MINIMUM SENTENCE – COMPELLING AND SUBSTATNTIAL CIRCUMSTANCES – INTERFERENCE BY APPEAL OURT

S v TAFENI 2016 (2) SACR 720 (WCC)

Sentence — Prescribed minimum sentences — Criminal Law Amendment Act 105 of 1997 — Substantial and compelling circumstances — Power of appellate court to interfere with finding by trial court on existence of such circumstances — Position analogous to discretion of court to grant interdictory relief — Court not restricted from interfering only if able to identify material misdirection or failure of exercise of discretion.

 

In an appeal against a sentence of 15 years’ imprisonment for murder, where the appellant had stabbed and killed a woman with whom he was having an extramarital affair, the state contended that the court would only be entitled to interfere with the prescribed minimum sentence imposed in terms of s 51(3) of the Criminal Law Amendment Act 105 of 1997 if there were a material misdirection on the part of the sentencing magistrate.

Held, that, while the approach contended for by the state was generally correct in regard to appeals against sentence, it would be counterintuitive to apply it when the initial question was not whether the sentence itself was vitiated by such a material misdirection, but whether the court was right or wrong to have determined on the facts that there were no substantial or compelling circumstances justifying a departure from the prescribed minimum sentence. It was clear that the determination of an appropriate sentence entailed the exercise of judicial discretion in the narrow or strict sense of the word (sometimes termed ‘true discretion’). It was for that reason that an appellate court’s powers to interfere were circumscribed. (Paragraph [3] at 723a – c.)

Held, further, that the exercise of a narrow discretion was not involved in the making of a finding by a sentencing court in terms of s 51(3). While the range of relevant circumstances falling to be taken into account would in the nature of such matters necessarily be disparate and incommensurable, there was not a range of equally permissible options available to the decision-maker. The court was either properly satisfied as to the existence of substantial and compelling circumstances, or it was not. (Paragraph [4] at 723d – f.)

Held, further, that the position was analogous to that which pertained in regard to a court’s discretion in respect of the grant of interdictory relief which involved the exercise of its discretion in the wide sense, and the appeal court was thus less constrained in its ability to interfere than it would have been had the discretion involved been one in the true sense. (Paragraph [5] at 723f – h.)

Held, further, that neither principle nor policy supported one court holding that substantial and compelling circumstances existed and another concluding on identical facts that they did not, and a court of appeal not being able to interfere with either’s choice. Thus the court was not restricted from interfering only if it were able to identify a material misdirection or a failure of the exercise of discretion. (Paragraphs [7] – [8] at 725c – 726d.)

Held, further, that, having regard to all the circumstances of the case, the magistrate was wrong to have found that there were no substantial and compelling circumstances to depart from the prescribed minimum sentence of 15 years’ imprisonment. The imposition of such a sentence was manifestly disproportionate if proper regard were had to the circumstances of the commission of the offence and the personal characteristics of the appellant. It was accordingly necessary to set aside the sentence imposed and replace it with a sentence of 10 years’ imprisonment, of which two years were suspended for five years.

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