Page 28 - Magistrates Conference 2019

rehabilitation. A basic principle of sentencing law is that a sentence of
imprisonment imposed by a court should not exceed that which can be justified
as appropriate or proportionate to the gravity of the crime considered in light of
its objective circumstances: Hoare v R (1989) HCA 33. A sentence that is not

proportionate is not just.

6. In the Supreme Court of Canada, in Re B. C. Motor Vehicle Act, 1985 Can LII
(SCC), [1985] 2 S.C.R 486, at page 533, Wilson J opined that, it is basic to any
theory of punishment that the sentence imposed bear some relationship to the
offence; it must be a “fit” sentence proportionate to the seriousness of the
offence. Only if this is so can the public be satisfied that the offender “deserved”
the punishment he received and feel a confidence in the fairness and rationality

of the system.

7. As explained in R v Ipeelee , [2012] 1 S.C.R. 433, 2012 SCC 13, at paragraph 37,
whatever weight a judge may wish to accord to the various objectives and other
principles of sentencing, the resulting sentence must reflect the fundamental
principle of proportionality. Proportionality is the sine qua non of a just sanction.

First, the principle ensures that a sentence reflects the gravity of the offence. It
promotes justice for the victim and ensures public confidence in the justice
system. Secondly, the principle of proportionality ensures that a sentence does
not exceed what is appropriate. In this sense, the principle serves a limiting or
restraining function and ensures justice for the offender.

8. The principle of proportionality undoubtedly imposes a restraint on the
sentencer; trial judges however, do enjoy a broad discretion in the sentencing

process, enjoined as they are, to tailor sentences to the circumstances of the
particular offence and the particular offender. An appellate court is obligated to
ensure that courts properly apply the legal principles governing sentencing and
must be satisfied that the sentence under appeal is proportionate to both the
gravity of the offence and the degree of responsibility of the offender.

9. In Dooke v Director of Public Prosecutions [2010] SCJ 71, (a case from
Mauritius) the court said that the principle of proportionality pervades through
the whole system of justice, in procedure, substance and sanctions. The principle
of proportionality has been applied in a wide range of cases, from the very
serious to the much less serious. In Reyes v The Queen, [2002] UKPC 11, a case