REMITTING OF A CASE TO THE TRIAL COURT AND THE DUTY TO TAKE STEPS TO OBTAIN EVIDENCE TO DETERMINE THE EXISTENCE OF SUBSTANTIAL AND COMPELLING CIRCUMSTANCES Calvin v The State (962/2013)  ZASCA 145 (26 September 2014)
Keywords:minimum-sentencing legislation, substantial and compelling circumstances, evidence, proper assessment
It has been a while since the minimum-sentencing legislation introduced a new approach to sentencing in the South African courts. After the initial resistance and considerable diversity in the different courts’ approach to the legislation, it can now be said that the courts have given adequate clarity to the sentencing regime and how it should be approached. In S v Malgas (2001 (2) SA 1222 (SCA)), the court outlined the principles and the procedure that are appropriate in dealing with this sentencing regime. In S v Dodo (2001 (3) SA 382 (CC)), the Constitutional Court solidified the approach adopted in Malgas and, since then, there appears to be clarity regarding the sentencing approach. In sum, the courts are obliged to impose the specified minimum sentences unless there are substantial and compelling circumstances. In the absence of such substantial and compelling circumstances, the court has no option but to impose the prescribed minimum sentence. Schoeman AJA, in Calvin v The State ((962/2013)  ZASCA 145) − the focus of this case note − aptly summarised the approach as follows: “The minimum sentence has been set as a benchmark prescribing the sentence to be ordinarily imposed for specific crimes and should not be departed from for superficial reasons” (par 8).
However, there are still situations in which the courts impose minimum sentences without adequately inquiring into the existence or otherwise of substantial and compelling circumstances. Such was the case in Calvin v The State, where the appeal court found that the trial court had misdirected itself in not taking steps to obtain evidence which would enable it to make a proper assessment as to whether substantial and compelling circumstances existed. This note deals with the importance and necessity of such proper assessment for sentencing purposes and highlights that, despite the provision in section 274(1) of the Criminal Procedure Act (51 of 1977) bestowing discretion on the trial court, the Supreme Court of Appeal has proclaimed such assessment as a duty, as will be argued later herein.
Further, it is argued that the interests of justice would have been better served if the case had been referred to the trial court for a proper sentencing process to take place. What is questioned, in a nutshell, is the decision by the appeal court to assume the role of the sentencing court in the circumstances of this case.
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