Abstract:
This article explores the arguments for and against victims‟ mitigating opinions on
sentence. It describes a recent South African appeal case, compares it with a similar New
Zealand appeal court judgment, and then investigates the legal position in England and Wales. It
appears that, as a general rule, victims‟ recommendations as to penalty must be avoided.
However, unlike in South Africa and New Zealand, the jurisprudence in England and Wales has
developed exceptions in this regard when certain categories of victims request a more lenient
sentence. Several case studies from England and Wales reveal that, through considering the
harms and needs of victims and ameliorating the sentences accordingly, a restorative justice
approach is blended with a just deserts requirement for the protection of lower limits in
sentencing. This ensures that the principles of proportionality, certainty and consistency are still
adhered to. It is concluded that, had the South African court taken proper cognisance of these
comparative legal developments, it would, at very least, have created a better precedent by
providing guidelines to inform the complex, but important, process of considering victims
mitigating opinions in the sentencing process.
