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[2017] ZAFSHC 199
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M v S (A136/2017) [2017] ZAFSHC 199 (7 September 2017)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A136/2017
In
the Appeal between:
Z.
M.
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J
et
LEFENYA, A
HEARD
ON:
28 AUGUST 2017
JUDGMENT
BY:
LEFENYA,AJ
DELIVERED
ON:
7
SEPTEMBER 2017
I.
INTRODUCTION.
[1]
The appellant Mr. M. was convicted of murder in the Regional Court
sitting in Petrusburg on 20 July 2016. The court found that
the
appellant on 13 February 2016 inflicted a fatal wound by stabbing the
deceased with a knife in his neck during a fight which
occurred at a
tavern. The learned magistrate in handing down judgment was satisfied
that the appellant, on his own admission, had
exceeded the boundries
of self-defence.
[2]
In coming to a just sentence, the magistrate took into account the
personal circumstances of the appellant, and in deviating
from
imposing the prescribed minimum sentence of 15 years imprisonment
found as follows:
"
The only substantial and compelling circumstance in this case is
the fact that the accused is still, was still young on the time
of
the commission of the offence being 18 years old.
However the
court will also take into consideration all the other factors
that are normally taken into account as mitigating
factors such as
the fact that the accused is a first offender, the fact that the
accused has been honest about what happened
on the
[indistinct], that alcohol and drugs played a role in the commission
of the offence by the accused, that the incident occurred
at the spur
of the moment, not planned. The accused has been in custody since the
13 February 2016 as an awaiting trial prisoner.
Be that as it may the
personal, the mitigating factors are far outweighed by the
seriousness of the offence."
[3]
Having found this, the court sentenced the accused to 13 years
imprisonment. The appellant now appeals against the sentence.
Application for leave to appeal was granted by the Regional
Magistrate.
[4]
The state initially in the papers opposed this appeal but after
arguments by the appellant's counsel the state conceded.
II.
APPELLANT'S ARGUMENT.
[5]
It was argued for the appellant that the sentence is inappropriate
and that the Regional Magistrate overemphasized the seriousness
of
the offence and interest of the society. According to the defense,
had the court, among others considered the fact that deceased
was
stabbed only once and also that he was a first offender as compelling
and substantial factors it could have imposed even a
lesser sentence.
Ill.
REASONS.
[6]
The learned magistrate correctly found that accused's age was a
compelling and substantial factor to be considered and deviated
from
imposing the prescribed minimum sentence. The deviation from 15 years
imprisonment to 13 years was in my opinion very slight.
[7]
This court should be cautious and not alter sentences for flimsy
reasons and is mindful of the fact that the court of appeal
should
not easily interfere with the sentence of the trial court, as
sentencing is in the discretion of the trial court.
See:
S.v. Mnyakeni 2013 JDR 1400 (GNP);
S.
v. Giannoulis
1975 (4) SA
867
(A).
[8]
However a court of appeal can interfere and alter the sentence if the
discretion was not judicially and properly exercised and
the sentence
was inappropriate.
See:
S.
V.
Mnyakeni supra at page 32.
[9]
The question is was age the only factor that the trial court could
have taken into account, and if there were other factors
would it
have considered even a lighter sentence.
[10]
In my view, over and above the factor of youthfulness the court a quo
could have also taken the following into account:
IV.
NATURE
OF
THE
OFFENCE.
[11]
The court cannot overemphasize the seriousness of
the offence of murder, because life is one of the most
precious
rights one can have. Once life is lost it can never be regained.
[12]
The defense argued the court should have taken
into consideration the fact that the deceased was stabbed
only
once.
[13]
Indeed the fact that accused stabbed the
deceased once does not alter the result of death, but
by
stabbing the deceased once, one can measure the degree of aggression
and find it to have been lesser.
[14]
In its judgment the court a quo also found that accused exceeded the
boundaries of self-defense. Therefore these 2 factors
could have been
taken into account when sentencing the appellant.
V.
FIRST
OFFENDER.
[15]
Though the legislator when ordaining minimum sentences considered
the factor of being a first offender and one can argue that it
is
part and parcel of the charge, I however agree with the defence in
its reference to the case of
S. v Woods
1973 (4) SA 95
RA
which states that the sentencing court should never overlook the
effect of imprisonment on first offenders.
[16]
I am therefore of the view that as the trial court correctly found
age to be a compelling and substantial factor it could have
also
taken the fact that appellant is a first offender into account.
VI.
ALCOHOL AND
DRUGS.
[17]
It is not in dispute that the appellant at the time of the commission
of the offence had been drinking and that he is someone
who uses
drugs. If one takes this into consideration and the appellant's
immaturity then it is correct to say his judgment
was clouded.
VII.
MERCY.
[18]
The element of mercy is the cornerstone of every sentencing court.
Sentences should reflect mercy at all times. There are of
course
some cases where the courts have
to be harsher in sentencing
and not show mercy
but given the circumstances of the accused in this case, it is one of
the cases where sentence should be seen
to have been blended with
mercy. Even on a lesser sentence the element of rehabilitation could
still be achieved.
VIII.
FINDING.
[19]
Though the courts would be reluctant to interfere with the sentencing
discretion of the court a quo, this court finds that
in light of the
above mentioned the court a quo erred in stating that only the youth
of the appellant was a substantial and compelling
factor and not
taking all the factors as alluded to above cumalatively as
substantial and compelling to warrant an even greater
deviation from
the prescribed minimum sentence.
[20]
Furthermore this court finds the sentence imposed is inappropriate to
the offender and disproportionate to the offence.
[21]
Therefore from the above mentioned aspects and as counsel for the
state conceded it is clear there is a need for this court
to
intervene.
[22]
The defense in its heads of argument asked this court to consider a
sentence of imprisonment between eight (8) and ten (10)
years.
IX.
ORDER.
[23]
Accordingly the following orders are made;
1.
The appeal succeeds.
2.
The sentence of thirteen (13) years imprisonment is set aside and
replaced with the following:
"Nine
(9) years imprisonment."
3.
The sentence must be deemed to have been imposed on 20 July 2016.
___________________
BR
LEFENYA, AJ
I
concur.
___________________
C
REINDERS, J
On
behalf of the appellant:
Mr. D. Reyneke
Instructed
by:
Justice Centre
Bloemfontein
On
behalf of the Respondent:
Adv Sekoena
Instructed
by:
Director of Public Prosecutions
Bloemfontein