---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)

CASE NO: A941/2012

DATE: 28 NOVEMBER 2013

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

PATRIC SITHOLE...........................................APPELLANT

And

THE STATE.................................................RESPONDENT

JUDGMENT

Date ot Hearing: 4 September 2013

Date of Judgment: 28 November 2013

KUBUSHI, J

[1] This is a criminal appeal against the judgment granted by Thlapi J. From the heads of argument of both counsel it appears that there was uncertainty whether the appeal to be heard is in respect of both accused persons or in respect of accused 2 only. The confusion appears to be brought about by the citing of both accused persons in the trial court’s judgment on leave to appeal. It is however apparent from the record that the appeal is in respect of accused 2 only. The record at page 230 from line 4 shows that the request for leave to appeal was made in respect of accused 2 only. It is also evident from the trial court’s judgment on leave to appeal which appears on page 232 of record that the leave to appeal was in respect of accused 2. The appeal before us is thus in respect of accused 2 who is the appellant herein.

[2] The appellant together with a co-accused appeared in the then Transvaal Provincial Division on charges of murder read with the provisions of the Criminal Law Amendment Act 105 of 1997, housebreaking with intent to rob and robbery with aggravating circumstances, attempted murder and possession of an unlicensed firearm and ammunition. He pleaded not guilty on all the counts but was convicted of murder, common assault as a competent verdict to attempted murder, possession of ammunition and unlicensed firearm. He was sentenced as follows: life imprisonment for murder; six months imprisonment for assault; one year imprisonment for contravening section 3 of the Firearms Control Act 60 of 2000 (unlawful possession of a firearm) and one year for contravening section 90 of Firearms Control Act 60 of 2000 (unlawful possession of ammunition). The trial court ordered the sentence on the other charges to run concurrently with the sentence of life imprisonment. The appellant was also declared unfit to possess a firearm. The appellant was legally represented during the trial. He is before us leave to appeal having been granted by the trial court on sentence only.

[3] The case against the appellant and his co-accused was that on the night of 14 July 2007 and in Constantia Park, Pretoria, they accosted the deceased and his family who were from a wedding party. At the time of the attack the deceased was in the company of his daughter, Serelda. The deceased was shot and killed during the attack. The deceased’s daughter, the complainant in the second charge was assaulted and manhandled by one of their assailants. During the attack certain of their articles were forcibly removed. The appellant and co-accused were found and arrested by the police who were called to the scene whilst hiding in the grass along the road in the vicinity of the crime scene.

[4] The appellant’s grounds of appeal are that:-

a. The term of imprisonment for life imposed by the trial court is extraordinarily long and unjust in view of the personal circumstances of the appellant. The sentence should be interfered with and be substituted with a recommended sentence of not less than 20 years.

b. The trial court erred in finding that there are no substantial and compelling circumstances to deviate from the prescribed minimum sentence.

[5] When arguing at the hearing, the appellant’s counsel contended that the analysis of the evidence by the trial court in mitigation of sentence was not approached in the sense of equity and justness. There was an element of emotion on the part of the trial judge - she seemed to be incensed by the fact that the appellant did not co-operate with the police and did not apologise. According to counsel, justness was lacking in the manner in which the judge addressed the appellant during her judgment on sentence. He did not agree with the respondent’s counsel that the trial judge’s attitude was due to the fact that she took the interests of society into account.

[6] The appellant’s counsel contended further that the trial court should have considered the appellant’s personal circumstances cumulatively: he is a first offender, a father of a young family, never attended school and how the offence was committed and found that there are substantial and compelling circumstances. Although, according to him, he was not challenging the trial court’s findings that the murder was premeditated, he was of the view that the murder was secondary and that the appellant and his co-accused had only intended to rob. He submitted that justice demands that a different sentence be imposed that would normally be imposed and suggested a sentence of imprisonment of not less than twenty years.

