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IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: CA 7/11

In the matter between:

WILLIAM MOTSAATHEBE …...........................................................................APPELLANT

and

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

CRIMINAL APPEAL

HENDRICKS J & LANDMAN J

DATE OF HEARING : 13 MAY 2011

DATE OF JUDGMENT : 26 MAY 2011

FOR THE APPELLANT : ADV HLAHLA

FOR THE RESPONDENT : ADV DIKGOPO

JUDGMENT

LANDMAN J:

[1] The appellant was convicted on 13 September 2008 of attempted murder by the Regional Magistrate’s Court sitting at Itsoseng. The appellant was sentenced to 12 (twelve) years imprisonment. This appeal is only against the sentence with leave of this court.

[2] In arriving at the sentence the learned Regional Magistrate took into account that the appellant was:

• a first offender.

• 28 years old.

• maintained his child of 18 (eighteen) months old. The mother of the child was unemployed.

• in custody for a period of 2 (two) years prior to sentence.

• declared unfit to possess a firearm.

[3] The court also took into account the absence of the planning of the crime.

[4] Mr Hlahla, who appeared for the appellant, submitted that although the court a quo considered these aspects the court did not place the proper weight on them. He went on to submit that the sentence was too harsh and that a period of the sentence should be suspended.

[5] Before considering Mr Hlahla’s submission it is important to record the nature of the crime.

[6] The Magistrate dealt with this aspect in her judgment on sentence. She took into account that a firearm was used and that the complainant was shot and wounded. The complainant received medical treatment for more than a year. He was not able to walk. He took a long time to recover. He lost some amenities of life. In the course of her judgment the Learned Regional Magistrate added “you shot to kill and it was by pure luck for yourself and the complainant that he survived this incident.” The Magistrate also took into account the appellant’s lack of remorse.

[7] The sentencing task is primarily the prerogative of the trial court, and a court of appeal may not interfere with the sentence imposed, unless it can be shown that the trial court misdirected itself, or the sentence imposed is shockingly inappropriate and unduly harsh or that the trial court committed an irregularity. See S v Rabie 1975 (4) SA 855 (A).

[8] There is no doubt that a period of incarceration is called for as regards the commission of this crime. But the sentence is too harsh considering that the period the accused spent in custody is tantamount to about four years post conviction imprisonment.

[9] Moreover the accused is a first offender. The nature of the crime and the consequences of the crime and the interests of the society must also be given their due. I am of the view that too great a weight was attached to these aspects. The sentence must be replaced with an appropriate sentence. In my view a sentence of nine (9) years would be appropriate.

[10] In the result I would uphold the appeal and replace the sentence of the learned Regional Court Magistrate with one of nine (9) years imprisonment.

A A LANDMAN

JUDGE OF THE HIGH COURT

I concur

1. The appeal is upheld.

2. The sentence is set aside and replaced with one of nine years imprisonment.

R D HENDRICKS

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPELLANT : JUSTICE CENTRE

FOR THE RESPONDENT : STATE ATTORNEY

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