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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: CAF09/2015

DATE: 27 AUGUST 2015

In the matter between:

[D………] [L………..]...............................................................................................................Appellant

And

THE STATE............................................................................................................................Respondent

FULL BENCH

CRIMINAL APPEAL

HENDRICKS J; KGOELE J; CHWARO AJ

DATE OF HEARING : 14 AUGUST 2015

DATE OF JUDGMENT : 27 AUGUST 2015

COUNSEL FOR THE APPELLANT : MS. NTILANE

COUNSEL FOR THE RESPONDENT : ADV. MUNYAI

JUDGMENT

HENDRICKS J

[1] The Appellant and his co-accused were arraigned in the court a quo charged with murder and robbery with aggravating circumstances. He pleaded guilty to the charges preferred against him and was resultantly convicted. He was sentenced to life imprisonment for the murder count and fifteen (15) years imprisonment for the count of robbery with aggravating circumstances. He appeal, with leave of the court a quo, the sentence imposed upon him. Hence this appeal.

[2] The facts can be succinctly summarized as follows. The Appellant and his girlfriend [P……] visited the deceased and spent the night there. They all consumed alcohol beverages. [P……] then informed the Appellant that the deceased fiddled with her private parts. The Appellant was angered by this report and he attacked the deceased. He assaulted him and also strangled him with an electric cord until he died. They then removed the properties of the deceased and placed it in his (deceased’s) motor vehicle and drove off.

[3] The appeal is premised on the ground that the court a quo erred in finding that there are no substantial and compelling circumstances present which warrants a deviation from imposing life imprisonment as a sentence for the count of murder and fifteen (15) years for the count of robbery with aggravating circumstances.

[4] The following personal circumstances of the Appellant were placed on record:

1. Before his arrest he was gainfully employed as a block man, earning R8000 to R9000 per month.

2. He has two minor children. A boy aged two and a half years and a girl aged eleven years.

3. He was paying maintenance for his daughter in the amount of R1 500 per month.

4. He has been in custody for two years awaiting trial.

5. The deceased was known to him as he was his mother’s employer, and he cared for the Appellant as his own son.

6. He was addicted to cathomene for approximately three years. He has been to rehabilitation centres for drug and alcohol abuse.

7. He was intoxicated and under the influence of drugs when he committed the offences.

8. He became angry and aggressive when the deceased attempted to have sexual relations with Petro. Because of his diminished responsibility it affected his mental health and he could not show self-restraint.

9. There was lack of planning in respect of the offences.

10. He has shown remorse.

11. He pleaded guilty.

12. He can be rehabilitated.

13. He is thirty two (32) years of age.

[5] The Appellant has the following previous convictions:

• On 11 October 2000, he was found guilty of malicious damage to property, and sentenced to pay a fine of R600 or sixty (60) days imprisonment.

• On 14 September 2011, he was found guilty of abuse of dependence producing substances and the sentence imposed was a fine of R1000 or three (3) months imprisonment, wholly suspended for five (5) years, on condition that he is not found guilty in terms of section 4 (B) of Act 140 of 1992 during the period of suspension.

• On 4 August 2004, he was found guilty of assault and two counts of malicious damage to property. All counts were taken as one for purposes of sentence. He was fined R1000 or six (6) months imprisonment.

• On 16 February 2006 he was found guilty of theft, and was sentenced to pay a fine of R1 800 or six (6) months imprisonment, of which R1000 or four (4) months imprisonment was suspended for a period of five (5) years, on condition that he does not commit theft during the period of suspension.

• On 18 April 2006, he was found guilty of assault and sentenced to pay a fine of R1000 or two (2) months imprisonment, wholly suspended for five (5) years, on condition that he does not commit a similar offence.

• On 13 April 2007, he was found guilty of assault and sentenced to pay a fine of R3000.

• On 2 July 2008, he was found guilty of theft, and sentenced to pay a fine of R2000 or two (2) months imprisonment, wholly suspended for five (5) years, on condition that he does not commit theft. He was declared unfit to possess a firearm to.

• On 6 January 2009, he was found guilty of two (2) counts of theft. The two counts were taken together for purposes of sentencing, and a four (4) year term of imprisonment was imposed upon him.

[6] Sentencing lies pre-eminently within the discretion of the trial court. After all, any sentence imposed, like any other conclusion, should be properly motivated.

See: S v Maake 2011 (1) SACR 263 (SCA)

In S v RO and Another 2010 (2) SACR 248 (SCA) Heher JA writing the majority judgment stated the following:-

“[30] Sentencing is about achieving the right balance (or, in more high-flown terms, proportionality). The elements at play are the crime, the offender and the interest of society or, with different nuance, prevention, retribution, reformation and deterrence.”

In S v Malgas 2001 (1) SACR 469 (SCA) at page 482 F-G it was stated:-

“All factors… traditionally taken into account in sentencing… thus continue to play a role; none is excluded at the outset from consideration in the sentencing process. The ultimate impact of all the circumstances relevant to the sentencing must be measured against the composite yardstick, ('substantial and compelling’) and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.”

[7] Our appellate courts have, in terms of long standing practice, reserved for themselves the right to interfere where a sentence has been vitiated by a material misdirection or where it is shocking or startling inappropriate. Counsel for the Respondent (State) submitted that no misdirection was committed by the court a quo.

[8] Counsel for the Appellant stressed the fact that the Appellant pleaded guilty which, so it was submitted, is a sign of remorse or contrition. The court a quo dealt extensively with this proposition and even referred to the relevant case law.

See: • S v Mashinini and another 2012 (1) SACR 604 SCA at paragraph [24]

• S v Matyityi 2011 (1) SACR 40 SCA at paragraph [23]

[9] In the well – reasoned judgment on sentence, the court a quo took into consideration all the facts and circumstances relevant for the impositioning of an appropriate sentence. This reasoning and conclusion cannot be faulted. In my view there is no basis upon which the sentence imposed can be interfered with. Resultantly, the appeal against sentence should fail.

Order:

Consequently the following order is made:-

1. The appeal against sentence is dismissed.

2. The sentence imposed by the court a quo is confirmed:

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

A M KGOELE

JUDGE OF THE HIGH COURT

I agree.

OK CHWARO

ACTING JUDGE OF THE HIGH COURT

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