Sentencing an accused whose legal representative fails to participate meaningfully in the process: A discussion of S v Samuels 2011 (1) SACR 9 (SCA)

• Date: 16 August 2019
• Published date: 16 August 2019

Sentencing an accused whose legal

representative fails to participate

meaningfully in the process: A

discussion of S v Samuels 2011 (1)

SACR 9 (SCA)

NICCI WHITEAR-NEL

University of KwaZulu Natal, Pietermar itzburg

1. Introduction

It is trite that in order to exercise a proper sentencing discretion, the

presiding off‌icer must have suff‌icient relevant information. In the case

of S v Samuels 2011 (1) SACR 9 (SCA) t he Supreme Court of Appeal

(SCA) considered whether the presiding off‌icer has a duty to investigate

mitigating factors where the accused’s legal repres entative neglects to

place such informat ion before the cour t. The SC A also dea lt with the

relevance of a lengthy time delay between the time of the offence and

the f‌inal i mposition of the sentence a nd the relevance of t he changes

that the accused has undergone in that period. The SCA reaff‌ir med

that a balance between the interests of the accused and the interests of

society must be struck (at para [14]), and noted that in casu there was

an excessive devotion to society’s interest s, while ignor ing importa nt

factors ser ving to mitigate the s eriousness of the accused’s cri me (at

para [15]). The SCA criticised the failure of the trial court and the court

a quo to view the broad scope of sentenci ng options with an open

mind.

2. Judicial history

The appellant, a 21-year-old f‌irst offender, pleaded guilty and was

convicted on one count of possession of an unlicensed 9m m pistol

in contravention of section 2 read with section 39(2) of t he Arms

and Ammun ition Act 75 of 1969 (at para [1]). He was sentenced to

imprisonment for a period of two years (ibid). He approached the

High Court aggrieved by what he considered to be an unfair sentence.

The High Court concluded th at the appellant’s conduct did not justif y

the sentence imposed on hi m in the court a quo, but nevertheless

considered that a sentence of direct impri sonment was appropriate. It

347

(2011) 24 SACJ 347

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