COMBINED SENTENCES UNDESIRABLE

S v RANTLAI 2018 (1) SACR 1 (SCA)

Sentence — Combined sentence — Undesirability of reiterated.

On conviction in a regional magistrates’ court of three counts of robbery, the court imposed a globular sentence of 20 years’ imprisonment for the three counts taken as one for the purposes of sentence. On appeal to the High Court against the conviction and sentence, the court set aside the conviction on one of the counts but left the sentence intact. In a further appeal, the appellant contended that, having had one of the convictions set aside, he deserved to get the benefit of that conviction falling away reflected in his sentence.

Held, that although there was no bar to imposing a globular sentence, it was imperative for judicial officers to consider the desirability of such a sentence carefully before imposing it, bearing in mind the kind of problems it might cause. The present case was a classic example of the kind of serious, if not intractable, problems which would occur on appeal where some counts were set aside and there was a need to alter the globular sentence imposed. Although useful at times, such a sentence had to be imposed in exceptional circumstances only. (See [15].)

Held, further, that what had happened in the present case amounted to an injustice and the sentence had to be altered. An appropriate method of doing this would be to sentence the appellant to 15 years’ imprisonment on each of the remaining two counts, such sentences being ordered to run concurrently.

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NON-PAROLE PERIOD ONLY ORDERED IN EXCEPTIONAL CIRCUMSTANCES

S v NTOZINI AND ANOTHER 2017 (2) SACR 448 (ECG)

Sentence— Imprisonment — Term of — Non-parole period — Order in terms of s 276B of Criminal Procedure Act 51 of 1977 to be made only in exceptional circumstances — Court sentencing young first offenders to terms of imprisonment and specifying that they be trained in certain skills for duration of sentence — Such sentence infringing provisions ofs 276B(1) and falling foul of separation of powers doctrine.

 

The two accused, both young first offenders, were respectively convicted in a magistrates’ court of housebreaking with intent to steal and theft, and to receiving stolen property in contravention of s 37(1) of the General Law Amendment Act 62 of 1955. Accused 1 was sentenced to three years’ imprisonment and it was ordered that he serve his sentence at Cradock prison where he was to be enrolled for courses offered by the said institution ‘(w)oodwork/plumbing etc. for the duration of his sentence’. Accused 2 was sentenced to two years’ imprisonment and it was further ordered that he serve his sentence at the same prison and that he be enrolled in ‘skills/trade courses’ for the duration of his sentence. On review,

Held, that the magistrate had erred in making an order in terms of s 276B(1) of the Criminal Procedure Act 51 of 1977 (the CPA) without providing both the state and the accused an opportunity of addressing it on whether or not a non-parole period ought to be imposed. Such an order should only be made in exceptional circumstances and when the sentencing court was possessed of facts that would justify it. (See [15] – [16].)

Held, furthermore, that, in imposing the sentences, the magistrate had also exceeded the maximum non-parole period set out in s 276B(1)(b), namely two-thirds of the term of imprisonment, and had fallen foul of the separation-of-powers doctrine by prescribing where the accused person had to serve his sentence and specifying the courses to be undertaken during the serving of the sentence. (See [20] – [21].)

Held, further, that the sentences, even trimmed of the further non-parole period orders and those relating to the prison and manner in which their sentences were to be served, were shockingly severe. An appropriate sentence in respect of accused 1 would be one year’s imprisonment of which seven months were suspended for three years, and, in respect of accused 2, eight months’ imprisonment of which four months and six days were to be suspended for three years.

CHILD PORNOGRAPHY SERIOUS OFFENCE REQUIRING CUSTODIAL SENTENCE

S v AR 2017 (2) SACR 402 (WCC)

 

Sexual offences — Child pornography — Sentence — Accused guilty of numerous counts relating to child pornography, sexual assault and using children for pornography — Accused 36-year-old engineer who photographed friends’ and neighbours’ children whilst sleeping, after partially undressing them — Seriousness of offence requiring custodial sentence— Sentenced to 10 years’ imprisonment of which two were suspended.

 

The respondent was convicted in a regional magistrates’ court after having pleaded guilty to 2130 counts relating to child pornography and sexual exploitation of children. The counts included contraventions of s 5(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (sexual assault); s 20(1) of Act 32 of 2007 (the use of a child for child pornography); and of s 24B(1)(a)(b) and (c) of the Films and Publications Act 65 of 1996 (possession, creation and importation of child pornography). Fourteen of the counts attracted a minimum sentence of10 years’ imprisonment under part III of sch 2 to Act 105 of 1997, but the magistrate found that there were substantial and compelling circumstances justifying a lesser sentence; and imposed a term of eight years’ imprisonment, wholly suspended for five years (all the counts were taken together).

