3 September
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 Schedule
2 in order to further regulate the offences in respect of which minimum
sentences must be imposed;
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]
exceed the minimum [sentence] term of imprisonment that it [may] must 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 a term of 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
apparent lack of physical injury to the complainant;
(iii) an
accused person’s cultural or religious beliefs about rape; or
(iv) 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 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) Not
more than half of
a minimum
sentence
imposed
in terms of subsection (2)
may
be suspended as contemplated in section 297(4) of the Criminal Procedure Act,
1977 (Act No. 51 of 1977), if the accused person was 16 years of age
or older, but under the age of 18 years, at the time of the commission of the
offence in question.
(6) [The
provisions of this]
This section [shall] does not [be
applicable] apply in respect of [a
child] an accused person who was under the age of 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] an accused person is placed in issue, the onus shall
be on the State to prove the age of [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:
“Transitional
provision
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
Schedule 2 to
Act 105 of 1997, as amended by section 37 of Act
62 of 2000 and section 27(1) of Act 33 of 2004
5. Schedule 2 to the Criminal Law Amendment Act,
1997, is amended─
(a) by
the addition
in Part I
after
paragraph (d) of the paragraphs setting out the categories of "murder", of the following paragraphs:
"(e) the
victim was killed in order to unlawfully remove any
body part of the victim, or as a
result of such unlawful removal of a body part of the victim;
(f) the
death of the victim resulted from, or is directly related to, any offence contemplated
in section 1(a) to (e) of the Witchcraft Suppression Act,
1957 (Act No. 3 of 1957).
(b) by the substitution for Part IV of the following Part:
"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:
Treason;
Sedition;
Public violence;
Robbery, other than a robbery referred to in Part I or II of this
Schedule;
Kidnapping;
An offence involving an assault, when a dangerous wound is
inflicted with a firearm,
other than an offence referred to in Part I, II or III of
this Schedule;
Breaking or entering any premises,
whether under the common law or a statutory provision, with intent to commit an
offence;
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]7. 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 imprisonment for life [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]8. Section
21 of the National Prosecuting Authority Act, 1998, is amended by the addition
of the following subsections:
"(3) The
prosecution policy 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].
(5) The
prosecution policy and the
policy
directives contemplated in subsections (3) and (4) above, must be issued 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]10. 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]11. This
Act is called the Criminal Law (Sentencing) Amendment Act, 2007, and comes into
operation on
31 December 2007 or an earlier
date fixed by the President by proclamation in the Gazette.