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[2018] ZAFSHC 15
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Mere v S (A238/2017) [2018] ZAFSHC 15 (22 February 2018)
IN THE HIGH COURT SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No
:
A238/2017
In
the matter between:
LEFU
MERE
Appellant
and
THE
STATE
Respondent
COR
A
M:
VANZYL,
Jet
LOUBSER, J
JUDGMENT
BY:
LOUBSER, J
HEARD
ON:
12
FEBRUARY 2018
DELIVERED
ON:
22 FEBRUARY 2018
[I]
INTRODUCTION
:
[1]
The
appellant was convicted and sentenced in the Regional Court of
Viljoenskroon on two counts of Robbery with Aggravating Circumstances
and sentenced to 15 years imprisonment on each count, the sentences
to be served concurrently. He was also declared unfit to possess
a
fire-arm in terms of the provisions of the
Firearms
Control Act no 60 of 2000
.
The
appeal is against sentence only.
[II]
THE
FACTS:
[2]
On the evidence before him, the Regional Magistrate found that the
Appellant has entered
a certain shop around the evening in the
company of three others, of whom two were his co-accused in the Court
a
quo.
One of the co-accused was armed with a firearm, while
the other co-accused and the Appellant himself carried knives. When
the four
of them entered the shop, another four men in their company
waited outside the shop.
[3]
Inside
the shop, the Appellant and his co-accused encountered the shopkeeper
and a friend of his where they were in conversation.
The Appellant
then stabbed the friend twice on the forehead with the knife and they
took his cell phone. They also threatened the
shopkeeper with the
firearm and a knife and they robbed him of his cell phone as well.
Thereafter they took some R2000 from the
till on the counter and
left. None of the stolen goods were ever retrieved
.
[Ill]
SUBMISSIONS
ADVANCED BY COUNSEL
:
[4]
On
behalf of the Appellant, it was submitted that the Court a
quo
under-emphasized the personal
circumstances of the Appellant. and therefore failed to exercise its
discretion properly and judicially
in arriving at the sentences
imposed. It was further submitted that the Court a
quo
erred in finding that there were no
substantial and compelling circumstances present in the
·,
Appellant's case, and the minimum
sentences of 15 years imprisonment on each count were therefore
uncalled for in the premises.
[5]
The sentences
imposed
were
supported by Counsel for the Respondent. He submitted that a Court
should not deviate from the prescribed minimum sentences
for reasons
that are not substantial. Considerations of retribution, prevention
and public interest would still call for a long
term of imprisonment
in the
present case even had substantial
and compelling circumstances been found.
[IV]
DETERMINATION:
[6
.
] In
terms of
Section
51
of Act 105 of 1997
the
minimum sentence for Robbery with Aggravating Circumstances in the
case of a first offender, is 15 years imprisonment. Here
the
Appellant is a first offender, and he was 20 years of age when he was
sentenced. In terms of the Act, a lesser sentence than
the minimum
may be
imposed
if the Court is satisfied that substantial and compelling
circumstances exist which justify the lesser sentence.
[7] In
S v Mahlangu and
Others 2012(2) SACR 373 (GSJ) at 377h
it
was stated that substantial and compelling circumstances
.
mean
s "truly convincing reasons". There must not be marginal
differences in personal circumstances or degrees of involvement.
At
the end of the day, the ultimate cumulative impact of the
circumstances must be such as to justify a departure. In
S
v Abrahams 2002(1) SACR 1168 (SCA)
it
was held that where factors of substance do not compel the conclusion
that the application of a prescribed sentence would be
unjust, that
sentence has to be imposed. In addition heretot it has already become
trite that sentencing is pre-eminently the prerogative
of the trial
court, and that a court of appeal will only interfere with any
sentence in limited circumstances.
(
See
:
S v KHUMALO 1973(3) SA 697 (A) at 698 8-C, AND S v PIETERS 1987(3) SA
717 (A) at 728 8-C)
[8]
In
.
m
y view, the record of proceedings in the instant case clearly
shows that the presiding
Magistrate had considered all the
·
relevant
factors in determining whether substantial and compelling
circumstances exist. The fact that the Appellant
was only 20 years of
age and that he was a first offender, was taken into account. On the
other hand, the Magistrate was also aware
that the Appellant had
stabbed one of the victims in circumstances where the victims were
not resisting, and that the robbery was
clearly a pre-meditated
event. The Magistrate had found correctly, in my view, that there
were no substantial and compelling circumstances
justifying a
deviation from the prescribed minimum sentence.
[9]
The following order is therefore made:
1. The appeal against sentence is
dismissed.
P J LOUBSER, J
I
concur:
C
VAN ZYL, J