Recent Case: Sentencing

• Jurisdiction: South Africa
• Citation: (2010) 23 SACJ 159
• Date: 16 August 2019
• Pages: 159-176
• Published date: 16 August 2019
• Author: Stephan Terblanche

Sentencing

STEPHAN TERBLANCHE

Department of Criminal and Procedural Law, Unisa

Sentencing procedures and general principles

General principles

Factors affecting sentencing

The role of diminished responsibility, as a factor that reduces culpabil-

ity, was addressed in a couple of recent judgments. In S v Mnisi 2009

(2) SACR 227 (SCA) the court stressed that, in contrast to temporary

non-pathological criminal incapacity, diminished responsibility does

not exclude culpability, but only reduces such culpability. This reduced

culpability should be ref‌lected in a reduced sentence (at para 4).

Reduced culpability is established based on all the evidence in a case,

even the accused’s say so. In the present matter only M’s statement ex-

plaining his plea of guilty provided the relevant evidential material, but

this statement was not disputed (at para 5; see also at para 33). Such

evidential material should be carefully scrutinised and should be con-

sistent with all the other evidence in the case (at para 5). Mere loss of

temper or f‌lying in a f‌it of rage is not mitigating, as ‘society expects its

members to keep their emotions suff‌iciently in check to avoid harming

others’ (ibid). For purposes of sentencing it is the ‘circumstances that

give rise to the lack of restraint and self-control’ that matter (ibid). In

the present case M shot the deceased while under emotional stress

caused directly by the actions of his wife and the deceased. Apart from

the reduced culpability, diminished responsibility usually also justif‌ies

reduced punishment as the need for deterrence is typically reduced.

Apart from the fac t that such a person will always be less susceptible

to the whole idea of deterrence (at para 35), such offences are often

committed under unusual circumstances which are unlikely ever to

repeat themselves (at paras 8-9).

Recent cases 159

(2010) 23 SACJ 159

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The reduced need for deterrence is also highlighted in S v Marx

2009 (2) SACR 562 (ECG), based on the judgments in S v Shapiro 1994

(1) SACR 112 (A), S v Ingram 1995 (1) SACR 1 (A) and the minority

judgment in Director of Public Prosecutions, Transvaal v Venter 2009

(1) SACR 165 (SCA). The cour t emphasised the striking dictum from

S v Shapiro 1994 (1) SACR 112 (A) at 124, that the ‘concatenation of

circumstances was highly unusual and is unlikely to occur again’.

How the use of alcohol should be ref‌lected in sentences is not

consistently answered in our case law. In S v Raath 2009 (2) SACR 46

(C) at paras 22 et seq the cour t reconsidered the relevant principles,

particularly based on the judgments in S v Cele 1990 (1) SACR 251

(A) and S v M 1994 (2) SACR 24 (A). In terms of these judgments

intoxication ‘can operate’ as a mitigating factor when the consump-

tion of alcohol results in diminished moral blameworthiness (at para

26). Mere consumption of alcohol is not mitigating, but if the mental

faculties or judgement of the offender is impaired by the alcohol, and

such impairment reduces the moral blameworthiness of the offender, it

should be taken as mitigating. Such a (technical) approach is preferred

above an approach in terms of which the offender did things that no

sober person would have done. Whether this is the case is a question

of fact and the present case included substantial evidence that R had

a lot to drink and that he was mentally and physically affected by the

alcohol (at paras 25, 28) — see also Murder below.

The effect of the period that an accused person spends awaiting

trial surfaced again in S v Seboko 2009 (2) SACR 573 (NCK) at para 22,

where the court mentioned previous cases in which an approach was

approved that time spent in prison while awaiting trial is equivalent to

a sentence of twice the same length. Specif‌ic reference was made of S v

Stephen 1994 (2) SACR 163 (W) and S v Brophy 2007 (2) SACR 56 (W).

Majiedt J supported this approach in principle, while at the same time

not necessarily ‘subscribing to the exactitude of the afore-mentioned

equation...’. The origin of the approach that was followed in Stephen

and Br ophy has previously been discussed in ‘Sentencing’ (2008) 21

SACJ 120. A detailed discussion of the issue is found in Roberts ‘Pre-

trial custody, terms of imprisonment and the conditional sentence’

(2005) 9 Canadian Cr iminal Law Review 191-213 (see also Manson

‘Pre-Sentence Custody and the Determination of a Sentence (or How to

Make a Mole Hill out of a Mountain)’ (2004) 49 Criminal Law Quarterly

292; Healy ‘The Effect of Pre-Sentence Custody on Eligibility for a Con-

ditional Sentence’ (2005) 9 Canadian Criminal Law Review 261-271).

A number of issues arise from this discussion. First, it has for years

been the practice in Canadian law to give credit for pre-trial detention

at a ratio of roughly 2:1 (2 years’ credit for each year of pre-trial deten-

tion). Secondly, this is mainly done as the conditions of pre-trial deten-

160 SACJ . (2010) 1

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