12 [13] Within these general constraints our courts, both the high courts and the various levels of magistrates’ courts, have continued to impose sentences across the whole spectrum of common law criminal offences from murder to common assault; robbery, housebreaking, theft and malicious injury to property; kidnapping; fraud, forgery and uttering, and extortion; sexual offences, ranging from rape to indecent assault; and many others. In doing so they exercised a judicial discretion on the basis that ‘the measure of punishment is a matter for the judge who imposes it’.21 The rules governing the exercise of that discretion were set out in countless decisions of this court. It is appropriate to reflect on how Mr Prins, if convicted, would have been dealt with under that regime. He was charged on the basis of an allegation that he had fondled the complainant’s breasts and private parts without her consent. Such conduct (if proven) has always constituted a crime in South Africa. Until the coming into force of the Act it was prosecuted as the common law crime of indecent assault, which was repealed and replaced by the offence of sexual assault in s 5(1) of the Act.22 There was no statutorily prescribed sentence for this offence. Accordingly under the law as it stood prior to the coming into force of the Act Mr Prins would have been prosecuted for the common law offence of indecent assault and, if convicted, sentenced by the regional magistrate to a sentence within his statutory powers. [14] None of this is controversial. Problems arise when statutory offences are created without specifying a penalty. That is the problem in the present instance. Although the instances where this arose are rare, where a criminal offence was created by legislation, but no penalty was prescribed in that legislation, there were judgments that held that the 21 I Lionel Swift and A B Harcourt QC The South African Law of Criminal Procedure (1st ed, 1957) at 479. 22 The long title to the Act says inter alia that it repeals the offence of indecent assault and replaces it with the offence of sexual assault.