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Davies v The State (Criminal Appeal Nos. 20 and 21 of 1991) [1991] BWCA 2 (1 July 1991)

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At the hearing of the applications for leave to appeal the Applicant maintained that he was serving an effective sentence of thirteen years. Because the Appeal Court did not have full information before it, it requested that the State should investigate the matter and the application then stood down in order that this could be done.
At the resumed hearing the State confirmed that the calculation of the Applicant was correct and that his effective term of imprisonment was thirteen years commencing from November, 1987. It seems to me that, from the documents produced to this Court, this is correct. There were, in addition to the sentences imposed in the cases already referred to, two sentences of six months imprisonment which were for the unlawful possession of dagga and for burglary and theft another for bottle-store breaking for which he received four years imprisonment and which on review, was declared by the learned Chief Justice to run "consecutively with any sentence of imprisonment he then was serving."
The State conceded that the Court on appeal was entitled to have regard to any sentence or sentences being served by the Applicant at the time of the hearing which were imposed in cases which were not the subject of the application. However, it was contended that the total period of imprisonment was not something which should be altered in the present case and that thirteen years was appropriate.
The criminal record of the Appellant is appalling. At the time the offences which are the subject of the present

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applications were committed he was aged twenty-four years. His criminal career commenced when he was fifteen. His early crimes were visited largely by strokes. Later, there were sentences of imprisonment, but mostly not of great length. Strokes continued to be imposed. The Applicant is a confirmed criminal and the stage has now been reached when hope of reformation must virtually be abandoned and the interests of society must be given priority. This does not mean that this young man should be kept for the rest of his life in custody. However, what it does mean is that a lengthy sentence is justified purely to protect society from his depredations. Against this must be weighed the consideration of common humanity. If, as appears to be the case, the Applicant will serve thirteen years from November 1987 ie a further eight and a half years from now, I do not think that this is inappropriate nor, in the circumstances, unduly harsh.
I turn now the question of strokes. The Applicant is also to receive a further nine strokes in terms of the two cases which form the subject matter of the present applications. When the sentences of strokes were imposed this Court had not laid it down that, where strokes were not made compulsory by statute, the trial Court should not continue to impose a punishment the only effect of which would be to further brutalize the recipient without there being any prospect of persuading him to change his way of life.(See too S. v Nkoana 1985 (2) S.A. 395 (T) at

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401 H). An equally valid reason for not imposing strokes in the present case is the fact that he is being subjected to a long term of imprisonment. This Court held that corporal punishment is inapropriate (See too S. v. Ven n' Ander 1989 (1) SA 532 (A) at 543). Punishment is not compulsory. The order in both cases in the following:
1.       The application for leave to appeal against sentence is granted.
2.       The appeal is upheld in so for as it relates to the imposition of strokes.
3.      

I agree :
I agree

DELIVERED IN OPEN COURT IN LOBATSE ON THE 1991
DAY OF JULY,