PLEA AND SENTENCE AGREEMENT PROCEDURE

S v DJ 2016 (1) SACR 377 (SCA)

 

Sentence — Plea-and-sentence agreement — Presiding officer of view that proposed sentence unjust — Parties to be informed of this and proposed substitute sentence at outset of trial — Criminal Procedure Act, s 105A(9)(a).

 

When a trial judge forms the view that the sentence proposed in a plea agreement in terms of s 105A of the CPA is unjust, he or she should, at the outset of the trial, inform the parties of this view and also of the sentence he or she considers just. The failure by the trial judge in the instant case to do so, and instead to substitute his own sentence for the sentence proposed by the parties, constituted non-compliance with the peremptory provisions of s 105A(9)(a).

The court set aside the convictions and sentences on appeal and remitted the matter to the High Court for trial de novo before another judge.

 

In the Gauteng Division of the High Court, Pretoria (Webster J), the first appellant, Ms DJ, pleaded guilty to charges of murder and child abuse in terms of s 305(3)(A) read with ss 1 and 305(6) of the Children’s Act 38 of 2005 (the Children’s Act) (child abuse or neglect). The second appellant, Mr MB, pleaded guilty to culpable homicide. These pleas were in terms of their plea-and-sentence agreements concluded with the state (the agreements). Attached to the agreements were the plea explanations which fully set out the factual and legal bases of the said pleas. Other documents forming part of the agreements were the post-mortem report and relevant information relating to the appellants’ mitigating and aggravating factors.

 

It is necessary to briefly set out the relevant background, which was undisputed, leading to the charges being preferred against the appellants. On 4 March 2014 the appellants, who lived together as husband and wife and were legally represented, were arraigned in the High Court inter alia on the charges mentioned above. They were alleged to have assaulted Ms DJ’s two minor children from a previous relationship, 5-year-old AJ (deceased) and his older brother SE, on numerous occasions, and subsequently causing AJ’s death. The assaults were inter alia committed by hitting the children with various objects, including a belt, wooden stick, and by burning them with cigarettes. They were also alleged to have failed to provide them with proper food and medical care. The deceased had also been locked indoors for prolonged periods.

In terms of the agreement, Ms DJ agreed to be sentenced to 18 years’ imprisonment for count 1 (murder) and three years’ imprisonment in respect of count 2 (child abuse). The sentences would be served concurrently, with the result that she would serve an effective sentence of 18 years’ imprisonment. Mr MB agreed to be sentenced to 12 years’ imprisonment for culpable homicide, conditionally suspended for five years.

Contrary to the sentences proposed in the agreements, the trial court imposed the following sentences on Ms DJ — counts 1 and 2 were taken together for purposes of sentence. She was sentenced to 15 years’ imprisonment, of which three years are suspended for a period of five years on condition that she is not convicted of a crime of which violence is an element. Mr MB was sentenced to 15 years’ imprisonment, of which three years were suspended for a period of five years on condition that he is not convicted of a crime of which violence is an element.

The sentences imposed by the trial judge differed materially from those proposed by the parties. Ms DJ would receive an effective six years’ imprisonment less than what was proposed. On the other hand, Mr MB would receive an effective sentence of two years’ imprisonment more than what was proposed in the agreement.

Dissatisfied with this, the appellants applied for leave to appeal from the trial judge. The state also applied for the reservation of a question of law in terms of s 319 of the Act.

 

The court set aside the convictions and sentences on appeal and remitted the matter to the High Court for trial de novo before another judge.

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