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[2014] ZAGPJHC 332
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Faku v S (A325/2013) [2014] ZAGPJHC 332 (20 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: A325/2013
DPP
REF NO: JAP 2013/0348
DATE:
20 MARCH
In the matter
between:
FAKU,
MOSES
............................................
Appellant
And
THE
STATE
............................................
Respondent
J U
D G M E N T
MAKUME, J:
[1] The appellant
was convicted in the Regional Court Orlando on one count of attempted
murder and sentenced to 10 years imprisonment.
It is with leave of
that court that he appeals against the sentence passed.
[2] The main ground
of appeal against sentence seems to be what appears in the
appellant’s heads of argument namely that the
sentence is harsh
and not proportionate to the crime committed especially that 10 years
imprisonment is the prescribed minimum
sentence for the crime of
attempted murder where a firearm was used and in any event where the
accused person is a third or subsequent
offender.
[3] His Lordship
Moola AJ in the matter of S v Mwase and Others
2011 (2) SACR 462
(FB)
at paragraph [26] said that where a court departs from the applicable
minimum sentence then such court is at large to impose
any sentence
it considers appropriate using the applicable minimum sentence as a
benchmark.
[4] In the present
matter the appellant used a knife. He is a repeat offender. Had he
used a firearm. That fact alone would have
brought him within the
provisions of section 51(2)(l) of the
Criminal Law Amendment Act 105
of 1997
read with Schedule 2
Part IV.
However, it is my view that a
knife is as much lethal as a firearm and the trial court did not err
in imposing a sentence of 10
years. The magistrate says the
following in passing sentence:
“The present
offence is one that involves totally unnecessary and brutal violence
directed at a defenceless woman something
that you have also done in
the past.”
[5] The appellant
was convicted of assault on the 24th August 2007 for which he was
given a wholly suspended sentence of 3 years
suspended for 5 years.
The five year period had not as yet expired when he committed the
present offence. The magistrate was correct
in describing him as a
dangerous person who constitutes a danger to the community.
[6] In the present
matter the appellant was driven by jealousy. He could not stand the
sight of losing the complainant to another
man. He chased the
complainant and her new lover into a house with a knife. He then
proceeded to drag and force the complainant
to go with him despite
her protestations. She was helpless. The new lover had run away in
fear of being injured. The members
of the community looked on
helplessly as she was pulled along. It had to take some vigilant
school children who took some action
which saved the complainant but
not before she had sustained an ugly stab wound on her chest.
[7] The appellant
was not open to the court. He put forward a defence that was
laughable despite the solid evidence of three eyewitnesses.
He stood
by his nonsensical defence.
[8] It was argued on
behalf of the appellant that the learned magistrate did not consider
the possibility of rehabilitation. Reference
was made to the
previous non-custodial sentences imposed on the appellant. With
respect this argument is untenable. The courts
have previously kept
the appellant out of prison with the hope that he would rehabilitate
and turn a new leaf. This has not worked
for he has repeatedly shown
aggression towards women. He has accordingly abused the trust and
opportunity he was afforded and
should now pay the price.
[9] In S v Pieters
1987 (3) SA 717
(A) Botha JA stated at page 734D-F that the decisive
question facing a Court of Appeal on sentence was whether it was
convinced
that the court which had imposed the sentence being
adjudicated upon has exercised its discretion to do so unreasonably.
If so,
the Court of Appeal was entitled to interfere and if not, not.
After pointing out at 734G-H that the determination of a specific
period of imprisonment in a particular case cannot occur in
accordance with any exact, objectively valid standard or measure the
learned Judge of Appeal goes on at 734H-I to say that even if the
Court of Appeal is of the view that it would have imposed a much
lighter sentence it would not be free to interfere if it were not
convinced that the court below could not reasonably have imposed
the
sentence which it determined.
[10] Assault with a
dangerous weapon on any person is an appalling and outrageous crime
worse still when perpetrated on defenceless
persons like a woman as
in this matter.
[11] The court a quo
did consider the personal circumstances of the appellant as sketched
out by his attorney and found nothing
therein to warrant the
imposition of a lighter sentence or a lesser sentence than the 10
years. He is 42 years of age, single
and has no children. He
possesses of no property and lives with his aunt. He is
self-employed as a recycler of bottles and averages
a monthly income
of R1 500, 00.
[12] There is
accordingly, in my view, nothing special in his personal
circumstances deserving that the court below should have
shown mercy
in passing sentence.
[13] I am satisfied
that the trial court committed no misdirection in sentencing the
appellant and that it cannot be said that the
trial court did not
exercise its discretion in sentencing the appellant properly and
reasonably.
[14] In the result
the appeal is dismissed.
M A MAKUME
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I concur:
P M MABUSE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
DATE OF
HEARING 17TH MARCH 2014
DATE OF
JUDGMENT 20TH MARCH 2014
APPELLANT’S
COUNSEL MS M BOTHA
INSTRUCTED
BY LEGAL AID SOUTH AFRICA
41 FOX STREET
JOHANNESBURG
RESPONDENT’S
COUNSEL P MARASELA
INSTRUCTED
BY THE OFFICE OF THE DIRECTOR OF
PUBLIC
PROSECUTION