S v Kelly (CA & R 2/2023) [2023] ZANCHC 35 (14 April 2023)

S v Kelly (CA & R 2/2023) [2023] ZANCHC 35 (14 April 2023)

The magistrate erroneously sentenced the accused for malicious damage to property on count 4, despite that charge having been withdrawn and the accused having been convicted for contravention of a harassment protection order. This constitutes a material error resulting in a failure of justice. The interests of justice require that the incorrect sentence be set aside and the matter remitted to the trial court for proper sentencing on the correct charge.

Citation
[2023] ZANCHC 35
Parties
Applicant: The State; Respondent: Ashley Kelly
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
14 April 2023
Case Number
CA & R 2/2023
Procedural Posture
Special Review / Review of Sentencing Error
Outcome
Sentence on count 4 set aside; matter remitted for proper sentencing on contravention of harassment protection order.
Judges
Mamosebo, Phatshoane
Legal Topics
Sentencing Error, Malicious Damage to Property, Contravention of Protection Order, Criminal Procedure Act, Protection of Harassment Act
Criminal Law Sentencing Error Malicious Damage to Property Contravention of Protection Order Criminal Procedure Act Protection of Harassment Act

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Parties

The State

Applicant

Ashley Kelly

Respondent

Procedural Posture

Special Review / Review of Sentencing Error

Legal Issues

  1. 1 Whether the accused was improperly sentenced for an offence that had been withdrawn.
  2. 2 Whether the sentence for count 4 should be set aside and the matter remitted for proper sentencing.

Ratio Decidendi

The magistrate erroneously sentenced the accused for malicious damage to property on count 4, despite that charge having been withdrawn and the accused having been convicted for contravention of a harassment protection order. This constitutes a material error resulting in a failure of justice. The interests of justice require that the incorrect sentence be set aside and the matter remitted to the trial court for proper sentencing on the correct charge.

Court Disposition

Sentence on count 4 set aside; matter remitted for proper sentencing on contravention of harassment protection order.

Orders

  • The sentence in respect of count 4, incorrectly worded as malicious damage to property, is set aside.
  • The matter is remitted to the trial court for sentencing in respect of count 4.