S v SMITH 2017 (1) SACR 520 (WCC)


Sentence — Conspiracy — Prescribed sentence for principal offence not starting point for assessing appropriate sentence for conspiracy to commit offence.

Sentence — Factors to be taken into account — Remorse — Expression of remorse not essential requirement for court to exercise mercy.

Murder — Conspiracy to commit murder — Sentence — Appellant convicted of conspiracy to murder his business partner — Appellant’s co-conspirator, his ex-girlfriend, having been sentenced in plea-and-sentence agreement with state to wholly suspended sentence for same offence — In appellant’s appeal, court holding that latter sentence inappropriately lenient and imposing sentence of seven years’ imprisonment of which three years suspended.


The appellant appealed against his conviction and sentence in the magistrates’ court for conspiracy to murder. He was sentenced to nine years’ imprisonment of which two years were suspended. His conviction was based largely on the evidence of his former girlfriend who had entered into a plea-and-sentence agreement with the state and was sentenced for same to a wholly suspended sentence of two years’ imprisonment. The testimony revealed that the appellant and the complainant were the joint owners of a security business but that the appellant had misappropriated some of the business’ income for his own account. The complainant confronted him and after some time the appellant agreed to repay him. The appellant and his girlfriend nonetheless devised a plan to kill the complainant. In an authorised police-sting operation the girlfriend was arrested after handing over money to the person who pretended to be the assassin. The court, after analysing the evidence on the merits, upheld the conviction and then considered the appeal against sentence.

Held, that the magistrate’s opinion that the prescribed sentence for murder was a starting point in assessing an appropriate sentence for conspiracy to murder was incorrect. The fact that the permissible sentencing range for conspiracy to commit a crime was determined by the permissible sentencing range for the crime itself did not mean that the starting point was the sentence which would have been imposed if the crime had been successfully committed. (Paragraph [101] at 528h–i.)

Held, further, that the magistrate had also erred in finding that remorse was the ‘flipside of the coin of mercy’ and that she could not give consideration to the element of mercy where the appellant had not expressed remorse. (Paragraph [107] at 530b–c.)

Held, further, that there was an enormous difference between the sentence imposed on the appellant’s co-conspirator and the sentence imposed by the court a quo on the appellant in circumstances where there was not a large gulf between their respective culpability. A wholly suspended sentence for the appellant’s girlfriend was, however, inappropriately lenient. (Paragraph [110] at 530j–531b.)

The court took into consideration the appellant’s clean record, his personal circumstances, and the lengthy delay in the completion of the trial, and came to the conclusion that an appropriate sentence would be one of seven years’ imprisonment of which three years should be suspended on appropriate conditions. (Paragraph [113] at 531g.)


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