S v Luyke (943/2006) [2006] ZAFSHC 20 (31 August 2006)

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[2006] ZAFSHC 20
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S v Luyke (943/2006) [2006] ZAFSHC 20 (31 August 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review No.: 943/2006
In the review between:
THE STATE
and
JACOBUS HENDRIK
LUYKE
CORAM:
RAMPAI, J
et
VAN ZYL, J
JUDGEMENT:
RAMPAI, J
_____________________________________________________
DELIVERED ON:
31 AUGUST 2006
_____________________________________________________
[1] The matter came to
this court by way of a special review. On the 17
th
July
2006 the accused appeared in the Virginia Regional Court where he was
accused of two counts of indecent assault. Before he
was required to
plead, the defence and the prosecution bargained and reached a plea
agreement and sentenced on the same day, the
17
th
July
2006 in accordance with the negotiated sentence agreement.
[2] In her referral to
the registrar dated the 25
th
July 2006 the trial
magistrate wrote in paragraph 5:
¡°
... it appears to be irregular for
the court to impose both suspended and unsuspended imprisonment terms
on the accused in terms of
section 276(1)(i), Act no. 51/1977.”
[3] The first charge was
that the accused indecently assaulted a minor child, T.d.T. at S…
in Virginia over a period of time from
the year 2001 to year 2005.
The state alleged that the victim was 4 years old when the accused
began assaulting her indecently by
inserting his fingers into her
female sex organ.
[4] The second charge was
that the accused indecently assaulted a minor child, B.H. at S… in
Virginia during the year 2002. Here,
as in the first case, the state
also alleged that the accused indecently assaulted the 8 year old
victim by inserting his fingers
into her female sex organ.
[5] The first relevant
portion of the sentence agreement in terms of section 105A stipulated
that the accused be sentenced to five
years imprisonment during which
he may be placed under correctional supervision by the commissioner
and that after his release the
accused had to undergo specified
therapeutic programmes. Vide paragraph 1, Annexure J4.
[6] The second relevant
portion of the sentence agreement in terms of section 105A stipulated
in paragraph 3 thereof as follows:
¡°
... And a further six (6) years
imprisonment suspended for a period of five (5) years on the
following conditions.”
The second sentence was
imposed in addition to the first sentence described above.
[7] The sentence agreed
upon as set out in paragraph 1 of the sentence agreement was a type
of sentence as envisaged in section 276(1)(i).
But the agreed
sentence as set out in paragraph 3 of the sentence agreement was not.
It is a pure species of the sentence as envisaged
in section
276(1)(b). A suspended sentence has no recognised statutory orbit of
its own. This is so because it is really an off-shoot
of section
276(1)(b).
[8] The two sentences are
quite dissimilar. For instance paragraph 3 effectively obviates the
immediate jailing of the offender whereas
paragraph 1 demands the
immediate jailing of the offender. Put differently the former
conditionally suspends the immediate imprisonment
but the latter
conditionally requires the immediate imprisonment of the offender. A
wholly suspended sentence is an adapted form
of section 276(1)(b),
which provides for punishment by way of imprisonment. So too is a
correctional supervision sentence. Because
correctional sentence
entails a compulsory component of imprisonment, it is also an adapted
form of punishment by way of imprisonment
as provided for in section
276(1)(b). This is a fundamental similarity.
[9] Since the two
sentences contained in the sentencing agreement are essentially
hybrids of the same punishment creature termed imprisonment,
they
have to be collectively and not disjointly taken into account if
punishment is to be properly and permissibly imposed in terms
of
section 276(1)(i). So considered the composite sentence imposed in
the instant case becomes 11 years imprisonment. Such a sentence
is
irregular because it offends the statutory provisions of section
276A(2) which underpins section 276(1)(i). This section limits
the
maximum punishment under section 276(1)(i) in a significant way.
Where the customary hybrid of imprisonment, in other words
a
suspended sentence in terms of section 276(1)(b), is imposed in
conjunction with the special hybrid of imprisonment in terms of
section 276(1)(i) the composite jail term should not exceed the five
year statutory limit. Vide Terblanche:
The Guide to
Sentencing in South Africa,
1999 edition, page 288 paragraph
9.2. Therefore the subsequent realisation of the magistrate that the
sentence she imposed appeared
to be irregular was indeed correct.
[10] Section 276A(2), Act
No. 51/1977 provides as follows:
¡°
(2) Punishment shall only be
imposed under section 276(1)(i) –
(a) if the court is of the opinion
that the offence justifies the imposing of imprisonment, with or
without the option of a fine,
for a period not exceeding five years;
and
(b) for a fixed period not exceeding
five years.”
[11] In
S v
SLABBERT
1998 (1) SACR 646
SCA at 647h to 648e, Schultz JA
authoritatively outlined the correct legal position of section
276A(2) read with section 276(1)(i).
