Recent Case: Sentencing
Jurisdiction | South Africa |
Author | James Lund |
Citation | (2000) 13 SACJ 249 |
Pages | 249-265 |
Date | 24 May 2019 |
Published date | 24 May 2019 |
Recent Cases • Vonnisse
249
Sentencing
JAMES LUND
University of Natal, Pietermaritzburg
General Aspects
Appeal
In
S v Salzwedel 1999
(2) SACR 586 (SCA) at 591 Mahomed CJ restated the
test as follows:
'An appeal Court is entitled to interfere with a sentence imposed by a trial court in a
case where the sentence is "disturbingly inappropriate", or totally out of proportion
to the gravity or magnitude of the offence, or sufficiently disparate or vitiated by
misdirections of a nature which shows that the trial court did not exercise its
discretion reasonably.'
The learned Chief Justice added that an over-emphasis of the personal
circumstances of the accused (mainly the influence of a culture of racism)
and the underestimation of the gravity of the offence (a brutal, unprovoked
murder) constituted a misdirection that justified setting aside the trial court's
sentence and the substitution of a substantially heavier sentence on appeal.
Where there is an appeal against sentence the test is the same whether it is
the accused who appeals against the severity of a sentence or the State that
appeals against the leniency of a sentence; the power of the court of appeal
is not more limited in the latter case: see
S v Kgosimore
(SCA) at 241 in which Scott JA pointed out that the underlying purpose of the
various formulations was essentially the same: to determine whether there
(2000) 13 SACJ 249
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SACJ •
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SAS
was a proper and reasonable exercise of discretion by the court imposing the
sentence.
In
S v Sadler
2000 (1) SACR 331 (SCA) Marais JA remarked (at 334-5) that
while the traditional test is easy enough to state, it is less easy to apply. The
comparison involved in the notion of a 'striking' or 'startling' or 'disturbing'
disparity might be quantitative (e g, the length of a prison sentence) or
qualitative (such as custodial versus non-custodial). Problems of comparison
arose in either category. After mentioning examples of these problems, the
learned Judge of Appeal expressed the view that for interference to be
justified, the court of appeal must conclude that its 'own choice of penalty is
the
appropriate penalty and that the penalty chosen by the trial court is not';
it is not sufficient that the appeal court's choice would have been
an
appropriate penalty.
Reconsideration of a sentence in terms of s 276A(3) of the
Criminal Procedure Act
Section 276A(3) creates an extraordinary remedy, which though neither an
appeal nor a review of a prior sentence, may, it seems, in effect operate as
such.
S v Van Rooyen
2000 (1) SACR 372 (NC) was an application by the
Commissioner of Correctional Services in terms of the above section for
the conversion of the balance of a sentence of 12 years' imprisonment into
one of correctional supervision. At the time of this application, some five-
and-a-half years of this sentence had been served by Van Rooyen, who had
been convicted in 1994 of fraud involving R25,2 million. Amnesty and special
reduction had also reduced the balance of the sentence by a further 2 years.
Kgomo J pointed out (at 374) that whilst the application might be for
conversion to correctional supervision, ss (3)(e) makes it clear the court is
not confined to that, but must reconsider the sentence and impose any
proper sentence. The sentence must be reconsidered in the light of all the
circumstances, including both those that existed at the time of the trial (such
as the nature and circumstances of the crime) and also new factors that have
since arisen.
Although there was a variety of positive factors relating to Van Rooyen's
conduct after his trial, the main factor that persuaded Kgomo J to alter
the sentence was the disparity between Van Rooyen's sentence and the
sentences imposed on his co-offenders who had been convicted and sen-
tenced in a later separate trial. This lead the learned Judge to suspend 4 years
of the 12 years originally imposed (instead of acceding to the application to
convert the balance into correctional supervision, which would have
operated harshly). This conclusion on disparity was reached despite the
fact that when the co-offenders were tried, the judge in that case had
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