EXAMINING SECTION 51 (1) OF THE CRIMINAL LAW AMENDMENT ACT 105 OF 1997 AND ITS APPLICATION IN THE SENTENCING OF PERPETRATORS OF CHILD RAPE IN SOUTH AFRICA
exceptional. However the term adopted by the legislature is 'substantial and compelling' and relates to the quantification of the factors. It relates to the weight of the factors that influence the court's decision to the exclusion of extra-ordinary factors. There is therefore no formula or protocol within which to include these extra-ordinary factors with regard to their influence on the courts in the sentencing process.
Justice Davis referred to the English case of R v Kelly to determine what the meaning of the term ‘exceptional circumstances’ was, where Lord Birmingham stated the following:
‘We must construe “exceptional” as an ordinary, familiar English adjective and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary or unusual, special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare but it cannot be one that is regularly or routinely or normally encountered.’
In the above quote, Lord Birmingham was dissecting the meaning of "exceptional circumstances' and was intending to show that 'exceptional circumstances' require that they are neither regularly or routinely encountered or seen, nor are they unique or unusual. For instance, a substantial factor that may compel the court to impose a lenient sentence upon an accused may be his youth or that he is a first time offender. Alternatively a court may consider a physically infirm person such as a 50 year old amputee convicted of rape as an exceptional factor. Although such a factor is still substantial and compelling in regard to its weight in possibly reducing the harshness of the sentence, it is also exceptional in that it is not a factor that a court would ordinarily encounter.
The Minnesota system of sentencing differs from section 51. The term ‘substantial and compelling circumstances’ should be interpreted by applying it to the common language that is pre-existing within South African statutes. Justice Davis found that the words 'substantial and compelling' go to weight rather than to exception. The use of the word 'substantial' means something more than prima facie in the ordinary legal context. Thus, the words ‘substantial and compelling’ circumstances compel the court to consider all the available mitigating factors to assess whether or not they are of substantial weight to enable the court to exercise it's discretion and provide for a reduced sentence.
The term 'substantial and compelling' indicates that the court has to exercise its discretionary powers in deciding whether the accused should or should not be sentenced to life imprisonment. The use of discretionary powers by the courts, in deciding whether or not to impose a sentence other than that as prescribed by the legislature was raised in the case of S v Blaauw. In this caseJustice Borchers found that section 51 (1) read with section 51 (3) does not create a mandatory sentence, because the legislature allows the court to exercise it's discretion in order to determine if substantial and compelling circumstances exist that justify imposing a lesser sentence upon the accused, as opposed to the prescribed minimum sentence of life imprisonment. The learned judge stated that the legislature limits the discretion of the courts as opposed to earlier legislation, which provided for the 'circumstances' to exist in order to depart from the prescribed sentences whereas section 51 (1) provides for 'substantial and compelling' circumstances to exist. In it’s individual context, the term 'circumstances' is broad and could constitute any circumstance, thereby leaving the courts to grapple with which the most relevant ‘circumstance’ is that should be considered to mitigate the sentence. The use of the term 'compelling and substantial circumstances' alternatively, creates boundaries within which the courts can assess whether or not such circumstances justify the imposition of a reduced sentence.
Whilst the legislature has not specifically singled out those factors which the court should and should not consider, Justice Borchers was of the opinion that a court would still have the discretion 'to have regard to the factors which would traditionally have been considered in imposing sentence'. Justice Borchers found that a court should consider each factor cumulatively as opposed to independently. If in doing this the court considers all of the aggravating and mitigating circumstances and that a sentence of life imprisonment will be grossly disproportionate to the crime committed, the court should find that there are substantial and compelling circumstances not to impose the prescribed life imprisonment sentence.
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