Sentencing the corporate offender in South Africa: a comparative approach

Abstract

In terms of the Criminal Procedure Act a fine is the only sentencing option available to the court upon convicting a corporation for a criminal offence. The fine is imposed upon the individual representing the corporation at the trial in his representative capacity. The ordinary guidelines that regulate the imposition of a fine as punishment apply to the sentencing of corporations. Reported South African case law on corporate criminality, however, focuses primarily on the criminal liability of juristic persons and not so much on factors to be taken into account when the corporation (or,rather, its representative) is to be sentenced. This contribution therefore explores aggravating and mitigating factors that play a role in selected foreign jurisdictions. The United States Federal Sentencing Guidelines, the Canadian Criminal Code, as well as recommendations by the Law Reform Commission of the Australian State of New South Wales are considered. A consideration of these jurisdictions reveals the significance of the unique corporate character of the relevant corporate entity at the sentencing stage. In this regard courts may take into account the financial circumstances of the offender; the existence of effective compliance policies at the time of the offence; the reaction of the corporation to prior criminal conduct; the unique corporate character of the offender as well as the effect of the sentence on the community. South African courts may also find the consideration of these factors helpful.