S v PHILLIPS 2017 (1) SACR 373 (SCA)
Corruption — Sentence — Section 26(1)(a)(ii) of Prevention and Combating of Corrupt Activities Act 12 of 2004 — Provision not limiting court’s sentencing discretion by prescribing fine as first option.
Corruption — Sentence — Police officer demanding money from complainant to avoid arrest on false charge — First offender with prospects of rehabilitation sentenced to four years’ imprisonment.
The appellant was a 35-year-old constable in the South African Police Service who had been convicted in a regional court of soliciting and accepting a bribe in contravention of s 4(1)(a)(i)(aa) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (the Act). He was a first offender who was married with three children and had nine years’ flawless service. The offence involved the manufacture of a charge of drinking in public against a university student whom he arrested but later released after soliciting a bribe of R900. He was sentenced to seven years’ imprisonment of which two years were suspended. An appeal to the High Court against the sentence was dismissed. In the present appeal it was contended that s 26(1)(a)(ii) of the Act limited the trial court’s sentencing discretion by prescribing as a first option a fine, and, as a second, imprisonment, and the trial court ought therefore to have first considered imposing a fine rather than direct imprisonment.
The court rejected the appellant’s contention and held that, having regard to the legislative history, context and purpose of the Act, the legislature had not intended to restrict the sentencing discretion of the trial court but rather made it clear that public officers who were convicted of corruption could be dealt with harshly. Section 26(1)(a)(ii) clearly left it in the hands of the sentencing court to impose either a fine or a period of imprisonment. As to a proper sentence, the court held that the trial court had placed undue emphasis on deterrence and failed to give due consideration to the appellant having prospects of rehabilitation and becoming a useful member of society. In the circumstances an appropriate sentence would be one of four years’ imprisonment, which would serve as an adequate deterrent to other police officers who might be tempted to supplement their income with corrupt activities.