28 August 2007
CRIMINAL LAW
(SENTENCING) AMENDMENT BILL
--------------------------------
(As introduced in the National Assembly (proposed section
75); explanatory summary of Bill
published in Government Gazette No. 29908 of 22 May 2007) (The
English text is the official text of the Bill)
---------------------------------
(MINISTER FOR JUSTICE
AND CONSTITUTIONAL DEVELOPMENT)
[B - 2007]
_____________________________________________________________________
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions
from existing enactments.
___________ Words underlined with a solid
line indicate insertions in existing enactments.
___________________________________________________________________
B I L L
To amend the Criminal Law Amendment
Act, 1997, so as to further regulate the imposition of discretionary minimum
sentences for certain serious offences; to give
a regional court jurisdiction to convict and sentence
a person found guilty of an offence
referred to in Part I of Schedule 2,
to imprisonment for life; to
provide that
certain circumstances shall not constitute substantial
and compelling circumstances
justifying
the imposition of a lesser sentence, when
a sentence must be imposed in
respect of the offence of rape; to repeal all sections dealing with the
committal of an accused for the purposes
of sentence by a High Court after conviction in a regional court of an offence
referred to in Schedule 2; to amend the Criminal
Procedure Act, 1977, so as to
provide for an automatic right of appeal if
a person was sentenced to life imprisonment by a regional
court;
to amend the National Prosecuting Authority Act, 1998, so as to provide
for policy directives indicating in
which instances prosecutions in respect of offences referred to in Schedule 2
to the Criminal Law Amendment Act, 1997, must be instituted in the High Court
as a court of first instance; to amend the
Prevention of Organised Crime Act,
1998, so as to effect a
consequential amendment; and
to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the
Substitution of section 51 of Act
105 of 1997, as amended by section 33 of Act 62 of 2000
and section 36 of Act 12 of 2004
1. The
following section is substituted for section 51 of the Criminal Law Amendment
Act, 1997:
"[Minimum]
Discretionary minimum
sentences for certain serious offences
51. (1) Notwithstanding
any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person
[—
(a) if] it has convicted [a
person]
of an offence referred to in Part I of Schedule 2[;
or
(b) if the matter has been referred to it
under section 52(1) for sentence after the
person concerned has been convicted of an offence referred to in Part I of
Schedule 2,
sentence
the person]
to imprisonment for life.
(2) Notwithstanding any other law but
subject to subsections (3) and (6), a regional court or a High Court
[, including
a High Court to which a matter has been referred under section 52(1) for
sentence,]
shall [in respect of] sentence a person who has been convicted of
an offence referred to in—
(a) Part
II of Schedule 2, [sentence the person,] in the case of—
(i) a
first offender, to imprisonment for a period not less than 15 years;
(ii) a
second offender of any such offence, to imprisonment for a period not less than
20 years; and
(iii) a third or subsequent offender of any such offence, to
imprisonment for a period not less than 25 years;
(b) Part
III of Schedule 2, [sentence the person,] in the case of—
(i) a
first offender, to imprisonment for a period not less than 10 years;
(ii) a
second offender of any such offence, to imprisonment for a period not less than
15 years; and
(iii) a third or subsequent offender of any such offence, to
imprisonment for a period not less than 20 years; and
(c) Part
IV of Schedule 2, [sentence the person,] in the case of—
(i) a
first offender, to imprisonment for a period not less than 5 years;
(ii) a
second offender of any such offence, to imprisonment for a period not less than
7 years; and
(iii) a third or subsequent offender of any such offence, to
imprisonment for a period not less than 10 years:
Provided that the maximum [sentence] term of imprisonment that a regional court may impose in
terms of this subsection shall not [be more than five years longer than
five years longer than]
exceed the minimum [sentence] term of imprisonment that it may impose in terms of this
subsection by more than five years.
(3) (a) If any court referred to in subsection (1) or (2) is
satisfied that substantial and compelling circumstances exist which justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the record of the
proceedings and [may] must thereupon impose such
lesser sentence:.
Provided that if a regional court imposes such a
lesser sentence in respect of an offence referred to in Part I of Schedule 2,
it shall have jurisdiction to impose
imprisonment for a period not exceeding 30 years.
