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2015
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[2015] ZAGPJHC 309
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Siziba v S (A190/2015) [2015] ZAGPJHC 309 (11 December 2015)
THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: A190/2015
DATE OF HEARING: 3
DECEMBER 2015
DATE OF JUDGMENT: 11
DECEMBER 2015
In the matter between:
SIZIBA,
THOKOZANI
............................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM: Avvakoumides AJ and
Hundermark AJ
J U D G M E N T
AVVAKOUMIDES, AJ
[1] The Appellant was charged with two
counts of robbery with aggravating circumstances and one count of
attempted murder. He was
convicted of one charge of robbery with
aggravating circumstances and sentenced to 18 years’
imprisonment which is three
years more than the prescribed minimum
sentence. He had pleaded not guilty to the charges and was
represented at the trial.
[2] The appeal is aimed at a reduction
of the sentence although the Appellant unsuccessfully applied for
leave to appeal against
his conviction as well, notwithstanding the
overwhelming evidence against him, on a proper reading of the record.
The Appellant
submits that the fact that he is a first offender and
that he was awaiting trial for seven months before sentencing, these
factors
ought to be taken as substantial and compelling reasons to
deviate from the prescribed minimum sentence handed out by the trial
court.
[3] It is trite that a court of appeal,
in the absence of misdirection of the trial court, cannot interfere
with a sentence simply
because the court of appeal itself would have
handed down a different or lesser sentence. Furthermore, I am of the
view that the
trial court took all the relevant circumstances into
account, particularly the personal circumstances of the Appellant and
the
brutal manner of the attack on the complainant. I am unable to
find any misdirection on the part of the trial court and find that
the trial court exercised its discretion properly and judicially on
the facts before it.
[4] The sentence imposed is in
accordance with the provisions of section 51 (2) of the Minimum
Sentences Amendment Act 105 of 1977.
The two factors submitted by the
Appellant to be substantial and compelling reasons to deviate from
the prescribed minimum sentence
do not qualify as substantial and
compelling reasons and accordingly I find that there is no reason to
interfere with the sentence.
[5] In the premises the appeal is
dismissed.
G. T. AVVAKOUMIDES
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
I agree:
P. R. HUNDERMARK
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Representation for Appellant:
Counsel: A. H. Lerm
Instructed by: Legal Aid SA
Johannesburg
Representation for the Respondent:
Counsel: T. P. Mpekana
Instructed by: Director of Public
Prosecutions