Recent Case: Sentencing
| Jurisdiction | South Africa |
| Author | Annette van der Merwe |
| Date | 24 May 2019 |
| Pages | 363-375 |
| Citation | (2016) 29 SACJ 363 |
| Published date | 24 May 2019 |
Sentencing
ANNETTE VAN DER MERWE
University of Limpopo
In this contribution, selected judgment s, reported between June and
December 2016, are reviewed.
1 Sentencing procedures and general principles
1.1 General principles
Factors affecting sentencing
Appeal court judgments often c riticise trial courts of having overlooked
or incorrectly identied a par ticular aggravating factor. It is, however,
equally important, once they a re identied, to attach the corr ect weight
to those factors, as they should inuence the determi nation of an
appropriate sentence (see A van der Merwe ‘In search of sentencing
guidelines for child rape: An ana lysis of case law and minimum
sentence legisl ation’ (2008) 71 THRHR 589 at 593). In DPP, Pretoria
v Alberts 2016 (2) SACR 419 (GP), the court a quo corre ctly identied
all the aggravating factors in a conviction on the posse ssion of child
pornography (in contravention of s 27 of the Films and Publications
Act 65 of 1996), but failed to attach adequate weight to them. They
included the following: the fact that A possessed a vast amount of
child-abuse images that he had collec ted over an extended period;
that the images depicted sexual ly abusive acts including the rape of
children as young as 2 years old; that by collecting the i mages, the
respondent had promoted the production thereof and that his conduct
served to instigate and perpet uate the sexual abuse of children; t hat A
was in the process of ‘ordering’ child pornogr aphy to be created to his
specications; that the crime s were not victimless; and that A had used
a false identity and address to mask his ident ity, which indicated that a
lot of planning and time had gone into the comm ission of the crimes.
The court held that, having viewed the images in q uestion, they could
only be described as depicti ng absolute depravity and were outrageous
in the extreme. When suf ciently weighed, these aggravating factors
should inuence the sentence to be substantially more severe. An
effective sentence of 5 years’ imprisonment was increased to ten years’
imprisonment. (See also J Burchell Pr inciples of Crimin al Law 5ed
(2016) 783-784 for background on the introduction of thi s type of
cr im e.)
Recent Cases 363
(2016) 29 SACJ 363
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