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2022
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[2022] ZAFSHC 3
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Hlohlolo v S (A73/2021) [2022] ZAFSHC 3 (12 January 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal number:
A73/2021
In
the Appeal between:
LEKGETHO
HLOHLOLO
Appellant
and
THE
STATE
Respondent
CORAM:
OPPERMAN, J
et
DANISO, J
HEARD
ON:
18 OCTOBER 2021
JUDGMENT BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by way of email and by release to SAFLII.
The date and time for hand-down is deemed to be 11h00 on 12 January
2022.
[1]
On 19 June 2020 the regional court, Winburg sentenced the appellant
to 10 years’ imprisonment
on a charge of assault with intent to
cause grievous bodily harm. The appellant had been convicted by the
district court on 05
February 2020
.
T
hereafter the matter was transferred to
the regional
court
for
sentencing.
[2]
The Appellant is aggrieved by the sentence. He appeals to this
court by way
of a petition in terms
of section 309C
of the
Criminal Procedure Act, 51 of
1977
(The CPA).
[3]
The appeal is supported by the State and it is premised on the
grounds that the effective term of 10
years’ imprisonment is
excessive and induces a sense of shock. T
he
court
a
quo
erred
in not imposing a shorter term of imprisonment having regard to the
totality of all the circumstances of the case, more particularly
,
the appellant’s personal circumstances, the
rehabilitation element and remorse.
[4]
It was submitted by both counsel for the appellant and the State
inter alia
that the only reason the matter was referred to the
regional court for sentencing was due to the fact appellant has two
previous
convictions
and that he was on
parole at the time the crime was committed. These factors do not
warrant the imposition of a sentence of 10 years’
imprisonment
considering the fact that the appellant was convicted of assault with
intent to cause grievous bodily harm not attempted
murder.
[5]
The State and the defence are of the view that a sentence of 5 to 7
years’ imprisonment would
be appropriate.
[6]
It is trite that p
unishment
is pre-eminently a matter for discretion of the trial court,
t
he
circumstances under which the appeal court can interfere with a
sentence are limited. The test is whether the sentence is vitiated
by
irregularity or misdirection or is disturbingly inappropriate.
[1]
[7]
It is incorrect that the only reason that the matter was referred to
the regional court for sentencing
was due to the appellant’s
previous convictions. In the record of the proceedings, it is stated
that the referral was due
to the seriousness of the crime.
[2]
Nonetheless, there is nothing untoward about the magistrate’s
decision
following
on a conviction
to
transfer a matter to the regional court for sentencing based on an
accused’s previous convictions. See s 116 (1) (b) of
the CPA.
[8] The
complaint that the trial court underemphasized the appellant’s
personal circumstances and overemphasized
his previous convictions at
the expense of the seriousness of the offence is in my view,
meritless.
[9]
The submissions by counsel overlook the fact that the appellant has
the propensity to commit violent
crimes. At the time of sentencing he
had two previous convictions involving violence and those crimes were
committed while he was
on parole and during a suspended prison
sentence.
[10]
The appellant’s personal circumstances as recorded by the trial
court that at the time of sentencing he was
29 years old, living with
an aunt, went to school till grade 9, was employed and a provider for
his minor child are merely a generic
description of a male of his age
whereas, the trial record reflects that the attack on the complainant
was unprovoked. The appellant
and his companion followed the
unsuspecting complainant and started stabbing him even after he fell
to the ground. The complainant
sustained
multiple
lacerations to the right hand, back and the right side of the body,
the
extent and the severity of the injuries
are revealed in the J88 medical report which was uncontested. There
is nothing exceptional
about the appellant’s personal
circumstances to overshadow the gravity of the crime he has been
convicted of.
[11]
I’m not persuaded that the appellant is sincerely remorseful.
It has been said that a plea of guilty on its
own is not an indicator
of remorse the surrounding actions of an accused are also a factor to
be considered as the plea might be
solely motivated by regret of
being caught.
[3]
The appellant
was not convicted of his plea instead it was only after the testimony
of the complainant that he admitted his guilt
and it was after he was
convicted that he proffered his purported remorse.
[12]
Rehabilitation can still be achieved where imprisonment is imposed,
in my view, having regard to the violent crime
that the appellant has
been convicted of and his history of contemptuous behavior towards
the justice system by breaching the parole
conditions and the
suspended sentence order a lengthy term imprisonment is warranted.
[13]
For the reasons above, I’m not persuaded that there was any
misdirection by the trial court therefore, there
is no basis to
interfere with the sentence imposed.
Order
[14]
The appeal against sentence is dismissed.
NS
DANISO, J
I
concur
M
OPPERMAN, J
On
behalf of Appellant:
Adv.
S Kruger
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of respondent:
Adv.
M Lencoe
Instructed
by:
The
Director of Public Prosecutions
BLOEMFONTEIN
[1]
S
v Sadler
2000
(1) SACR 331
SCA H-J.
[2]
Page
15 of the transcript line 10.
[3]
S v
Matyityi
2011
(1) SACR 40
(SCA),
para
13
.