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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG PROVINCIAL DIVISON

 

CASE NO: A288/2018

 

In the matter between:

 

SIBUSISO FRANS FAKU                                                                                           Appellant

 

and

 

THE STATE                                                                                                                  Respondent

JUDGMENT

SARDIWALLA J

INTRODUCTION:[1]

[1]          This is an appeal against sentence only. The appellant appeared in the Regional Court Gauteng, held at Benoni on one charge of robbery with aggravating circumstances. He was also declared unfit to possess a firearm in terms of 103(1) of the Firearms Control Act 60 of 2000. The. appellant pleaded not guilty and was sentenced to an effective period of 18 years of imprisonment.

[2]          On 26 April 2018 the appellant was granted leave to appeal against his sentence only. The appellant was legally represented in all proceedings against him.

 

ISSUES ON APPEAL

[3]          The issue is whether the sentence imposed by the magistrate was disturbingly disproportionate. The appellant in its heads of argument stated that the trial court erred in sentencing the appellant without allowing the parties to make submissions on the issue of imposing a sentence in excess of the applicable minimum sentence or place sufficient evidence in mitigation to be placed on record. The appellant therefore contends that the court misdirected itself in finding that the present matter warranted an imposition of a higher sentence as the Court was silent on the existence or non-existence of compelling circumstances. Further that the magistrate failed to consider the impact of reformation and rehabilitation would have on the appellant if a lesser sentence was imposed.

 

LAW AND ANALYSIS

[4]          It is trite that sentencing remains pre-eminently within the discretion of the sentencing court. In Makela v The State 2012 (1) SACR 431 (SCA) para [9], Bosielo JA stated the following:

 

'This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served. The limited circumstances under which an appeal court can interfere with the sentence imposed by a sentencing court have been distilled and set out in many judgments of this Court. See S v Salzwedel 1999 (2) SACR 586 (SCA) at 591F-G; S v Pieters 1987 (3) SA 717 (A) at 727F-H; S v Ma/gas 2001 (1) SACR 469 (SCA) para [12]; Director of Public Prosecutions v Mngoma 2010 (1) SACR 427 (SCA) para [11]; and S v Le Roux & others 2010 (2) SACR 11 (SCA) at 26b-d. '

 

[5]          It was held in S v Salzwedel 1999 (2) SACR 586 (SCA) that:

 

"An appeal Court is entitled to interfere with a sentence imposed by a trial court in a case where the sentence is 'disturbingly inappropriate: or totally out of proportion to the gravity or magnitude of the offence, or sufficiently disparate, or vitiated by misdirection of a nature which shows that the trial court did not exercise its discretion reasonably. "

 

[6]          The appellant argued that despite his previous convictions for theft committed in 2014 but that this was his first conviction for robbery. Counsel therefore submitted that he did not possess the propensity to commit violent crimes. Counsel submitted that the court failed to consider the personal circumstances of the accused prior to sentencing him. It was argued that the weapon used was merely to threaten the complainant and that the complainant was not stabbed or did not suffer any serious bodily injuries. Further that the complainant did not suffer any loss as the items that were stolen were recovered, except for the loss of R200. It was also argued that the appellant is fairly young and therefore is a prime candidate for rehabilitation and this together with the fact that he was detained on custody for a year awaiting trial was not taken into consideration by the learned magistrate when sentencing the appellant. It was submitted that all these mitigating factors accumulatively should have deterred the court from prescribing the minimum sentence.

[7]          I have read the judgments of the court a quo and I agree with the appellant that the learned magistrate was silent on the issue as to whether there were any substantial and compelling circumstances to warrant the deviation from the prescribed minimum sentence. I do however, also agree with the learned magistrate reasoning that the appellant was given an opportunity in terms of section 276(1)(i) when he was released after only serving 10 months of his 5-year sentence for his conviction of theft and that upon his release he decided to commit a more serious offence which should not should not be tolerated in society. It is common practice that where there is a prescribed minimum sentence that a court should not proceed with sentencing unless the personal circumstances of the accused are placed before the court. I am satisfied that the Counsel for the appellant in the court a quo Mr Willis had the opportunity to make submissions in mitigation of the appellants personal circumstances, which he did, but his failure to not request that the court consider a probation officers report or call witnesses to testify in·mitigation cannot be said to a misdirection of the court or the judicial officer.

[8]          A court is not called upon to be a referee between the parties but has a judicial duty to apply the law to the facts of the matter before him. There is sufficient evidence against the appellant on sentencing that must be attached to give due weight to the gravity of the crimes for which the appellant has been convicted to determine whether the sentences were 'disturbingly inappropriate'. I am unable to find that even in light of a probation officers report or witness testimonies that the appellants personal circumstances would outweigh the interests of justice. The appellant in my view is what can only be referred to as a habitual criminal with a previous conviction against him and now a second. I find that for the purposes of an appeal against sentence this is relevant as did the court a quo when prescribing his sentence.

[9]          However, having considered both arguments before this court and whilst I agree with the view held in Makela v The State that sentencing is pre-imminently the discretion of the sentencing court, I am of the view that the proceedings were in not in accordance with justice. The respondent has conceded that the learned magistrate in the court a quo misdirected himself by sentencing the appellant to a period in excess of the prescribed minimum sentence. I however agree with the respondent and am of the view that apart from that misdirection by the learned magistrate on the imposition of a period in excess of the prescribed minimum sentence, I find that there exist no substantial and compelling circumstances to warrant a deviation from the prescribed minimum sentence of 15 years' imprisonment. The choice of weapon or lack of serious bodily injuries does not detract from the fact that the appellant has a propencity to commit brazen crimes and such sentence would accordingly not be disproportionate or unreasonable in the circumstances.

 

ORDER

[10]      It is ordered that:

1.           The appeal against sentence is upheld.

2.           The sentence period of 18 years' imprisonment is set aside and replaced with 15 years' imprisonment.

 

 

 

SARDIWALLA J

JUDGE OF THE HIGH COURT

 

 

 

I AGREE

 

 

MUNZHELELE A J

ACTING JUDGE OF THE HIGH COURT

 

 

 

APPEARANCES

Date of hearing                               :           3 September 2019

Date of judgment                            :           12 August 2020

 

Appellant's Counsel                       :           Adv.: J K Kgokane

Appellant's Attorneys                    :           Legal Aid South Africa

Respondent's Counsel                   :           Adv.: L Williams

Respondent's Attorneys                :           NDPP

 

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