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Weideman v S (CC 58/2013) [2015] ZAECPEHC 49 (26 August 2015)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

 

CASE NO: CC 58/2013

Date Heard: 24 August 2015

Delivered: 26 August 2015

In the matter between

SHANE LINDSAY WEIDEMAN                                                                                  Applicant

And

THE STATE                                                                                                            Respondent

JUDGMENT


GOOSEN, J.

[1] The applicant has applied for leave to appeal against the sentence of 20 years’ imprisonment imposed on him before the rape of an 11-year-old child. The sentence was imposed on 12 August 2014. The application for leave to appeal was launched on 17 August 2015. An application for condonation for the late filing of the application for leave to appeal was filed simultaneously. The application was not opposed by the state and, accordingly, at the hearing of the matter condonation was granted.

[2] The essential grounds upon which leave to appeal is sought are that that this court, in imposing a sentence of 20 years’ imprisonment, over emphasised the seriousness of the offence and the interests of society at the expense of the personal circumstances of the applicant. It is further submitted that this court erred in finding that the retributive purposes of punishment for so appalling a crime can be met by an appropriately lengthy period of imprisonment short of the prescribed period of life imprisonment. It was submitted that the court should have found that a period of imprisonment substantially shorter than the 20 years’ imprisonment imposed would be appropriate to meet the retributive purposes of punishment for the crime. It was therefore argued that the sentence imposed is so unreasonable that no other court would have posted. Mr. Lindoor, who appeared for the applicant nevertheless indicated during argument that it was not his submission that the sentence imposed could be described as shockingly inappropriate in the circumstances of the matter.

[3] It is of course trite that in determining whether leave to appeal ought to be granted to an applicant, the court is required to decide whether there is a reasonable prospect that another court might come to a different conclusion. Where leave to appeal is sought only to appeal against a sentence imposed, consideration must be given to the approach that an appeal court takes in dealing with an appeal on sentence, in order to decide whether there is a reasonable prospect that another court might come to a different conclusion.

[4] The imposition of sentence is a matter that falls within the exercise of the trial court’s discretion. For this reason an appeal court will not readily interfere with the sentence imposed by a trial court. It will do so where it is established that the trial court either misdirected itself on either the facts or the law and order where it is established that the sentence imposed is vitiated by some irregularity. An appeal court is also at liberty to interfere with the sentence imposed where it is established that the sentence is so disproportionate as to induce shock so that the appeal court is able to come to the conclusion that the sentence was not reasonably imposed. An appeal court will not interfere merely on the basis that the sentence imposed is not one that it would have imposed.

[5] As already indicated the basis upon which the application for leave to appeal was founded was not that the sentence imposed is one which induces a sense of shock. Instead the argument proceeded upon a rather more limited basis: namely that a shorter period of imprisonment would have been appropriate in that such shorter period of imprisonment would have met all of the purposes of sentence, including the retributive purpose to which this court referred in imposing sentence.

[6] In developing the argument reference was made to the matter of Mudau v The State [1] in which a sentence of life imprisonment or the rape of a 13-year-old child by her uncle was reduced, on appeal, to a sentence of 15 years imprisonment. In that matter. Consideration was given to similar cases which deal with the imposition of sentence in the context of a finding that there are substantial and compelling circumstances present (cf. S v Abrahams[2] ; Bailey v S[3]; Ndou v S[4]).

[7] Each matter must of course be considered on its own merits. In this instance, this court found that there are indeed substantial and compelling circumstances present which warrant the imposition of a sentence other than life imprisonment. It was on that basis that consideration was given to what would be an appropriate sentence to impose. In the Mudau, Bailey and Ndou matters, the appeal court was concerned with having to decide whether the trial court had erred in not finding that there were substantial and compelling circumstances present. Once that finding was made the appeal court was at large to impose an appropriate sentence. In the Bailey matter the sentence of life imprisonment was confirmed.

[8] In this case the imposition of 20 years’ imprisonment occurred in the first instance and accordingly the question to be addressed in this application for leave to appeal is whether there is a reasonable prospect that an appeal court might come to the conclusion that the sentencing discretion was not reasonably exercised in the circumstances.

[9] The only basis advanced in this regard is that the personal circumstances of the applicant were under emphasised and that this court considered that it would be appropriate to impose a sentence short of life imprisonment. That finding, as the judgment makes clear, relates to the question as to whether life imprisonment is a proportionate sentence in the circumstances. This court found that it was not and for that reason found that substantial and compelling circumstances were indeed present which warranted a departure from the prescribed sentence of life imprisonment.

[10] The imposition of a period of 20 years’ imprisonment constituted an exercise of this court’s sentencing discretion, having regard to all of the circumstances present. It was not suggested that this court had erred in this regard other than that it exercised that discretion in favour of a prison sentence lengthier than that which the applicant considers reasonable in the circumstances, namely a period of approximately 12 to 15 years’ imprisonment. In my view, that is not a basis upon which it could be suggested that there is a reasonable prospect that another court might come to a different conclusion. I am accordingly unable to find that there is a reasonable prospect of success on appeal and accordingly the application must fail.

[11] I therefore make the following order:

The application for leave to appeal is dismissed.

_______________________

G. GOOSEN

JUDGE OF THE HIGH COURT

 

Appearances:                    For the Applicant

                                                Mr. Lindoor

                                                Lindoor & Associates

 

                                                For Respondent

                                                Adv. Loots

                                                Director of Public Prosecution


[1] (764/2012) [2012] ZASCA 56 (9 May 2013)

[2] 2002 (1) SACR 116 (SCA)

[3] (454/11) [2012] ZASCA 154 (1 October 2012)

[4] (93/12) [2012] ZASCA 148 (28 September 2012)