S v MHLONGO 2016 (2) SACR 611 (SCA)
Sentence — Imprisonment — Term of — Non-parole period — Section 276B of Criminal Procedure Act 51 of 1977 — Imposition of — Accused to be given notice of court’s intention to invoke provision and had to be heard before such period imposed — Court obliged to give reasons for order.
Rape — Sentence — Evidence to be led by state on sentence — Essential that state acquires victim-impact statement.
The appellant was convicted in a regional magistrates’ court of rape and sentenced to life imprisonment, which was replaced by a sentence of 18 years’ imprisonment on appeal to the High Court. In addition a period of 12 years was imposed — in terms of s 276B of the Criminal Procedure Act 51 of 1977 — during which the appellant could not be released on parole. He appealed further against the sentence and the non-parole period. He contended that no application had been made by the state to fix a non-parole period either before the regional court or before the High Court; that he had not been given notice that the provision would be invoked; and that neither of the parties had been given an opportunity to present argument or evidence for or against the imposition of such a period. The evidence indicated that the appellant had effectively abducted the complainant and subjected her to a night of terror and repeated rapes. She subsequently died, possibly of having being infected with HIV by the appellant as a result of the rape.
Held, that the fixing of a non-parole period was part of a criminal trial and thus had to accord with the dictates of a fair trial, in that an accused had to be given notice of the court’s intention to invoke s 276B of the CPA and that he had to be heard before such non-parole period was fixed. Failure to do so amounted to a misdirection by the sentencing court.
Held, further, that the failure by the High Court to give reasons for its judgment on sentence in respect of the invocation of s 276B was highly prejudicial to the accused. The court was therefore bound to set aside the order and remit the matter to the court a quo to afford the parties an opportunity to address it. (Paragraph  at 617e–g.)
Held, further, as to the sentence imposed by the court a quo, that there was no justification for that court to interfere with the sentence imposed by the regional court. Unfortunately, since the state had failed to cross-appeal, the present court was not at liberty to intervene.
Held, further, that it was disturbing that in the present case the state had failed to obtain a victim-impact statement (VIS) which formed an integral part of the last phase of the trial and was essential for the court in arriving at a decision that was fair to the offender, the victim and the public at large. It served a greater purpose than merely contributing to the quantum of punishment, by giving the sentencing court a balanced view of all aspects, in order to impose an appropriate sentence and to give the victim the only opportunity to participate in the last phase of the trial. The criminal-justice system required the permanent infusion of a VIS into the justice process, and comprehensive guidelines, protocols and model VIS instruments had to be drafted by the National Director of Public Prosecutions in order to achieve this.
Held, further, that it was a travesty of justice that the state had failed to lead expert evidence on the impact of the rapes on the complainant and, in particular, the possible link between her death and having been infected with HIV by the appellant. It was also of concern that it had failed to cross-appeal the sentence and took the initial view that the sentence of 18 years’ imprisonment was appropriate. (Paragraph  at 623b–c.)
Appeal upheld and non-parole portion of sentence deleted and the matter remitted to the court a quo for representations on the desirability of granting such an order.