CRIMINAL PROCEDURE – REVIEW – CONDITION OF SENTENCE TOO WIDE AND VAGUE – SENTENCING OF FIRST OFFENDER SHOULD BE FAIR

CRIMINAL PROCEDURE – REVIEW – CONDITION OF SENTENCE TOO WIDE AND VAGUE – SENTENCING OF FIRST OFFENDER SHOULD BE FAIR

The accused persons were each charged with the crime of escaping from lawful custody under the common law. The accused pleaded not guilty to the charge, but the court found them guilty. They were convicted as charged and sentenced as follows:

‘Accused persons are each sentenced to 36 months’ imprisonment of which six months is suspended for a period of five months on condition that accused are each not convicted for escaping from lawful custody under common law, during the period of suspension.’

The matter came before the High Court for review and the court directed a query to the magistrate, inquiring from him what he meant with the sentence he imposed and whether it is not too vague, and further, why accused 1 who was a first offender was given a similar sentence to that of accused 2 who has previous convictions. The magistrate conceded that the sentence is too vague. He further responded that accused 1 being a first offender should not have been given a similar sentence as accused 2 and should have been given a lesser sentence.

SHIVUTE J, (LIEBENBERG J concurring) found that the accused were correctly convicted but took issue with the sentence imposed. The first issue was that the condition of the sentence was too vague. It is an essential requirement of a suspensive condition that it must be formulated in such a way that it does not cause future unfairness or injustice; neither must it be too wide or vague (S v Armstrong (CR 60/2020) [2020] NAHCMD 380 (27 August 2020). This is because non-compliance with a condition of a suspended sentence has consequences for an accused. The imposition of suspensive conditions should be done with proper consideration of the circumstances of the accused and the relevant facilities where the accused is to fulfil the suspensive conditions.

The second issue was that the sentence imposed was unfair towards accused 1 as he was a first-time offender. Benjamin v S (HC-NLD-CRI-APP-CAL-2020/00057) [2021] NAHCNLD 12 (8 February 2021), stated the following:

‘Courts properly exercising their discretion should be striving to impose an appropriate sentence. The trial court either did not exercise its discretion at all or exercised it improperly or unreasonably.’

The magistrates’ court failed to properly exercise its discretion when it came to imposing the sentence.

As a result, the conviction of accused 1 and 2 was confirmed. The sentence imposed in respect of accused 1 was set aside and replaced and antedated accordingly, resulting in the immediate release from custody. The sentence imposed in respect of accused 2 was confirmed but amended accordingly.

S v Van der Westhuizen and Another NAHCMD 14 November 2022