to negate the right to a fair trial, particularly the right to adduce and challenge evidence as envisaged in section 35(3)(i) of the Constitution of the Republic of South Africa, 1996. This article seeks to analyse the implications of drawing an inference of remorse (or lack thereof) from a convicted offender’s plea of guilty or not guilty. This article seeks to answer the question of whether the inference of remorse or lack thereof, drawn by sentencing courts from a plea of guilty or not guilty, is a blind one; and if it is not a blind inference, then how do sentencing officers ensure that a balance between the aggravating and mitigating factors is maintained to ensure that the punishment fits the crime.