(aA) When imposing a sentence in
respect of the offence of rape the following shall not constitute substantial and
compelling circumstances justifying the imposition of a lesser sentence:
(i) The
complainant's previous sexual history;
(ii) an
accused person’s cultural or religious beliefs about rape; or
(iii) any
relationship between the accused person and the complainant prior to the
offence being committed.(aA) When
imposing a sentence in respect of the offence of rape the following shall not
constitute substantial and compelling circumstances justifying the imposition
of a lesser sentence:
(i)
The
complainant's previous sexual history;
(ii)
a lack or
apparent lack of physical harm to the complainant;
(ii) an
accused person’s cultural or religious beliefs about rape; or
(iii) any
relationship between the accused person and the complainant prior to the
offence being committed.
[(b) If
any court referred to in subsection (1) or (2) [decides
to] imposes a a minimum sentence prescribed in those
subsections upon [a
child ] an accused person who was 16 years of age or older,
but under the age of 18 years, at the time of the commission of the act which
constituted the offence in question, it [shall]
must make a
finding that no substantial and compelling circumstances justifying the
imposition of a lesser sentence exist, and enter the reasons for its
[decision] finding on the record of the proceedings.
[(4) Any sentence contemplated in this section
shall be calculated from the date of sentence.]
(5) [(a)] [The] Subject to paragraph (b), the operation of a minimum sentence imposed in terms of this
section shall not be suspended as contemplated in section 297(4) of the
Criminal Procedure Act, 1977 (Act No. 51 of 1977).
[(b) If a sentence is imposed in terms of
subsection (2)(c), not
more than half of that sentence may be suspended as contemplated in section
297(4) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).]
(6) [The
provisions of this] This section [shall] does not [be
applicable] apply in respect of a [a child] an accused person who was under the age of—
(a) 16 years at the time of the
commission of [the act which constituted the
offence in question]
an
offence contemplated in subsection (1) or (2). [(a) or (b); or
(b) 18 years at the time of the
commission of an offence contemplated in subsection (2)(c).]
(7) If in the application of this section
the age of a [a child] an accused person is placed in issue, the onus shall
be on the State to prove the age of the [the child] that person beyond reasonable doubt.
(8) For the purposes of this section and
Schedule 2, 'law enforcement officer' includes—
(a) a
member of the National Intelligence Agency or the South African Secret Service [established
under]
referred
to in section 3 of
the Intelligence Services Act, [1994 (Act
No. 38 of 1994)]
2002
(Act No. 65 of 2002);
and
(b) a
correctional official of the Department of Correctional Services or a person
authorised under the Correctional Services Act, 1998 (Act No. 111 of
1998).
(9) The amounts mentioned in respect of the
offences referred to in [PART] Part II of Schedule 2 to the Act, may be
adjusted by the Minister from time to time by notice in the Gazette.".
Repeal
of sections 52, 52A and 52B of Act 105 of
1997
2. Sections
52, 52A and 52B of the Criminal Law Amendment Act, 1997, are repealed.
Amendment
of section 53 of Act 105 of 1997, as substituted
by section 36 of Act 62 of 2000 and
amended by section 16 of Act 42 of
2001
3. Section
53 of the Criminal Law Amendment Act, 1997, is amended—
(a)
by the deletion of subsections (1) and (2);
and
(b)
by the deletion of subsection (2A).
Insertion of section 53A in Act 105 of 1997
4. The following section is inserted
in the Criminal Law Amendment Act, 1997:
“Pending
proceedings
53A. If a
regional court has, prior to the date of the commencement of the Criminal Law
(Sentencing) Amendment Act, 2007–
(a) committed an accused for sentence
by a High Court under this Act, the High Court must dispose of
the matter as if the Criminal Law (Sentencing) Amendment Act, 2007, had not been passed; or
(b) not committed an accused for
sentence by a High Court under this Act, then the regional court must dispose of the matter in terms of this Act, as amended by the Criminal Law
(Sentencing) Amendment Act, 2007.”.
Amendment
of Part IV of Schedule 2 of Act 105 of 1997, as amended by section 37 of Act 62
of 2000 and section 27(1) of Act 33 of 2004
54. The following
section is substituted for Part IV of Schedule 2 of the Criminal Law Amendment
Act, 1997:
"PART IV
Any [offence
referred to in Schedule 1 to
the Criminal Procedure Act, 1977 (Act 51 of 1977) other than an offence
referred to in Part I, II or III of this Schedule] of the following offences, if the accused had with him or
her at the time a firearm, which was intended for use as such, in the
commission of such offence, but excluding an offence
referred to in Part I, II or III of this Schedule:
Treason.
Sedition.
Public violence.
Robbery.
Kidnapping.
Assault, when a dangerous
wound is inflicted with a firearm.