The state appealed against the sentence on the basis that it was too lenient, inappropriate and disproportionate to the crimes committed, the interests of society and the respondent’s personal circumstances.

The offences came to light when the respondent went on holiday and asked his friend and neighbour to look after his house. The neighbour obtained access to the respondent’s computer where he found images of his 8-year-old son, as well as a 6- and 9-year-old girl, the daughters of another friend, which depicted the children with their private parts exposed. There were also images of the respondent’s sister-in-law, who lived with the respondent and his wife, and at the time was between 13 and 15 years old. According to the respondent, she was not shy to expose her naked body to him. The photographs of the other children had been done without their knowledge or whilst asleep. There were also videos taken of the respondent’s son whilst in the bath with a friend, and the pictures concentrated on the private parts of the young friend. A number of video recordings were made of the respondent’s sister-in-law and in one she was encouraged to manually stimulate herself. The respondent’s psychologist testified that the respondent, who was a 36-year-old engineer, was not a paedophile as there was no evidence of grooming or any sexual encounters with his victims. According to the state’s expert witness, a professor of psychology, the most recent Diagnostic and Statistical Manual of Mental Disorders’ classification of a paedophilic disorder did not require physical sexual contact between the offender and victim.

Held, that the magistrate had misdirected herself in a number of respects, inter alia, in regarding it as mitigating that the complainants were unaware of the nature of the sexual assaults because they were asleep. This could hardly be regarded as a factor that diminished the seriousness of the offence, and the respondent had in fact touched his victims. Similarly, that the magistrate had found that the respondent’s sister-in-law was a willing participant and the pictures and videos taken of her had no negative impact on her as a victim, was clearly wrong. The videos and pictures of her could not be regarded as harmless or less serious since she was at the time pre-pubescent, fully trusted the respondent and could hardly have appreciated the full psychological impact of her actions at the time. Common sense dictated that the respondent must have, over a period of time, created a false sense of security and trust with her (see [37] – [38]).

Held, further, that the magistrate had erred in finding that the state had failed to prove any kind of propensity on the part of the respondent to commit offences of that nature. On the established facts there was no doubt that he had such a propensity. He had physically abused some of his victims whilst they were asleep and had exploited his victims when they were at their most vulnerable. To suggest that he was not a danger to society was simply misguided (see [39]).

Held, further, that a non-custodial sentence would not achieve an appropriate balance between the seriousness of the offences and the interests of society but would rather focus unduly on the rehabilitation of the respondent. An appropriate sentence would be one of 10 years’ imprisonment of which two years were suspended (see [50] – [52]). Sentence altered accordingly.

ADMONITION TO SPEAK TRUTH – DUTY OF COURT

S v BAADJIES 2017 (2) SACR 366 (WCC)

Evidence — Witnesses — Calling, examination and refutation of — Oath — Admonition to speak truth — Duties of court — No procedural requirement that court first had to enquire of witness whether she understood what oath was— Criminal Procedure Act 51 of 1977, s 164(1).

Sentence — Imposition of — Global sentence imposed in respect of multiple offences — When appropriate — Inappropriate in circumstances where vastly differing sentences required — Such sentence might also present difficulties on appeal.

 

The appellant was convicted in a regional magistrates’ court of two counts of contravening s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 in respect of the sexual penetration of a 7½-year-old girl, and one count of sexual violation of the same girl in contravention of s 5(1) of the same Act. The convictions were taken as one for the purposes of sentence and he was sentenced to life imprisonment.

On appeal, his counsel contended that the evidence of the complainant had been improperly admitted as she had not been properly cautioned in terms of the Criminal Procedure Act 51 of 1977 (the CPA) — she had not been specifically asked whether she understood what the concept of an oath embraced.

Held,that there was no procedural requirement that the court first had to enquire of the witness whether she understood what the oath was and it was left up to the court to assess whether this was probable or not. The magistrate had obviously satisfied herself as to the inability of the complainant to formally take the oath and had correctly applied the provisions of s 164 of the CPA, thereby ensuring that the evidence was admissible. Most importantly, the trial court had formally admonished her to speak the truth as required by that section. (See [30] – [31].)

Held, as to sentence, that the court had erred in imposing one global sentence in the circumstances. The assault count justified a lesser sentence and the legislature had seen fit to prescribe minimum sentences of life imprisonment for the sexual penetration of a minor. It was appropriate that each offence be dealt with individually, particularly because the court had to assess whether substantial and compelling circumstances, to avoid the ultimate sentence, had been established in respect of each contravention. The method adopted by the magistrate might also present difficulties on appeal if one or more of the convictions were set aside. (See [37] – [38].) The sentence was accordingly altered to one of five years’ imprisonment on the conviction of sexual assault, and to life imprisonment in respect of each of the two remaining counts.