He said:
¡°
The concluding words quoted from
(a) and (b) appear to be both clear and peremptory. Punishment
(meaning imprisonment) under the
subsection shall not exceed five
years. For this reason Kriek JP held in
S
v Randell
1995 (1) SACR 403
(NC) that a sentence of six years’ imprisonment plus four years’
imprisonment subject to s 276(1)(i) was incompetent. The objection
was not the adding together of the two forms of imprisonment, but the
total of 10 years. I agree with the decision.
The difference in the case before us
is that the two years added to the five is wholly suspended. Does
that make a difference? It
has been emphasised repeatedly, in a
variety of contexts, that a suspended sentence of imprisonment is,
nonetheless, a sentence of
imprisonment. In
Fega
v Dönges NO and Another; Bhana v Dönges NO and Another
1950 (4) SA 653
(A) the Minister of the Interior was entitled to deem
as an undesirable inhabitant of the Union one who ‘has been
sentenced to
imprisonment’. The sentences of the appellants had
been wholly suspended and it was argued that what the legislation
contemplated
was ‘actual and not merely potential imprisonment’
(at 657E-F). This argument was rejected, Centlivres JA saying (at
657H-658A):
¡®
... a sentence of imprisonment,
the whole of which is suspended on a specified condition, is as much
a sentence of imprisonment as
a sentence of imprisonment none of
which is suspended. It is true that the sentence cannot be enforced
unless the condition is breached
but it remains in force and can be
carried into execution if during the period of its suspension the
accused
breaches the condition.’
In a different context it has been
held that a suspended sentence is not something ‘tacked on’ to an
unsuspended sentence. The
suspended part is not to be viewed as if
it will not be served. It is part of the whole sentence and it is
the whole that should
be appropriate, before consideration is given
to suspension of a part. See particularly
S
v Setnoboko
1981 (3) SA 553
(O) at 556E-F and
S v
Labuschagne
and 19
Other
Cases
1990 (1) SACR 313
(E)
at 315f-g.
The result is that the additional two
years is also imprisonment, which means that the sentence is one
or
(should be of) seven years. If the magistrate was on the mind that
only five years ‘counted’ in deciding whether he should act
in
terms of s 276A(2)(a), then he misdirected himself. In any event he
erred in imposing a sentence of seven years for one offence
whilst
purporting to act under s 276(1)(i) – contrary to the express terms
of s 276A(2)(b). Therefore the entire sentence must
be set aside.”
[12] Although the accused
face two counts of indecent assault in the instant case, it was
agreed
inter partes
that the two counts should be taken
together for the purposes of sentence. It was probably the number of
the charges which prompted
the state to insist on the additional but
suspended sentence of six years. It was probably felt by all
concerned that the first
sentence alone as set out in paragraph 1 of
the sentence agreement was disproportionate to the gravity of the two
charges. The court
was then asked to take the two charges together
for the purpose of sentence. In retrospect this appears to have been
the cause of
the present dilemma. In the end the court erred in
imposing a composite sentence of 11 years imprisonment for “one
offence”
whilst porting to act in terms of section 276(1)(i). In
doing so the express provisions of section 276A(2) were violated.
[13] In the light of the
aforegoing irregularity I am not satisfied that the proceedings in
the court below were indeed in accordance
with justice. Therefore
the entire sentence and indeed the conviction itself have to be set
aside and the matter remitted to the
regional court.
[14] Considering that the
plea of guilty and the agreed sentence contained in such an agreement
are interrelated to one another, it
can and probably will cause an
injustice to the accused should only the sentences be set aside and
the convictions be allowed to
stand. Should the prosecutor and the
accused not be able to agree on a new sentence, the accused will
still be bound by the plea
of guilty. This will obviously cause an
injustice to the accused. I therefore consider it necessary and
appropriate that both the
conviction and the sentences be set aside
and that the matter be referred back to the regional court to be
heard
de nono
.
[15] I may add that I am
of the view that the prohibition against entering into a new plea and
sentence agreement as contained in
section 105A(10)(b) will not be
applicable when this matter is heard
de novo
, because in this
instance the parties have not withdrawn from the agreement as
provided for in section 105A(9)(d).
[16] As I near the end, I
find it appropriate to conclude with the following passage per Schutz
JA in
S v SLABBERT
supra
at 648 f – g.
¡°
I understand what the magistrate
was trying to do – to sentence the appellant to the full five years
permissible under s 276A(2)
with its prospect of amelioration by the
Commissioner, whilst having a further two years without a direct
prospect of amelioration
hang over her head as a warning. All I need
say is that the legislation does not permit such a course.”
[17] Accordingly I make
the following order:
17.1 The convictions and
the sentences are set aside.
17.2 The case is remitted
to the regional court to be heard
de novo.
______________
M.H. RAMPAI, J
I concur.
_____________
C. VAN ZYL, J
/em