Toubie v S (635/11) [2012] ZASCA 133; [2012] 4 All SA 290 (SCA) (27 September 2012)

Toubie v S (635/11) [2012] ZASCA 133; [2012] 4 All SA 290 (SCA) (27 September 2012)

The Supreme Court of Appeal held that the full court was competent to deal with and amend the sentences imposed by the trial court, even though leave to appeal was granted only in respect of conviction. This power is conferred by s 22(b) of the Supreme Court Act and s 322 of the Criminal Procedure Act, which allow the appeal court to make any order required by the circumstances to dispense justice. However, the court found that the appellant was not informed of the applicability of the minimum sentencing regime under the Criminal Law Amendment Act 105 of 1997, either at the plea stage or during trial, and the indictment did not reference the Act. This omission constituted a procedural...

Citation
[2012] ZASCA 133
Parties
Appellant: Don Toubie; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 September 2012
Case Number
635/11
Procedural Posture
Criminal Appeal / Appeal From the Full Court of the South Gauteng High Court (johannesburg)
Outcome
Appeal upheld on sentence; sentences imposed by the full court set aside and replaced with sentences under ordinary penal jurisdiction.
Judges
Heher, Mhlantla, Bosielo, Shongwe, Erasmus
Legal Topics
Minimum Sentencing, Criminal Procedure Act, Leave to Appeal, Fair Trial Rights, Substantial and Compelling Circumstances
Criminal Law Minimum Sentencing Criminal Procedure Act Leave to Appeal Fair Trial Rights Substantial and Compelling Circumstances

Case Brief

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Parties

Don Toubie

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From the Full Court of the South Gauteng High Court (johannesburg)

Legal Issues

  1. 1 Was the full court competent to deal with and increase the sentence where leave to appeal was granted only in respect of conviction?
  2. 2 Did the failure to inform the accused of the applicability of the Criminal Law Amendment Act 105 of 1997 render the sentencing irregular and unfair?
  3. 3 Should the sentences imposed by the trial court and full court be set aside and reconsidered outside the minimum sentencing regime?

Ratio Decidendi

The Supreme Court of Appeal held that the full court was competent to deal with and amend the sentences imposed by the trial court, even though leave to appeal was granted only in respect of conviction. This power is conferred by s 22(b) of the Supreme Court Act and s 322 of the Criminal Procedure Act, which allow the appeal court to make any order required by the circumstances to dispense justice. However, the court found that the appellant was not informed of the applicability of the minimum sentencing regime under the Criminal Law Amendment Act 105 of 1997, either at the plea stage or during trial, and the indictment did not reference the Act. This omission constituted a procedural...

Court Disposition

Appeal upheld on sentence; sentences imposed by the full court set aside and replaced with sentences under ordinary penal jurisdiction.

Orders

  • The appeal is upheld.
  • The order of the full court in paragraphs 4, 5, 6.1 and 6.2 is set aside and replaced with the following: