About
Services
- Compile pre-sentence evaluation reports with regard to the
following crimes:
- Crimes against the person, such as murder and assault
- Family violence
- Sexual crimes, such as sexual harassment and rape
- Crimes against property, such as theft, robbery and fraud
- Damage to property, such as arson and vandalism
- Expert witness in criminal court cases
- Compile evaluation reports for internal disciplinary hearings
for private organisations.
For more information contact Professor Van der Hoven at:
Services are provided for private
individuals as well as companies.
Services - Pre-sentence evaluation report
PURPOSE AND VALUE OF PRE-SENTENCE EVALUATION REPORTS
Purpose of pre-sentence reports
The main purpose of a pre-sentence report is to
assist the presiding officer in gaining a better understanding of the
offender, and the reasons for his or her crime. Experts in the field of
human behaviour can be of great assistance in determining a just
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 succinct and precise information upon which to
base a rational sentencing decision. However, the purpose of the
pre-sentence report is much more comprehensive. The greatest asset of
the pre-sentence report lies in the area of offender individualisation
and the choice of disposal alternatives, including:
- providing the court with a complete image of the offender and
his or her problems
- helping the court to decide what would constitute the most
desired action in the specific circumstances
- serving as a basis for the continuing treatment and
rehabilitation of the offender.
In the latter point 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 programme. When the
criminologist prepares a report, the investigation and content of the
report should be presented in such a way that it may be used as a source
of information in the development and formulation of the treatment
programme for the offender.
The purpose of a pre-sentence report is not to find excuses for the
offender or to try and bring about the lightest possible sentence. To
the contrary, these reports are compiled to present the court with a
picture of whom the offender is as a human being. The more complete the
picture of the person before the court, the better the court is able to
arrive at a just conclusion regarding individualised punishment. The
individualised process entails the necessary steps to 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 in order to determine a suitable sentence for
that specific individual (Engelbrecht 2003: 1).
Role and function of pre-sentence reports
Once an accused has been found guilty, the
judicial officer is confronted with the most difficult and morally most
demanding task, namely to formulate the most appropriate and most
effective sentence.
Sentencing is a human process, which, in order to be effective, requires
knowledge of human behaviour with all its complexities. Criminologists
are trained in social sciences and therefore possess such knowledge.
This implies that they can play an important role in changing sentencing
from an intuitive and largely subjective act into a rational and
objective one (Graser 2002:11).
The principal function of the pre-sentence report is therefore to serve
as an indispensable sentencing tool for the court. It is the only
external sentencing aid that is practical, objective, readily available
and regularly used by the courts in disposing of offenders.
The pre-sentence report can thus also serve as an important source of
information for the Case Management Committee (CMC) at the Correctional
Centre in order to plan treatment 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.
Besides treatment programmes, the pre-sentence report is also important
in the preparation of a parole report for the individual when early
release is being considered. All the information needed for determining
the success of early release is contained in the report. For example the
circumstances surrounding the crime are sketched by the criminologist in
the pre-sentence report. When an offender is received by a correctional
centre the only information available to Department of Correctional
Services is the SAP69 which only contains the crime for which the
offender has been sentenced. The availability of the pre-sentence report
supplies the Parole Board with all the information available surrounding
the crime and can make an informed decision regarding the progress of
the offenders rehabilitation.
The presiding officer’s remarks are also valuable as they contain
information pertaining to the aims of the specific punishment which has
been imposed on the offender. The magistrate or judge may, in the
sentencing remarks, indicate that 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 it is easier to
recommend the offenders release.
Where the pre-sentence report has supplied information on the victim or
victims involved, the Department of Correctional Services can make a
decision regarding early release and the best interests of the victim
and the community. Contact information of the victim in the report can
also assist the Department in contacting victims and allowing them a say
in the release consideration.
The pre-sentence reports supports 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. The biggest stumbling block in the implementation of
restorative justice in the Department of Correctional Services is a lack
of information. It is difficult and costly to try to trace victims of
crime and their families and in many cases they are never found.
