COURT IMPOSING SUSPENDED SENTENCE MAY ORDER CONCURRENCY

New law!

S v CHAKE 2016 (2) SACR 309 (FB)

Sentence — Suspended sentence — Putting into operation of — Sentence of imprisonment for offence which triggered putting into operation of suspended sentence of imprisonment — Concurrence of two sentences — Which court can order that such sentences should run concurrently — Court imposing sentence in absence of relevant (trial) court empowered to order earlier suspended sentence to run concurrently with new or any other sentence — Earlier interpretation of legislation to effect that only ‘trial court’ had power to order concurrency of sentences incorrect — Constitutional standards of legality, equality, proportionality and the protection of human dignity in relation to sentencing applied — Criminal Procedure Act 51 of 1977, ss 275, 276(1)(b), 280(2), 297(1)(b) and 297(9)(a)(ii).

 

The accused had in 2010 been convicted of attempted housebreaking with intent to steal and sentenced to 1 year’s imprisonment which was conditionally suspended for 5 years in terms of s 297(1)(b) of the Criminal Procedure Act 51 of 1977. In 2012 the accused was convicted of housebreaking with intent to steal and theft and sentenced to 5 years’ imprisonment in terms of s 276(1)(b). Since the second offence was committed during the 5-year suspension period of his 1-year term of imprisonment for the first conviction, it called for the putting into operation of the suspended sentence. The state only brought an application in terms of s 297(9)(a)(ii) to do so two years later, in 2014. The magistrate, in putting the suspended sentence into operation, applied s 280(2) of the Act to order the concurrent running of the newly enforced suspended first sentence with the second sentence, contrary to the precedent set by a line of cases starting with S v Strydom 1967 (2) SA 386 (N). These cases had held, with reference to the interpretation of s 280(2), that a court which brought into operation an earlier suspended sentence was not empowered to order that sentence to run concurrently with a new or any other sentence. In direct contrast therewith, however, a ‘trial court’ which convicted the accused of a subsequent offence which invoked the enforcement of a previously suspended sentence, might order its sentence to run concurrently with the previously suspended sentence. The magistrate submitted her decision to invoke s 280(2) to order concurrency to a High Court for special review with a submission that the premises for the conclusions and precedent in the case law, namely that the Act makes no provision for a court’s competence to order concurrency outside of s 280, were wrong, and that the narrow interpretation of the ‘court’ referred to in s 280 as ‘the trial court’ brought about unfair and unconstitutional consequences for the accused.

Held, that prohibiting the enforcing court from ordering its newly enforced sentence to run concurrently with an already imposed triggering sentence, seemed illogical. The enforcing court was last to impose sentence and needed to consider all the circumstances, including the cumulative effect of the enforced sentence with already existing sentences, if concurrency had not been ordered.

Held, further, that it was not only reasonable but vital that the court putting the suspended sentence into operation had the discretion to order concurrency, especially in instances such as the present case.

Held, further, that the hearing for the enforcement of the suspended sentence may occur up to five years down the line when circumstances had changed since the suspended sentence was imposed, as in the present case, and when it would be essential for the enforcing court to have the discretion to order concurrency if the cumulative effect proved to be disproportionate to the crime, and the ‘trial court’ has not exercised its discretion in terms of s 280(2) to order concurrency. (Paragraph [6.10] at 324f.)

Held, further, that the words ‘the court’ in s 280(2) therefore referred not only to the ‘trial court’ which imposed the triggering sentence, but also to the court which subsequently put the suspended sentence into operation if the trial court failed to apply s 280(2).

Held, further, that the paramount constitutional objective was the protection of the accused’s right to a fair trial. Whether it was during sentencing after a trial, or during punishment for breaching the suspensive conditions, the accused needed to be protected against the cumulative effect of the enforcement of the suspended sentence. That meant that he should have the same right to the judicial exercising of the relevant court’s discretion to ensure a fair trial, regardless of whether he was being imprisoned after conviction by the trial court or whether he was being imprisoned as a result of the putting into operation of his previously suspended sentence by the enforcing court.

Held, further, that the current strict interpretation of ‘the court’ as only ‘the trial court’ which imposed sentence after conviction of the triggering offence was erroneous and lead to unconstitutional results.

Held, further, that the interpretation of the law in the cases following upon S v Strydom resulted in findings which did not comply with general constitutional standards of legality, equality, proportionality and the protection of human dignity. The consequences of the rigid, narrow interpretation of the law and the too literal application of that precedent negated the accused’s right to an unfettered discretion of the enforcing court to impose a proportional punishment suited to the current circumstances of that particular case.

Held, further, that the legislation should be extended to make express provision for the jurisdiction of s 297 and s 275 courts to apply s 280(2) in appropriate circumstances. That would prevent the present confusion and unconstitutional results caused by the pre-constitutional interpretation of s 280.

Held, accordingly, that a s 297(9)(a)(ii) or, for that matter, a s 275, court which imposes sentence in the absence of the relevant (trial) court, is empowered to order that an earlier suspended sentence which it brings into operation is to run concurrently with a new or any other sentence because its implementation complies both procedurally and substantively with general constitutional standards such as legality, equality, proportionality and the protection of human dignity.

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