ADDRESS ON SENTENCE NOT TO BE DONE FROM WITNESS BOX

S v THETHA 2017 (2) SACR 363 (ECG)

Sentence — Addressing court on sentence — Accused not legally represented — Magistrate asking accused whilst still in witness box whether he had anything further to say to court before sentence — Such not amounting to compliance with s 274 of Criminal Procedure Act 51 of 1977.

The accused was convicted of theft in a magistrates’ court and gave evidence in mitigation of sentence. Whilst still in the witness box, the magistrate asked him whether there was anything else he wanted to tell the court before sentence.

The court held on review that the procedure adopted by the magistrate did not amount to compliance with s 274 of the Criminal Procedure Act 51 of 1977 (the CPA) because the unrepresented accused may have construed that to have meant any other factors, apart from those already mentioned in his evidence. This was also indicated by the fact that the magistrate then called upon the prosecutor to cross-examine the accused. It was not made clear that the accused was required to address the court as to what type of sentence, in his view, might be appropriate and why. (See [7].) The conviction was upheld but the matter was remitted back to the magistrate for proper compliance with the section.

LIFE IMPRISONMENT FOR FATHER RAPING DAUGHTER

S v MD AND ANOTHER (2) 2017 (1) SACR 654 (ECB)

Rape— Sentence — Rape of child by father — Minor child — Even though accused was first offender and productive member of society, with prospects of rehabilitation, departing from prescribed minimum sentence would be for flimsy reasons.

Rape— Aiding and abetting rapist — Sentence — Mother assisting father in rape of minor child — Sentence of 10 years’ imprisonment imposed.

 

Accused 1 and 2 were the parents of nine-year-old girl who was raped on two occasions by accused 1 (the father), with the assistance of accused 2 (the mother) on the second occasion. The matter was postponed for purposes of sentence after they were convicted. The pre-sentence reports revealed that accused 1 was43-year-old first offender who cohabited with accused 2, with whom he had two children, including the complainant. He was gainfully employed as general worker and was the sole breadwinner of the household. Accused 2 was 37 years old and the recipient of disability grant. She was also first offender and unemployed. It was contended that there were substantial and compelling circumstances justifying the imposition of lesser sentence than life imprisonment since accused 1 was productive member of society, working and supporting his family and had good prospects of rehabilitation.

Held, that were the court to uphold the contentions advanced on behalf of accused 1, the court would be departing from the prescribed minimum sentence lightly, and for flimsy reasons (see [13]).

Held, further, that in the circumstances, sentence of life imprisonment had to be imposed on accused 1 as there were no substantial or compelling circumstances present (see [12] and [16]).

Held, further, that sentence of 10 years’ imprisonment would be appropriate in respect of accused 2.

CORRUPTION SENTENCE – INVOLVEMENT OF POLICE OFFICER AGGRAVATING

S v SETLHOLO 2017 (1) SACR 544 (NCK)

 

Corruption — Sentence — Police officer soliciting bribe from person who had been lured into fake illicit diamond transaction — Fact that perpetrator a police officer an aggravating factor — Sentence of 10 years’ imprisonment confirmed on appeal.

 

The appellant, a 23-year-old police officer, appealed against his sentence of 10 years’ imprisonment imposed for corruption and fraud, his appeal against the convictions previously having been dismissed. The convictions came about as a result of his participation in a misrepresentation to a complainant who was the potential client in an illicit diamond sale. The appellant and his cohorts pretended to the complainant at the crucial moment that they were part of a police trap and that he would be arrested and charged for the offence, but could avoid this by paying them R50 000. The appellant accompanied the complainant to an ATM where the latter drew R10 000. An arrangement was made that he would later pay a further R40 000 and be provided with the police docket. The complainant, however, approached the police and the appellant was arrested when he received the rest of the money. It was contended for the appellant that the sentence of 10 years’ imprisonment for a youthful offender such as him was excessive.

Held, that the appellant had been fortunate in that the trial magistrate had not taken into account the minimum-sentencing regime, which required a minimum sentence of 15 years’ imprisonment if no substantial and compelling circumstances were found to exist, as there was no reference in the charge-sheet to the applicability of that sentencing regime, nor was any mention made of it at the commencement of the trial. (Paragraph [13] at 550b–e.)

Held, further, that the fact that the appellant was a police offiicer was an aggravating factor as he was supposed to be vigilant and protect the community against crime. There could be no doubt that the corrupt and fraudulent activities in the present case had been carefully planned.

The appellant had played a significant role in the execution of the bogus police operation and had had ample opportunity to reconsider his actions. He was a gainfully employed public servant and there had been no need for him to engage in any fraudulent and corrupt activities. The sentence was furthermore not out of kilter with the sentence that the court itself would have imposed and there were accordingly no grounds for the court to interfere with the sentence on appeal. The appeal was dismissed.