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NOT REPORTABLE/  REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No: CA 14/2014

In the matter between:                                                                        

SIVUYILE NCUBENI                                                                                             Appellant

And

THE STATE                                                                                                       Respondent

Coram:                       Chetty J, Plasket J and Revelas J

Heard:                        25 May 2015

Delivered:                  29 May 2015

Summary:                  Appeal - Against sentence - Whether appellant's personal circumstances constitute substantial and compelling circumstances - Sentence clearly not unjust - Appeal dismissed.

JUDGMENT

CHETTY J: -

[1]        The  appellant, with  the  requisite  leave granted  by the trial  court,  appeals against  the  statutorily  ordained sentences  of  life and fifteen  years  imprisonment imposed upon him, pursuant to the provisions of s 51 (2) of the Criminal Law Amendment Act [1] , consequent upon his conviction on charges of murder and robbery with aggravating circumstances respectively. In granting the appellant leave to appeal against the sentences imposed, the trial court concluded that another court "may find that the applicant's personal circumstances accumulatively taken amount to substantial and compelling circumstances warranting a  departure from the prescribed sentences."

[2]        In his address on sentence the appellant's counsel detailed those personal circumstances as - the appellant was twenty seven years of age; unmarried but the father of a two year old child who resided with his mother; he had received rudimentary education, having dropped out of school whilst in standard two; his working life consisted mostly of casual work, ferrying sand on his father's tractor ; that he was a first offender and the product of a deprived upbringing with the concomitant lack of meaningful opportunities.

[3]        The appellant's personal circumstances are not unique. Millions  of  our citizenry find themselves in a similar, if not worse position. In my judgment , personal circumstances, per se, do not rank as substantial and compelling circumstances as envisaged  by  s  51  (2).  Malgas [2]  emphasized  that  ultimately, the  question  for determination  by the sentencing court  is whether , in balancing the mitigating and aggravating factors , the circumstances of the case, cumulatively regarded, render the ordained sentence  unjust and call for a departure therefrom. The answer, in casu, was a resounding no. In my judgment , the appellant's personal circumstances are not decisive and must give sway. The enormity of the crime, the premeditativeness inherent in the modus operandi of visiting the isolated farm under the false pretext of seeking employment, biding his time to ensure that no-one would witness his dastardly deed, and, finally, brutally executing the deceased, far outweigh any charitable interpretation of whatever mitigatory factors there may have been. The circumstances attendant upon the murder of the deceased imperatively called for the imposition of the prescribed sentences. In the result the following order will issue: -

The appeal is dismissed.

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D. CHETTY

JUDGE OF THE HIGH COURT

Plasket J 

 

I agree.

_________________________

C.PLASKET

JUDGE OF THE HIGH COURT

 

Revelas J

I agree.

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E. REVELAS

JUDGE OF THE HIGH COURT

Oba the Appellant:                                      Adv E Crouse

                                                                           Legal Aid South Africa , Port Elizabeth

                                                                          Tel: (041) 408 2800

Obo the Respondent:                                 Ad G.G Tuner

                                                                           Director of Public Prosecutions, Grahamstown

                                                                           Tel: (046) 603 200

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