Selli v The State

The appellant, Gino Luigi Selli, was convicted on his plea of guilty on three counts: (1) robbery with aggravating circumstances (read with s 51(2) of the Criminal Law Amendment Act 105 of 1997), during which a motor vehicle and cellular phone worth approximately R21,000 were taken using a firearm; (2) unlawful possession of a firearm (a revolver 38 special); and (3) unlawful possession of ammunition (1 live round). He was sentenced by the regional magistrate to 15 years' imprisonment for robbery, 5 years for unlawful possession of a firearm, and 6 months for unlawful possession of ammunition, all to run concurrently. The regional magistrate further ordered that the appellant serve at least 4/5 of the sentence (12 years) as a non-parole period. The appellant's application for leave to appeal to the regional magistrate was refused, as was his petition to the High Court. He then applied for leave to appeal against the refusal of his petition. The court below (Mothle and Kollapen JJ) granted leave to appeal to the Supreme Court of Appeal, but this order was problematic given the Superior Courts Act 10 of 2013 had come into effect.

• Whether the court below had jurisdiction to grant leave to appeal to the Supreme Court of Appeal in light of s 16(1)(b) of the Superior Courts Act 10 of 2013
• Whether the regional magistrate erred in failing to find substantial and compelling circumstances justifying a departure from the prescribed minimum sentence of 15 years' imprisonment
• Whether the regional magistrate was competent to order a non-parole period under s 276B(1)(b) of the Criminal Procedure Act 51 of 1977
• Whether there are reasonable prospects that another court might interfere with the sentence imposed

The appeal was upheld. The order of the court below refusing the appellant leave to appeal against his sentence was set aside and replaced with an order granting the appellant leave to appeal against the sentence imposed by the regional magistrate to the Gauteng Division of the High Court, Pretoria.

The binding legal principles established are: (1) Under s 16(1)(b) of the Superior Courts Act 10 of 2013, only the Supreme Court of Appeal has the power to grant special leave to appeal from a decision by a High Court given on appeal to it; a High Court sitting as a court of appeal does not have jurisdiction to grant leave to appeal to the SCA. (2) A sentencing court is required by s 51(3) of the Criminal Law Amendment Act to conduct a diligent, conscientious and punctilious enquiry into the existence of substantial and compelling circumstances before imposing a prescribed minimum sentence. Failure to do so constitutes a serious misdirection. (3) A sentencing court must afford counsel the opportunity to address it on the existence or otherwise of substantial and compelling circumstances. (4) Section 276B(1)(b) of the Criminal Procedure Act does not authorize a regional magistrate to impose a non-parole period in the manner ordered in this case (requiring service of at least 4/5 of the sentence).

The court made observations about the importance of proper judicial enquiry to avoid injustice, noting that 'a failure by a sentencing officer to be diligent, conscientious and punctilious in his or her search for substantial and compelling circumstances might result in a sentence which is disturbingly inappropriate and amounts to an injustice.' The court also noted that the purpose of requiring a purposeful enquiry into substantial and compelling circumstances under s 51(3) of the Criminal Law Amendment Act 'is intended to avoid visiting an accused with the severest sentence except in circumstances where there are no weighty or cogent facts which call for a less severe sentence.' These observations emphasize the court's concern with fairness and proportionality in sentencing, particularly under the minimum sentences regime.

This case is significant for several reasons in South African criminal law and procedure: (1) It clarifies the jurisdictional provisions under s 16(1)(b) of the Superior Courts Act 10 of 2013, emphasizing that only the Supreme Court of Appeal itself can grant special leave to appeal from decisions of a Division given on appeal. (2) It reinforces the mandatory duty of sentencing courts to conduct a thorough, purposeful enquiry into the existence of substantial and compelling circumstances under s 51(3) of the Criminal Law Amendment Act before imposing prescribed minimum sentences. (3) It confirms that regional magistrates do not have the power to impose non-parole periods under s 276B of the Criminal Procedure Act in the manner attempted in this case. (4) It demonstrates the consequences of procedural failures by sentencing courts, including failure to allow counsel to address the court on crucial sentencing issues.