- June 1, 2023
- |Concise Law Reports (CLR), Criminal Law And Procedure
The accused was convicted of murder and attempted murder on both counts read with the provisions of the Combating of Domestic Violence Act 4 of 2003. At the end of the trial the Court, on the charge of murder, found that the accused had acted with direct intent to kill when he doused the deceased with petrol and set her alight. Similarly, as regards the attempted murder, it was found that the accused equally foresaw the possibility of setting his baby alight whilst being carried by her mother at the time of the incident, thus acting with dolus eventualis. Both counts were committed in a domestic setting in that the deceased and the accused were, as defined in Act 4 of 2003, romantically involved and had a child together (the victim in the attempted murder charge). The Court was then faced with the unenviable task of having to impose a sentence that, in the particular circumstances of this case, would be just and fair.
It was common cause that the offences accused had been convicted of, were committed with a single intent. In light thereof, it was submitted by his counsel that the two counts must be taken together for purposes of sentence whilst at the same time, taking into account the cumulative effect of the sentences imposed. It has however been held that the taking together of counts for sentencing is discouraged and should be reserved for exceptional circumstances. As stated by Corbett JA in S v Immelman 1978 (3) SA 726 (AD) at 728H-729A:
‘In my view, difficulty can also be caused on appeal by the imposition of a globular sentence in respect of dissimilar offences of disparate gravity. The problem that may then confront the Court of Appeal is to determine how the trial Court assessed the seriousness of each offence and what moved it to impose the sentence that it did. The globular sentence tends to obscure this.’
In arriving at an appropriate sentence, the Court must consider the triad of factors comprising the crime, the offender, and the interests of society. In addition, the Court must decide which of the objectives of punishment is best suited to the circumstances, i.e. deterrence, prevention, reformation, and retribution. The purpose of the aforementioned principles is to find a sentence which is just and fair, serving not only the interests of the offender but also that of society. As stated in S v Rabie 1975 (4) SA (AD) at 862G-H ‘punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances.’
In S v Flanagan 1995 (1) SACR 13 (A) at 17e-f the Court held that the interests of society are not served by a sentence which is too lenient. After all, it is the members of society who one day have to accept the accused back in their midst. This process might be troubling when there is a perception that the sentence given to the accused was too lenient and he does not deserve to be allowed back into society. Though the Courts in sentencing should not give in to the expectations of society (at the expense of the accused or the interests of justice), it should neither ignore society’s reaction of indignation nor public outcries against those who make themselves guilty of committing serious crimes. It was in these circumstances that the sentencing Court considered it justified that retribution and deterrence, as objectives of punishment, must come to the fore. Furthermore, given the gravity of the murder count, a lengthy custodial sentence seemed inevitable.
The offences are to be considered separately by imposing individual sentences and regard being had to the cumulative effect thereof so as to ensure that the total sentence is not disproportionate to the accused’s blameworthiness in relation to the offences committed.
‘[22] Given the personal circumstances of the accused, the gravity of the offences the accused stands convicted of, and the legitimate interest of society, the objectives of punishment in this instance should be deterrence and retribution, rehabilitation being of lesser consideration.
[23] The Court, therefore, found the following sentences appropriate:
Count 1: Murder, read with the provisions of the Combating of Domestic Violence Act 4 of 2003 – 28 years’ imprisonment.
Count 3: Attempted murder, read with the provisions of the Combating of Domestic Violence Act 4 of 2003 – 6 years’ imprisonment.
In terms of s 280(2) of the Criminal Procedure Act 51 of 1977, it is ordered that the sentence imposed on count 3 be served concurrently with the sentence imposed on count 1.’