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[2010] ZAWCHC 157
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Silwane v S (A224/2010) [2010] ZAWCHC 157 (11 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A224/2010
DATE:
11
JUNE 2010
In
the matter between:
SIWE
SILWANE
Appellant
and
THE
STATE Respondent
JUDGMENT
FOURIE,
J
:
Appellant
was charged in the Regional Court at Wynberg with one count of
attempted murder and one count of possessing a firearm
without
holding a licence, permit or authorisation in terms of Act 60 of
2000 to possess same. He pleaded not guilty to both
charges, but
after hearing evidence, the magistrate found him guilty as charged.
He was sentenced to ten years imprisonment on
count 1 and 14 years
imprisonment on count 2. It was ordered that five years of the
sentence on count 1 are to run concurrently
with the sentence
imposed on count 2. He accordingly has to serve an effective
sentence of 19 years imprisonment. He now appeals,
with the leave of
the court a
quo.
against
the sentence only.
The
charges against appellant came about as follows: The complainant was
on his way to his business at Philippi and hailed a taxi
to take him
there. The appellant approached him after he had stopped the taxi
and fired some shots in the complainant's direction.
Thereupon the
complainant produced his own firearm and returned fire. This caused
appellant to run away, but unfortunately for
him there were members
of the police on patrol in the vicinity and they apprehended him.
Nobody was injured as a consequence
of the shooting, and the police
confiscated appellant's firearm. At the trial, the magistrate
correctly rejected the appellant's
exculpatory version.
It
is trite that a court of appeal should only interfere with the
exercise of the sentencing jurisdiction of a trial court in
circumstances where there has been a misdirection on the part of the
presiding officer, or where the sentence imposed by the
trial court
differs substantially from the sentence which the court of appeal
would have imposed, had it been the court of first
instance.
In
view of the fact that the firearm used by appellant is a
semiautomatic firearm, the provisions of Act 105 of 1997 come
into play. It provides for a minimum sentence of
15
years imprisonment for the unlawful possession of a firearm of this
nature, but the court may depart from the prescribed sentence
if
substantial and compelling circumstances are present, justifying a
lesser sentence. The magistrate found that, as appellant
was in
custody for a period of approximately
11
months
awaiting trial, there are substantial and compelling circumstances
and accordingly sentenced him to
14
years imprisonment on count 2.
Ms
Swart
,
appearing on behalf of respondent, submitted, fairly and correctly
in my view, that the sentence of
14
years imprisonment on count 2 appears, in the circumstances of this
case, to be shockingly inappropriate. In particular, it should
be
borne in mind that, fortunately, no injuries were sustained by
anybody as a consequence of appellant's use of the firearm
and, as I
have already said, the firearm was confiscated by the police. Ms
Swart
suggested that a sentence of five years imprisonment on count 2
would suffice.
Having
regard to the effective sentence of
19
years imprisonment imposed by the magistrate, I agree with the
submission on behalf of appellant that the court a
quo
did
not attach sufficient weight to appellant's personal circumstances,
in particular the following:
Appellant
was only
19
years old at the time of the commission of the offence. It is
generally accepted that youthfulness and the emotional immaturity
that goes with it, often result in irrational behaviour.
The
appellant is a first offender. Courts generally strive to keep
youthful first offenders out of jail, or to incarcerate them
for
the shortest possible period of time.
The
fact that appellant is a relatively young first offender, would
generally make him a potential candidate for rehabilitation.
By
imposing an effective sentence of
19
years imprisonment, the prospects of appellant's rehabilitation are
drastically diminished.
Appellant
spent a period of
11
months in custody awaiting trial.
The
offences committed are no doubt of a very serious nature, but it has
to be borne in mind, as I already mentioned, that fortunately
no
injuries were caused and the firearm was recovered I do, however,
agree with the magistrate that a substantial period
of
imprisonment is called for. Our society is plagued by violent crimes
committed with the aid of unlicensed firearms. Discharging
a firearm
in an urban area in these circumstances, can have tragic
consequences. The community is entitled to expect that the
courts
will impose sentences which would deter others from committing
similar crimes.
I
conclude, however, that in the circumstances of this case, the
effective sentence of
19
years imprisonment induces of a sense of shock. Had I been the court
of first instance, I would not have been inclined to impose
an
effective period of imprisonment in excess of ten years. In the
result, I propose that the appeal be upheld; that the sentence
imposed by the regional magistrate be set aside and the following be
substituted therefor.
1. On
count 1 the accused is sentenced to
TEN
(10)
YEARS IMPRISONMENT
.
2. On
count 2 the accused is sentenced to
FIVE
(5) IMPRISONMENT
.
3. In
terms of
section 280
of the
Criminal Procedure Act 51 of 1977
, it is
ordered that the sentence imposed on count 2 is to run concurrently
with the sentence imposed on
count
1.
4.
In terms of
section 282
of Act
51
of 1977, the sentences
are
antedated to 27 July 2007.
MCCLARTY.
J
:
I agree.
MCCLARTY,
J
FOURIE.
J
:
It is ordered accordingly.