Requirements for a criminological evaluation report
The pre-sentence report must be of such a nature
that it can assist the court by scientifically presenting the offender
and his or her circumstances to the court and therefore act as a basis
for the final decision of the court concerning the sentence to be
passed.
The pre-sentence report contains information which is usually not taken
into account when determining the guilt or innocence of the accused.
However, after sentencing, the information helps the court to understand
the character and personality of the offender as an individual. In the
report the offender’s problems and needs are reflected and the social
environment is illustrated. Most importantly, the criminologist is the
one expert within the various fields of experts who testify in court;
including psychologists, social workers, probation officers and others,
that can identify and explain the probable fundamental causes for the
commission of the particular crime.
When compiling a pre-sentencing report, the forensic criminologist
should approach each case with the greatest caution. The pre-sentencing
evaluation must be of such a nature that a complete profile of the
offender is presented to the court. Due weight must be given to the
personal circumstances of the offender throughout the sentencing process
as well as criminogenic factors contributing to the crime. (Engelbrecht
2003: 3).
The expert witness is expected to be an objective party to the lawsuit
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
help to both the State and the Defence.
In order to individualise the offender or to see "the offender as a
person", it is necessary to focus on various aspects. The offender’s
personality and character, emotional and psychological problems and
needs, social context, including the family life, neighbourhood,
employment situation, recreation and relationships must be introduced to
the court. The report should further focus on the impact of the event on
the individual and the measure to which the offender has been affected
by his or her own actions. It places the event, as found by the Court,
into a theoretical and criminological perspective.
In order to maintain their confidence and composure, it is crucial that
expert witnesses prepare themselves adequately. They should know details
such as the exact charge, relevant details of the crime and other
information, such as medical or psychological reports. According to
Graser (2002:13), uncertainty, vagueness and confusion will damage their
credibility. They should be able to substantiate their assumptions or
statements about the accused and the crime. Furthermore, the
criminologist should justify the sentence recommendation clearly.
Mitigating and aggravating factors should be taken into consideration,
such as age, health, motivation, attitude, circumstances and previous
criminal record. All the information should be presented in a clear and
concise manner.
Value of the pre-sentence evaluation report
The pre-sentence report closes up the gap that
exists between the time spent on determining guilt or innocence against
the time it takes the presiding officers to come to a decision regarding
the form of punishment to be imposed. 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) made the
point 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 little, if any, training in the social sciences. As 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”.
Unlike the social sciences, particularly criminology, the training of
legal scholars’ studies 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.
Judges and magistrates, whose training in South Africa generally does
not include criminology, psychology or sociology, thus require the
assistance of individuals who have undergone such training.
However, it is also imperative to keep in mind that the presiding
officer has the final decision making and that the criminologist only
makes 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 only as a tool to to take into
consideration in determining a just and reasonable sentence.
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.
More About Criminology
The study field of Criminology involves
the social sciences as well as elements of Criminal Law. Bartol (1999:3)
considers Criminology as the multidisciplinary study of crime. Reid
(2003:G3) defines the term criminology as the scientific study of crime,
criminals, criminal behaviour and efforts to regulate crime.
According to Dantzker (Hunter & Dantzker 2002:24) criminology is the
scientific approach to the study of crime as a social phenomenon, that
is, a theoretical application involving the study of the nature and
extent of criminal behaviour. Criminology not only focuses on
individual criminal behaviour but also on all environmental
circumstances as well as the context within which the criminal was
functioning at the time of the commission of the criminal act (Irma
Labuschagne 2003:5).
Terblanche (2007:8) describes the
field of study of Criminology as follows: “Criminology, broadly
speaking, studies crime, criminals, victims, punishment and the
prevention and control of crime. The most important role of a
criminologist is to study crime, and to interpret and explain crime”.
In the past, the emphasis was on explaining the behaviour of the
offender, but the emphasis has recently shifted to include analysis of
the consequences of imposed sentences. This makes it all the more
important for judicial officers to take note of the research done by
criminologists.
Criminologists such as Reid (2003: xvii
- xx), Siegel (2004:xv -xvi) and Bartol (1999:v - viii) identify the
following main areas of criminology:
- Criminal statistics (measuring crime
patterns and trends)
- Distribution of criminal behaviour
amongst gender, age and ethnic groups
- Detailed studies of specific types
of crime (economic crimes, crimes of violence, etc.)
