CAPE TOWN - A convicted sexual offender who received seven years’ imprisonment for the attempted rape of his minor nephew may face a lesser sentence due to “procedural irregularities” at the Khayelitsha Regional Court.
This as the regional court magistrate referred the matter to the Western Cape High Court for special review after she had convicted and sentenced man to seven years instead of the prescribed five years allowed by the Criminal Procedure Act.
The magistrate said she had in error imposed a seven-year sentence and realised her mistake when she returned to office and has sought in the review of the matter that the sentence be set aside and referred back to her so she may impose a just sentence.
“In her covering letter motivating the request for a special review, the magistrate explains that after finalisation of the matter and on returning to her office, she realised the error in respect of the sentence imposed. She had intended imposing a sentence in terms of section 276 (1)(i) and realised that in terms of section 276A(2)(b), the sentence agreed upon and imposed exceeded the fixed period of five years’ imprisonment allowed by the CPA,” Acting High Court Judge Mas-Udah Pangarker, noted.
The man was convicted after it was found that on May 6 last year, he unlawfully and intentionally “attempted to commit a sexual offence by placing his penis between the buttocks of the minor victim with the intention of penetrating the victim anally, after pulling down the victim’s (pyjama) pants,” court documents read.
“As to the allegations in terms of the charge sheet, the accused admitted that he is the uncle of the minor victim and on the day, he was watching television from his bed while the victim was sleeping next to him.
He then proceeded to remove his nephew’s pyjama pants and placed his penis between his nephew’s buttocks with the intention of committing an act of anal sexual penetration.
“His nephew awoke, jumped from the bed and ran to report the incident to a family member. The accused admitted that he acted unlawfully, knew at all relevant times that his actions were wrongful and that he could be punished by law,” court documents further read.
In her judgment, Pangarker said the proceedings referred to required scrutiny and comment on how plea and sentencing proceedings had not followed prescribed protocol, adding that proceedings “were characterised by irregularities which the magistrate ... does not address in her covering letter”.
“The conviction and sentence of an accused ... occur consecutively but it is part of one process. In this matter, the pronouncement of the conviction following upon the accused’s questioning in terms of subsection 6(a) and prior to the provisions of subsections 7(a) and (8) having been complied with was irregular. The magistrate, in my view, acted correctly by sending the matter on special review ... as she was not at liberty to rectify nor amend the sentence. In the circumstances, the corrective procedure which this court is allowed to apply in terms of the CPA should be granted and the incompetent and irregular sentence should be set aside, with the result that the matter be remitted back to the regional magistrate to consider a just sentence,” said the judge.
Cape Times