Breaking or entering any
premises, whether under the common law or a statutory provision, with intent to
commit an offence.
Escaping from lawful custody,
where the person concerned is in such custody in respect of any offence
referred to in Schedule 1 of the Criminal Procedure Act, 1977, or is in such
custody in respect of the offence of escaping from lawful custody.".
“PART IV
Any
offence referred to in [Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 of 1977)] Schedule 3, other than an
offence referred to in Part I, II or III of this Schedule, if the accused had
with him or her at the time a firearm, which was intended for use as such, in
the commission of such offence.”.
Insertion of
Schedule to Act 105 of 1997
5. The following Schedule is
inserted in the Criminal Law Amendment Act, 1997:
“Schedule 3
(PART IV of Schedule 2)
Treason.
Sedition.
Public
violence.
Robbery.
Kidnapping.
Assault, when a
dangerous wound is inflicted with a firearm.
Breaking or
entering any premises, whether under the common law or a statutory provision,
with intent to commit an offence.
Escaping from
lawful custody, where the person concerned is in such custody in respect of any
offence referred to in Schedule 1 of the Criminal Procedure Act, 1977, or is in
such custody in respect of the offence of escaping from lawful custody.”.
Amendment
of section 309 of Act 51 of 1977, as amended by section 17 of Act 105 of 1982, section
8 of Act 107 of 1990, section 51 of Act 129 of
1993, section 13 of Act 75 of 1995,
section 2 of Act 33 of 1997, section 2 of Act 76 of 1997, section 38 of Act 105
of 1997 and section 2 of Act 42 of 2003
[4]76. Section
309 of the Criminal Procedure Act, 1977, is amended by the substitution in
subsection (1) for paragraph (a) of the following paragraph:
"(a) Any
person convicted of any offence by any lower court (including a person
discharged after conviction) may, subject to leave to appeal being granted in
terms of section 309B or 309C, appeal against such conviction and against any
resultant sentence or order to the High Court having jurisdiction: Provided
that—
(i) if
that person was, at the time of the commission of the offence—
[(i)](aa) below
the age of [14] 16 years; or
[(ii)](bb) at
least [14] 16 years of age but below the age of [16] 18 years and was not assisted by a
legal representative at the time of conviction in a regional court; and
[(iii)](cc) was
sentenced to any form of imprisonment as contemplated in section 276 (1) that
was not wholly suspended; or
(ii) if
that person was sentenced to life imprisonment by a regional court under
section 51(1) of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997),
he or she may note such an appeal
without having to apply for leave in terms of section 309B: Provided further that the provisions of
section 302(1)(b) shall apply in respect of a person
who duly notes an appeal against a conviction, sentence or order as
contemplated in section 302(1)(a).".
Amendment
of section 21 of Act 32 of 1998
[5]87. Section
21 of the National Prosecuting Authority Act, 1998, is amended by the addition
of the following subsections:
"(3) The
prosecution policy or amendments
to such policy must must determine the circumstances under which
prosecutions shall be instituted in the High Court as a court
of first instance [include directives indicating in which instances
prosecutions] in respect of offences referred to
in Schedule 2 to the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997) [, must be instituted
in a High Court as a court of first instance].
(4) The
National Director must issue policy directives [contemplated in subsection (3) must be issued] pursuant to the policy
contemplated in subsection (3), regarding the institution of
prosecutions in respect of offences
referred to in Schedule 2 to the Criminal Law Amendment Act, 1997, within three months of the date of
the commencement of the Criminal Law (Sentencing) Amendment
Act, 2007.".
Amendment of
section 3 of Act 121 of 1998
9. Section 3 of the Prevention of
Organised Crime Act, 1998, is amended—
(a)
by the deletion of subsection (2)(ii);
and
(b)
by the deletion of subsection (3).
[Transitional
provision
[6]109. If a regional court has, prior to the commencement of this Act, committed an accused for sentence
by a High Court under the Criminal Law Amendment Act, 1997 (Act No. 105 of
1997), and—
(a) the High Court
has not heard the matter, then the High Court must refer the matter back to the
regional court
for sentencing in terms of the Criminal Law Amendment Act, 1997 (Act No. 105 of
1997); or
(b) the High Court
has heard the matter, then the High Court must dispose of the matter as if this
Act has not been passed.]
Short
title and commencement
[7]110. This
Act is called the Criminal Law (Sentencing) Amendment Act, 2007, and comes into
operation on a date fixed by the President by proclamation in the Gazette.