SA HC | Lesser Sentence from the minimum can be imposed if “substantial and compelling reasons” exist

South Africa High Court, Free State Division, Bloemfontein: The petition for Leave to Appeal was filed before a Division Bench of C.J. Musi, AJP and O.J. Van Schalkwyk, AJ  against the convictions and sentence for the offence of robbery.

Two appellants – one and six were sentenced to eight-year imprisonment each and ten and twelve years respectively in respect of appellants – two and four. The basis for such a variation was an individual’s involvement in the crime and previous convictions of each of the accused.

Moreover, the minimum sentence for the offence was not imposed. The reason for this as per the Regional Magistrate was that the offences were not coupled with unnecessary violence. Firearms were exposed at the scene of the offences but were not utilized. The Regional Court found the backing in Section 51 (3) (a) of the Criminal Law Amendment Act 105 of 1997, which states that “if any Court referred to in sub-section (1) or (2) is satisfied that substantial circumstances exist which justifies the imposition of a lesser sentence than those prescribed in the subsections, it shall enter those circumstances on the record of the proceedings and thereupon impose a lesser sentence.”

The Statute demands “substantial circumstances” to exist to forego the minimum sentence and award a lesser one. In the State v. Malgas, 2001 (2) (SA) 1222 (SCA), “substantial and compelling circumstances” has been discussed in length and includes the age of an accused or previous convictions. Though, these factors must be weighed together with the aggravating factors of the offence. But over sympathy, aversion to imprisoning first offenders and personal doubts as to the efficacy of the policy implicit in the amending legislation should not qualify. In short, Legislatures have always made a point that for an offence a minimum punishment should be imposed as to maintain balance and consistency.

By relying on the just and reasonable discretion of the Regional Magistrate for imposing a lesser sentence, this Court upheld the conviction and sentences imposed by the Regional Court. [Mogoje Johannes Mogoje v. State, Case Nr: A109/2017, decided on 12-02-2018]

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