Grounds for discharging a custodial sentence for non-custodial sentence.

The law: COMMUNITY SERVICE ORDER ACT Act 17 of 2002 – 18 November 2002

Section 3 Community service order

(1) Where a Court—
(a) convicts a minor and, in accordance with the Juvenile Offenders Act, sentences him to a
term of imprisonment, not being a sentence fixed by law; or
(b) convicts a person of the age of 18 or over and sentences him to a term of imprisonment
not exceeding 2 years and not being a sentence fixed by law, the Court may suspend the
sentence of imprisonment and make a community service order.
Section 4 the preconditions for community service order.
(3) when a court makes a community service order, it shall
(a) take into account the convicted person’s free time, including weekends;
(b) consider whether the convicted person may be a threat to the public safety;
© ensure that the work to be performed by the convicted person will benefit the state,
statutory body, charitable institutions or a voluntary organizations.

1. THOMAS L.D. V THE STATE 2006 SCJ 52

In this case the appellant was appealing against his sentence to undergo 12 months of
imprisonments on the ground that the sentence was manifestly harsh and excessive. The
grounds that have been put forward by the learned counsel for the appellant was as follows:
the appellant had a clean record, the appellant has voluntarily attended therapy treatment, the
person has proved to be a changed person and has been able to reinstate into the community,
the person has shown remorse. All these have been taken into consideration and therefore the
judges remitted the case back to the inferior court to consider the grounds mentioned above.
2. Seevananda Savan v The State And Abedeen Payen V. The State
The two appellants were appealing against their sentence. They pleaded not guilty at the
beginning, but on the day of the trial they changed their mind to guilty. The grounds on
which they were arguing are as follows: the sentence was manifestly harsh and excessive, the
magistrate failed to attach greater wight to medical evidence, circumstances of the case
whether it was serious enough to warrant a custodial sentence, clean records of the appellants.
Furthermore, the principle in the case of Heerah v The state was adopted where it was stated
that: a community service order (CSO) is far from being a “let-off” for an offender as it
imposes upon the offender “substantial restriction of liberty and holds him to account to
the community for his misdeeds whilst having the additional virtue, as compared to the other
forms of punishment, of affording him an opportunity to mend his life in the open. Hence, the
choice open to him between serving a prison sentence or avoiding it by doing some useful
civic duty to the community and repaying his debt to society.”
Hence, the judges concluded while a custodial sentence was warranted in the circumstances,
suspension of that custodial sentence in accordance with section 3 of the Community Service
Order Act ought to have been considered by the learned Magistrate. We therefore remit this
case to the learned Magistrate, who imposed the sentence, for him to proceed in
accordance with the procedure set out under sections 4, 5 and 6 of that Act, and if
the conditions set out under these sections are met, to suspend the custodial sentence and
make a community service order.