- Causes of crime and criminality
(biological, psychological, social factors)
- Theoretical explanations of crime
(various perspectives)
- Impact of crime on individuals and
communities
- Social origin of the criminal law,
development of laws and the role of law in society, as well as the
function of legislation
- Societal reaction to crime
- Criminal Justice Administration,
including the police and legal professions
- Correctional programmes
- Victimology (The nature and cause
of victimisation as well as aiding crime victims)
Briefly, it can be stated that
criminologists are trained in the social sciences and focus mainly on
the causes, explanation and prevention of criminal behaviour. The study
field includes the profiling of offenders as well as of victims of
crime. The main emphasis is therefore on the individuals
involved in the criminal act.
Criminologists specifically study the
criminal in all his facets, such as causal factors contributing to the
criminal event, predisposition (e.g. personality make-up, genetic
factors), precipitating factors, triggering factors, the interaction
between the offender and the victim, victim vulnerability, victim
rights, role of victim in the criminal justice process, the criminal
justice process, the prevention of crime and victim support, et
cetera. Criminological studies involve personality and sexual
deviations, for example the antisocial personality, paedophilia, violent
offenders, rapists, and phenomena such as domestic violence, school
violence and workplace violence. Criminologists focus on the causes,
dynamics, theoretical explanation and prevention of violent behaviour.
They also study the offender’s patterns of criminal behaviour in the
past to predict his or her behaviour in future.
When compiling pre-sentence reports and
when testifying in court, there are certain limitations that should be
taken into consideration. Criminologists are not trained to diagnose
mental illnesses or personality deviations. They neither apply or
interpret personality tests, nor intelligence tests unless specifically
trained as psychometrists. Diagnosis, as well as applying and
interpreting psychometric tests is the highly specialised and exclusive
field of the psychiatrist and the clinical psychologist. Although
personality deviations are the study field of criminologists, they are
not trained to diagnose a person for instance as an Antisocial
Personality or Psychopath, but they can describe the characteristics of
such a person and indicate that the accused shows similar
characteristics. Should a criminologist suspect that the accused may
be suffering from a mental illness or personality disorder, it should be
brought to the attention of the accused’s legal representative, and a
psychiatric or psychological report requested before the commencement of
the court hearing.
Should the forensic expert be required
to write a pre-sentence report for the court regarding a dangerous
criminal, risk factors pointing to future violent behaviour must be
indicated. Criminologists cannot perform personality tests, but they can
develop their own scales and models to identify risk factors which may
indicate the individual’s level of dangerousness. Criminologists and
penologists should have sufficient knowledge to evaluate the offender
and on the basis of certain specific risk factors, to indicate whether
the person poses a danger to society or not. The forensic expert’s
prediction of dangerousness should be supported by a psychiatrist’s or
clinical psychologist’s evaluation report. Criminologists cannot give
an opinion in court regarding the accused’s mental capacity or
accountability, but they can give an opinion concerning the accused’s blameworthiness
based on mitigating and aggravating factors.
When compiling a pre-sentence report,
criminologists follow a holistic approach, taking all relevant factors
into consideration, which could have influenced the personality make-up
of the individual and the development of violent tendencies. In order
to obtain a complete picture, their reports should be complemented and
supported by psychiatric and psychological reports. Ideally, a
psychiatrist, a clinical psychologist, a criminologist and a social
worker should work together as a team in high profile cases when violent
offenders who committed serious crimes, are on trial. Due to their
divergent and specialised training, each expert will approach the case
from a different perspective as determined by their specific
discipline. The psychologist focuses on the psychological aspects of
an individual, whereas the forensic criminologist has a holistic view
and approaches the offender in his or her totality (Dr Irma Labuschagne
2003:5). The psychiatrist’s main role is determining the criminal
capacity of the accused before judgement. The forensic criminologist
can only consider the offender’s moral blameworthiness after conviction,
but before sentencing (Dr Irma Labuschagne 2003:5).
