The court will..., determine the appropriate sentence on the basis that it is at large, subject to the provisions of section 47(4)(b) of the Criminal Law (Codification and Reform) Act, to impose a sentence of imprisonment upon the accused of such length as it considers appropriate taking into account the ...
The court will..., determine the appropriate sentence on the basis that it is at large, subject to the provisions of section 47(4)(b) of the Criminal Law (Codification and Reform) Act, to impose a sentence of imprisonment upon the accused of such length as it considers appropriate taking into account the objective circumstances surrounding the commission of the offence and balancing them with the accused's personal circumstances and the interests of society.
The interests of society require that the provisions of Chapter 4 (Declaration of Rights) of the Constitution should be upheld.
Section 44 of the Constitution reads as follows;
“44 Duty to respect fundamental human rights and freedoms
The State and every person, including juristic persons, and every institution and agency of the Government, at every level, must respect, protect, promote and fulfil the rights and freedoms set out in this chapter.”
The right to life is a fundamental human right and the court, as an agency of Government must give effect to section 44 of the Constitution when imposing sentence upon an offender convicted of murder or violating another's person's right to life as set out in section 48 of the Constitution.
Although this case was committed in 2011, before the promulgation of the present 2013 Constitution, nothing turns on this because the determining period, in terms of section 48 of the current Constitution, is the time of sentence.
Even if argument were to be raised to the contrary, and barring further arguments which could arise as a result of the savings and transitional provisions of the Constitution, in section 18 of the 6th Schedule, on the applicability of this Constitution to cases committed before the Constitution came into office, the position of the accused would not be any better, since, under the previous Constitution, not only was the right to life classified as a fundamental human right, but, legislation then in force made the imposition of a death penalty for murder mandatory in the absence of extenuating circumstances.
The above said, what is not debatable is that societal interests call upon the courts to impose sentences, in murder cases, which emphasize society's abhorrence for persons who commit murder.
Sentences imposed for murder must send a clear message to the accused, and would-be offenders, that the sanctity of human life should be held sacrosanct.
Whilst human rights are indivisible and interdependent, the right to life must rank as the mother of all human rights because without respecting and promoting it, society is decimated, and without society, there can be no human rights to enjoy, protect, promote, or fulfil.
The accused therefore committed a very serious offence in that it deprived society of one of its members....,.
Despite the acceptance of the seriousness of the offence, and the finding that societal interests must take centre stage in sentencing an offender for the offence of murder, a court should not be retributive.
The remarks of HOLMES JA, in S v Rabie 1975 (4) SA 855, at 861-2, should always be embraced by every sentencer.
The learned judge reminded every sentencer of the importance of being fair to both the convict and society. He emphasised that justice included the element of mercy and that the latter was the hallmark of a civilised society and enlightened criminal justice system.
CORBETT JA, in the same judgment, at page 866, stated;
“A judicial officer should not approach punishment in a spirit of anger, because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal, and the interests of society which has task and the objects of punishment demand of him. Nor should he strive after severity, nor, on the other hand, surrender himself to misplaced pity.
Whilst not flinching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality.
It is in the context of this attitude of mind that l see mercy as an element in the determination of the appropriate punishment in the light of all the circumstances of the particular case.”
I must, at once, say that I defer to the dicta by the learned judgement as they commend themselves as pointedly very instructive and jurisprudentially beyond reproach.
The court will be guided accordingly.
Following on the court's embrace of the above approach, it must follow, as stated in S v Zinn 1969 (2) SA 537 (A), that, in assessing sentence, the court must have regard to the offender, the offence, and the interests of society in the imposition of an appropriate sentence.
So far as l stand informed of the court's approach to sentence in this jurisdiction, the approach in the quoted cases relate with the Zimbabwean approaches and indeed with sentencing trends in other jurisdictions where the court exercises a discretion on what sentence to impose for the specified offence....,.
A factor which weighs heavily in favour of the accused is the prima facie unreasonable delay in bringing this case to trial.
The defence counsel did not invoke the provisions of section 167A of the Criminal Procedure and Evidence Act for the court to enquire on the delay.
Be that as it may, the issue was raised in mitigation.
It was submitted, on the accused's behalf, that, from the time that the accused was arrested, on 23 October 2011, he availed himself to stand trial.
A delay of seven (7) years in bringing an arrested person to trial is prima facie unreasonable unless properly justified by the State.
Defence counsel submitted, that, on no less than three (3) previous occasions, the accused had been committed for trial with the trial being aborted for no fault of the accused.
The law provides for criminal trials to be held within a reasonable period, and, where there has been an unreasonable delay in the completion of the criminal proceedings, such factor should be considered as a mitigating factor in assessing sentence.
The State counsel did not deny that the delayed trial was not due to the conduct or fault of the accused. The fault was with the State whose house was not in order.
The delay in this matter is therefore a factor of weighty mitigation....,.
Individual deterrence..., is looked at from the retributive perspective that the accused should feel the pain of punishment for his transgression.
General deterrence should be the core value of society in matters of violence.
The interests of society will not be served by too harsh a sentence inasmuch as they will not be served by too lenient a sentence. A proper balance must be struck using the triad approach set out in S v Zinn 1969 (2) SA 537 (A)....,.
Each case should be decided on its own facts and circumstances.
