S v MOTLOUNG 2016 (2) SACR 243 (SCA)
Appeal — Against sentence — Powers of court on appeal — When appellate court may intervene — May do so when there is material misdirection by sentencing court — In absence of such, it may intervene when disparity between trial court’s sentence and sentence which appellate court would have imposed is shocking, startling or disturbingly inappropriate — Law on issue reiterated — Sentence of 14 years’ imprisonment for murder, of which 6 years suspended, increased on appeal where there were misdirections by trial court and sentence held to be startlingly inappropriate — Sentence increased to 15 years’ imprisonment.
Sentence — Imposition of — Court giving directions to parole board on dealing with unexpired portion of sentence on previous conviction — Such constituting interference with parole board’s powers — Court imposing sentence for one set of crimes cannot impose directions on parole board where complexities of concurrence of sentences and cumulative effect of other multiple sets of crimes not before sentencing court — Such direction set aside by appellate court.
Arms and ammunition — Unlawful possession of firearm and ammunition in contravention — Whether sentencing provisions of s 51(2) of Criminal Law Amendment Act 105 of 1997 impliedly repealed by Firearms Control Act 60 of 2000 — No conflict between sentencing regimes of the two Acts — Accordingly not falling into exception where later statute repeals earlier one — No indication that Firearms Control Act intended to repeal s 51(2) of earlier Criminal Law Amendment Act.
The respondent had been convicted in a High Court of murder in terms of s 51(2) of the Criminal Law Amendment Act 105 of 1997 and of the unlawful possession of a semi-automatic firearm and ammunition. He was sentenced to 14 years’ imprisonment for the murder, 6 years of which were suspended for a period of 5 years. In respect of the unlawful possession of a firearm and ammunition, which were taken together for the purpose of a sentence, 6 years’ imprisonment, half of which was suspended for a period of 5 years, was imposed. These sentences were ordered to run concurrently. The respondent was thus sentenced to an effective period of 8 years’ imprisonment. In addition the High Court ordered that in respect of the sentence on the murder charge —
‘eight years . . . are to run concurrently with the existing sentence you are serving in relation to your conviction which has already been mentioned and that any parole that may be implemented or any other reduction in relation to the period to be served in relation to that conviction is to apply to this as well’.
The state appealed against the sentence and contended that the sentence of 8 years for murder was so inappropriate that it induced a sense of shock. The issues for determination on appeal were inter alia the sentence imposed for murder, the order directing the parole board how to deal with the unexpired portion of a sentence in respect of a previous conviction, and the implied repeal of the sentencing portion for unlawful possession of firearms, of s 51(2) of the Criminal Law Amendment Act, by the Firearms Control Act 60 of 2000.
Held, that the law was settled on when an appellate court may interfere with a sentence imposed by a lower court. It could only do so when there was a material misdirection by the sentencing court. But it may interfere with the exercise by the sentencing court of its discretion, even in the absence of a material misdirection, when the disparity between the sentence imposed by the trial court and that which the appellate court would have imposed, had it been the trial court, was ‘so marked that it [could] properly be described as shocking, startling or disturbingly inappropriate’.
Held, further, that there were several misdirections in the judgment of the High Court. The sentence was also startlingly inappropriate, regard being had to the serious aggravating circumstances present in the case.
Held, further, that the sentence did not strike the correct balance between the relevant factors. Interference on appeal was therefore warranted. A proper balancing of the relevant aggravating and mitigating circumstances would justify a sentence of 15 years’ imprisonment.
Held, further, as to the court a quo’s direction to the parole board, that this was an interference with the parole board’s powers. (Paragraph  at 249c.)
Held, further, that a court imposing a sentence for one set of crimes could not impose directions on the parole board where the complexities of the concurrence of sentences and cumulative effect of the other multiple sets of crimes were not before the sentencing court. The difficulties that arose were self-evident. The problem became even more stark when a court sought to assess the complex features arising from a breach of the parole conditions of the previous offence, and postulated how the unexpired portion of the sentence had to be dealt with by the court to which the respondent had to return regarding the first offence.
Held, further, that the order in respect of the concurrent running of the sentence on the murder count and in respect of the implementation of parole or any other reduction in sentence had to be set aside.
Held, further, as to the question whether the Firearms Control Act 60 of 2000 implicitly amended s 51(2) of the Criminal Law Amendment Act 105 of 1997, that the words ‘any other law’ in s 52(2) had to be given their plain meaning, which in this case had to include the Firearms Control Act.
Held, further, that, upon a proper construction of the two statutes, there was no conflict between the two sentencing regimes and they therefore did not fall into the exceptions where a later statute repealed an earlier one.
Held, further, that, in relation to these two statutes, there was no indication that the Firearms Control Act intended to repeal the earlier Criminal Law Amendment Act. Accordingly the court a quo erred in its finding that the Firearms Control Act repealed s 51 of the Criminal Law Amendment Act. Appeal upheld.