CRIMINAL
LAW (SENTENCING) AMENDMENT BILL
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(As introduced in
the National Assembly (proposed section 75);
explanatory summary of Bill published in Government Gazette No. 29908 of
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(MINISTER
FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)
[B - 2007]
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060307se
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.
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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; 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 the minimum [sentence] term of imprisonment
that it may impose in terms of this subsection.
(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.
(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.
[(b) If any court referred to in subsection (1)
or (2) decides to impose a sentence prescribed in those subsections upon a
child 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 enter the reasons for its decision 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 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 [child] 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 [child] person is
placed in issue, the onus shall be on the State to prove the age of the [child] 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).
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. 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. 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 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 policy directives contemplated in
subsection (3) must be issued within three months of the date of the
commencement of the Criminal Law (Sentencing) Amendment Act, 2007.".
Transitional provision
6. 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. 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.