Awaiting-trial jail time comes under scrutiny in appeal hearing

THE issue of awaiting-trial accused who often sit behind bars for years before they are sentenced, and then receive a life sentence, should be looked at by the Supreme Court of Appeal.

This is according to a judge sitting in the Western Cape High Court who presided over an appeal by three men convicted of murder and sentenced to life in jail. The trio complained that they had been awaiting trial in prison for nearly six years before they were sentenced.

This was because, for several reasons, the trial took a long time to conclude. According to them, it was unfair that they were each given a life sentence – 25 years in jail before they can be considered for parole – without the judge taking into consideration the six years they had already spent in jail.

Judge Patrick Gamble said the period of pre-sentence detention in this matter was extraordinarily long. He said the court was unable to find case law of any comparable period which had been considered by any other court.

The cases which came before the Supreme Court on pre-sentencing detention all related to instances of finite sentences, where adjustments to the imposed sentences were notionally possible. “This court was unable to find any instances where that factor was considered by the Supreme Court in respect of an indeterminate sentence such as life.”

The judge referred to two judgments in which judges declined to find that the pre-sentence detention period per se qualified as a substantial and compelling reason to avoid the prescribed sentence of life behind bars.

However, Judge Gamble said, those were both judgments of single judges in provincial divisions and provided guidance rather than binding precedent.

“Notwithstanding the proclamation by some that this is the bestrun division of the high court in the country, long delays in the conclusion of criminal trials in particular have become endemic in the Western Cape,” he commented.

The judge added that delays of two to three years or more were not uncommon. “They are, in fact, by and large the norm,” he said.

According to him, the question of the plight of awaiting-trial accused who had not been granted bail and who must remain behind bars before their sentences began was therefore a matter of concern.

He said the sentences imposed on the accused were appropriate in the circumstances (where the court found no mitigating circumstances to warrant a lesser sentence than life) and would otherwise not warrant the consideration on appeal.

“But in light of the fact that the Supreme Court has not yet spoken on the consideration of pre-sentencing detention in cases where the sentence ultimately imposed was life imprisonment, warrants, in my respectful view, that leave to appeal be granted in this matter,” the judge said.

He referred the matter to the Supreme Court of Appeal to determine whether a lengthy period spent behind bars awaiting the outcome of a criminal trial should have an influence on a possible life sentence.