IMPRISONMENT – NON-PAROLE PERIOD – NOT RESORTED TO LIGHTLY

S v JIMMALE AND ANOTHER 2016 (2) SACR 691 (CC)

 

Sentence — Imprisonment — Non-parole period — Section 276B of Criminal Procedure Act 51 of 1977 — Imposition of — Not to be resorted to lightly and not without inviting oral argument — Relevant factors justifying order to be properly proved.

 

The applicants applied for leave to appeal against a part of the sentences imposed upon them in the High Court for a murder committed in the course of a robbery. They were sentenced to 25 years’ imprisonment and it was ordered in terms of s 276B of the Criminal Procedure Act 51 of 1977 that they were only to be considered for parole after having served 20 years of their sentence. They contended that the imposition of the non-parole period was a misdirection, since they had not been afforded an opportunity to make representations before it was made, and that the trial court had made no findings as to the existence of exceptional circumstances to warrant such an order.

Held, that a s 276B(1)(b) non-parole order should not be resorted to lightly and not without inviting oral argument on the issue, as the imposition of such an order had a drastic impact on the sentence to be served.

Held, further, that the trial court seemed to have operated from the premise that the applicants were incorrigible and beyond redemption, but that did not follow from the fact that they had committed a horrendous crime. Their incorrigibility had to be established as a fact relevant to the later consideration of parole.

Appeal upheld and non-parole order set aside.

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