PERIOD SPENT IN CUSTODY AWAITING TRIAL IS A FACTOR IN DETERMING PRESENCE OF SUBSTANTIAL AND COMPELLING CIRCUMSTANCES

S v MQABHI 2015 (1) SACR 508 (GJ)
Sentence — Prescribed sentence — Minimum sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — ‘Substantial and compelling circumstances’ — Period spent in custody awaiting trial — A factor in determining presence of substantial and compelling circumstances — Factor not to be isolated but to be weighed with other circumstances — No mechanical formula applicable.

Sentence — Prescribed sentence — Minimum sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — When period of imprisonment commences — Semble: Inability to determine that such sentence should commence on date earlier than when sentence was handed down creates hardship for accused who has been detained for lengthy period, was sentenced to life imprisonment and, in terms of s 73(6)(b)(iv) of the Correctional Services Act 111 of 1998, only became eligible for parole after serving minimum sentence of 25 years — This inability could also affect constitutionally safeguarded rights.

The appellant was convicted in a regional magistrates’ court of robbery with aggravating circumstances and was sentenced to 15 years’ imprisonment. Despite the fact that the appellant had been held in custody for two years prior to sentencing, the magistrate held that, on an overall assessment, there were no substantial and compelling circumstances that justified a sentence less than the 15 year minimum in terms of s 51 and part II of sch 2 to the Criminal Law Amendment Act 105 of 1997 (the CLAA). On appeal, counsel for the appellant argued that the magistrate had misdirected himself in finding that there were no substantial and compelling circumstances that warranted a lesser sentence than the 15 year minimum, and, in addition, that the sentence induced a sense of shock. The court requested argument G on the treatment of a lengthy period spent in custody awaiting trial. After considering argument the court formulated the following guidelines: (a) Pre-sentence detention was a factor to be taken into account when considering the presence or absence of substantial and compelling circumstances for the purposes of the CLAA. (b) Such period of detention was not to be isolated as a substantial and compelling circumstance but had to be weighed as a mitigating factor, together with all the other mitigating and aggravating factors, in determining whether the effective minimum period of imprisonment to be imposed was justified in the sense of it being proportionate to the crime committed. If it were not then the want of proportionality constituted the substantial and compelling circumstances required under s 51(3). (c) The reason for the prolonged period of pre-sentence detention was a factor. If the offender were responsible for unnecessary delays then this might redound to his detriment. (d) There was no mechanical formula or rule of thumb to determine the period by which a sentence was to be reduced. The specific circumstances of the offender, which might include the conditions of his detention, were to be assessed in each case when determining the extent to which the proposed sentence should be reduced. (e)Where only one serious offence was committed, and assuming that the offender had not been responsible for unduly delaying the trial, then a court might more readily reduce the sentence by the actual period in detention prior to sentencing.

The court also held that the following legal principles, interests and values had a bearing on the weight to be accorded to a lengthy period of pre-sentence incarceration where the offender had not been deliberately delaying the trial: the store to be placed on the right to freedom under s 12(1) of the Constitution read with s 35(3)(d), which accorded the right to every person to have their trial begin and conclude without unreasonable delay; and the equality provisions of s 9 of the Constitution which provided for equality before the law.

Semble: The inability to determine that a sentence under the minimum sentence provisions should commence on a date earlier than when the sentence was handed down created hardship for an accused who, after being detained in custody for two or three years, was sentenced to life imprisonment and who, in terms of s 73(6)(b)(iv) of the Correctional Services Act 111 of 1998, only became eligible for parole after serving a minimum sentence of 25 years. This inability could also affect constitutionally safeguarded rights.

Held, that, in the present case the two year period of pre-sentence incarceration had to be deducted from the 15 year minimum, and the sentence of the court a quo had to be changed to one of 13 years’ imprisonment, commencing on the date the accused was sentenced by the trial court.

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