[7] The offence of murder of which the appellant is convicted falls within the provisions of the Criminal Law Amendment Act 105 of 1997 as amended (the Act). In terms of the Act (section 51 (1) thereof read with part I of schedule II), a sentence of life imprisonment must be imposed when a person is convicted by a High Court of murder when the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977), unless there are substantial and compelling circumstances which justify the imposition of a lesser sentence.

[8] When determining whether there were substantial and compelling circumstances to justify the imposition of a lesser sentence a trial court must consider all the factors that may reduce the blameworthiness of the offender and mitigate his culpability to come to a conclusion whether substantial and compelling circumstances exists or not. See S v Malqas 2001 (1) SACR 469 (SCA) at 481 para [25] g - j - 482 para [25] a - f

[9] When considering sentence the court correctly so, considered the seriousness of the offence, the personal circumstances of the appellant and the interests of society, it balanced those factors against the purpose it wanted to achieve and came to the conclusion that there are not substantial and compelling circumstances warranting deviation from the prescribed sentence. The trial court in my view is correct. There is nothing in the personal circumstances of the appellant, either individually or cumulatively, which could have persuaded the trial court to deviate from imposing the prescribed sentence.

[10] To my mind, the personal circumstances of the appellant are overshadowed by the appellant’s moral blameworthiness. Of the two assailants the appellant played a leading role. The trial court made a finding that he is the one who shot and killed the deceased. The court did not make a finding of joint possession in respect of the firearm and ammunition. The appellant is the one found guilty of the unlawful possession of the firearm and ammunition. The submission by the appellant’s counsel that the murder was not premeditated but secondary to the robbery is flawed. The trial court has already made a finding that the murder was premeditated. Even so, by taking the firearm with him when he went to the deceased house the appellant should have foreseen the possibility of things going wrong and in defending himself someone being shot and killed.

[11] The argument by the appellant’s counsel that the trial court’s analysis of the evidence in mitigation of sentence was not approached in the sense of equity and justness has no foundation. From the record as it stands there is no evidence that the trial court did not approach the evidence with a sense of equity and justness. When reading the part of the record where the trial court analysed the evidence in mitigation, I did not get a sense that the trial court was emotional as suggested by the appellant’s counsel but rather emphatic. The issue in this case are emotive as it is and the trial court cannot in my view be faulted for having being emphatic in its judgment.

[12] The approach to appeals against sentence on the ground of excessive severity or excessive leniency where there has been no misdirection on the part of the court which imposed the sentence is that, where there exists a ‘striking’ or ‘startling’ or ‘disturbing’ disparity between the trial court’s sentence and that which the appellate court would have imposed, interference is justified. In such situations the trial court’s discretion is regarded as having been unreasonably exercised. For interference to be justified, it is not enough to conclude that the appellate court’s choice of penalty would have been an appropriate penalty but the appellate court must conclude that its choice of penalty is the appropriate penalty and that of the trial court is not. See S v Sadler 2000 (1) SACR 331 para [8] – [10].

[13] To my mind, in this instance, the trial court’s choice of sentence is appropriate. In its assessment of sentence, the trial court gave a balanced consideration of all the factors pertaining to sentence - the nature and seriousness of the offence, the interests of society and the personal circumstances of the appellant. This term of imprisonment is not in my view disproportionate to the totality of the appellant’s mitigating factors and should not be interfered with.

[14] In the circumstances the appeal is dismissed.

E. M. KUBUSHI, J

I concur

SIDLOVA, AJ

I concur and it is so ordered

MAUMELA J

Appearances:

On behalf of the appellant: Adv. A. J. Mojuto

Instructed by:

PRETORIA JUSTICE CENTRE

2nd Floor FNB Building

206 Church Street

PRETORIA 0001

On behalf of the respondent: Adv. A. Roos

Instructed by:

DIRECTOR OF PUBLIC PROSECUTIONS

Presidential Building

28 Church Square

PRETORIA 0001

---