POSSESSION OF FIRE ARM – MINIMUM SENTENCE

Delport v S [2016] 2 All SA 504 (WCC)

Criminal law – Possession of prohibited firearm – Contravention of section 4(1)(a) of the Firearms Control Act 60 of 2000 – Minimum sentence regime created in terms of the Criminal Law Amendment Act 105 of 1997 prescribes a minimum sentence of 15 years’ imprisonment upon a first conviction for any offence relating to the possession of an automatic or semi-automatic firearm – Reconciliation with provisions of Firearms Control Act – Court finding that special minimum sentence provisions were intended to trump the general penalty provisions in the Firearms Control Act.

The appellant was convicted of having been in possession of a “prohibited firearm” (a fully automatic firearm) in contravention of section 4(1)(a) of the Firearms Control Act 60 of 2000 (“the Firearms Control Act”), and being in possession of 34 rounds of ammunition without a licence or authority, as required in terms of section 90 of the Firearms Control Act. An effective sentence of 15 years’ imprisonment was imposed.

The present appeal was directed at sentence.

Held – The minimum sentence regime created in terms of the Criminal Law Amendment Act 105 of 1997 (“the Act”) prescribes a minimum sentence of 15 years’ imprisonment upon a first conviction for any offence relating to the possession of an automatic or semi-automatic firearm, explosives or armament. A sentencing court is obliged to comply with the prescribed minimum sentence regime unless it is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in subsections 51(1) and (2) of the Act.

Section 4 of the Firearms Control Act provides, subject to a number of stipulated exceptions, for an absolute prohibition on the possession and licensing of fully automatic firearms. It is clear that the Legislature regards the unlicensed possession of prohibited firearms as a significantly more serious evil than that of the unlicensed possession of semi-automatic firearms, notwithstanding that no distinction is made between the categories in the 1997 Criminal Law Amendment Act. That is evident from the penalty provisions in the Firearms Control Act. Unlawful possession of a firearm (including a semi-automatic firearm) attracts a prison sentence of up to 15 years’ imprisonment, whilst the penalty for unlawful possession of a “prohibited firearm” is imprisonment for up to 25 years. The introduction, with effect from 2004, of a scheme that provided for a maximum sentence of 15 years’ imprisonment for the unlawful possession of a semi-automatic firearm as distinct from the prescribed minimum of 15 years in terms of the Act, with prescribed minimum sentences of 20 years and 25 years, respectively, for second and third-time offenders, gave rise to an argument that the minimum sentence provisions in respect of the offences had been impliedly repealed. In reconciling those differences, the Court approved of case authority to the effect that the special minimum sentence provisions were intended to trump the general penalty provisions in the Firearms Control Act.

Not convinced that the sentences imposed on this case were inappropriate, the Court dismissed the appeal.

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