S v SETSHEDI 2017 (1) SACR 504 (GP)


Sentence — Prescribed minimum sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — Charge-sheet not reflecting applicability of Act — Effect of on sentence on appeal set out.


In an appeal against convictions and sentences for murder and the illegal possession of a firearm and ammunition the court was required — after dismissing the appeal against the convictions (except in relation to two counts in respect of which there had been a duplication of convictions) — to determine the effect of a failure to mention in the charge-sheet the applicability of the provisions of s 51 of the Criminal Law Amendment Act 105 of 1997. (The Act was mentioned for the first time when counsel for the appellant addressed the court on sentence.)

Held, that it was settled law that the failure to warn the accused or mention the applicability of the minimum-sentence regime was a fatal irregularity resulting in an unfair trial in respect of sentence, and the appellate court had to consider sentence afresh. This meant that the court had to disabuse itself of what the trial court had said in respect thereof and impose a sentence which it thought was suitable. In the circumstances, it was inappropriate to apply the approach that an appellate court ought to be slow to interfere with the sentence unless it was shockingly inappropriate or induced a sense of shock. (Paragraph [61] at 514c–517a.)

The court accordingly applied these principles and proceeded to sentence the appellant afresh and reduce the sentence.


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