Soutter v S (60/2018) [2019] ZAGPJHC 255 (2 August 2019)

Soutter v S (60/2018) [2019] ZAGPJHC 255 (2 August 2019)

The Magistrates Court materially misdirected itself by imposing a non-parole period in excess of the statutory maximum and without inviting submissions from the accused or establishing exceptional circumstances. This constituted an irregularity and rendered the sentencing proceedings not in accordance with justice. The High Court exercised its review powers to set aside the non-parole order and substitute a lawful sentence, as remittal would serve no practical purpose given the time already served and absence of exceptional circumstances.

Citation
[2019] ZAGPJHC 255
Parties
Applicant: Dillen David Soutter; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
2 August 2019
Case Number
60/2018
Procedural Posture
Review Application / High Court Review of Magistrates Court Criminal Sentence
Outcome
The non-parole order imposed by the Magistrates Court is reviewed and set aside. The sentence is substituted with six years direct imprisonment, antedated to 13 August 2014.
Judges
L R Adams, D Unterhalter
Legal Topics
Non Parole Period, Criminal Sentence Review, Magistrates Court Irregularity
Criminal Law Civil Procedure Non Parole Period Criminal Sentence Review Magistrates Court Irregularity

Case Brief

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Parties

Dillen David Soutter

Applicant

The State

Respondent

Procedural Posture

Review Application / High Court Review of Magistrates Court Criminal Sentence

Legal Issues

  1. 1 Whether the imposition of a non-parole period by the Magistrates Court was lawful and valid.
  2. 2 Whether the accused was afforded an opportunity to address the non-parole period before sentencing.
  3. 3 Whether exceptional circumstances existed to justify the non-parole order.

Ratio Decidendi

The Magistrates Court materially misdirected itself by imposing a non-parole period in excess of the statutory maximum and without inviting submissions from the accused or establishing exceptional circumstances. This constituted an irregularity and rendered the sentencing proceedings not in accordance with justice. The High Court exercised its review powers to set aside the non-parole order and substitute a lawful sentence, as remittal would serve no practical purpose given the time already served and absence of exceptional circumstances.

Court Disposition

The non-parole order imposed by the Magistrates Court is reviewed and set aside. The sentence is substituted with six years direct imprisonment, antedated to 13 August 2014.

Orders

  • The non-parole order issued on 13 August 2014 by the Randfontein Magistrates Court in S v Soutter, case number RC315/2014, is reviewed and set aside.
  • That part of the sentence requiring Mr Soutter to serve the full term of six years direct imprisonment without the option of parole is set aside and substituted with: 'The accused is sentenced in respect of the Housebreaking with Intent to steal conviction to a period of six years direct imprisonment.'