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[2016] ZAKZPHC 18
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Sithole v S (AR435/2015) [2016] ZAKZPHC 18 (19 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: AR435/2015
In
the matter between:
MLAMULI
HUDSON
SITHOLE
APPELLANT
and
THE
STATE
RESPONDENT
Coram
: Gorven et Seegobin JJ
Heard
: 11 February 2016
Delivered
: 19 February 2016
ORDER
On
appeal from the Regional Court, Pietermaritzburg (Mr Ngobese, sitting
as a court of first instance):
The
appeal against sentence is dismissed.
JUDGMENT
SEEGOBIN
J (Gorven J concurring):
[1]
On 26 March 2015 the appellant, a 36 year old male, was convicted on
a plea of guilty in the Regional Court, Pietermaritzburg,
on count 1
of being in unlawful possession of a firearm and on count 2 of
unlawful possession of ammunition in contravention of
the relevant
provisions of the
Firearms Control Act 60 of 2000
. Both counts
were taken as one for purposes of sentence and he was sentenced to
five years imprisonment. This sentence
was ordered to be served
with a sentence which the appellant was already serving in respect of
two rape convictions. The
sentence on the rape convictions was
the subject of a pending appeal. On 30 April 2015 the appeal
was upheld and the sentence
was set aside. The present appeal
against sentence is with leave of the court
a quo
.
[2]
It is trite that sentences may be interfered with on appeal only if
the sentencing court misdirected itself, or if the sentence
is
shockingly inappropriate
[1]
.
It should be borne in mind that the inquiry in an appeal against
sentence is not whether the sentence was right or wrong,
but whether
the court in imposing it exercised its discretion properly and
judicially. Misdirection that could result
in the setting
aside of a sentence on appeal is an error committed by the court in
determining or applying the facts for assessing
an appropriate
sentence. However, as is pointed out in
S
v Pillay
[2]
,
a mere misdirection is not by itself sufficient to entitle a court to
interfere with the sentence on appeal. It must be
of such a
nature, seriousness or degree that it shows that the court did not
exercise its discretion or that it exercised it improperly
or
unreasonably.
[3]
The appellant’s personal circumstances were said to be the
following: (i) he was 36 years old at the time of sentencing;
(ii) he
is single but has five minor children, the first is eight years old,
two are six years old, the fourth is three years old
and the last is
eight months old; (iii) he was the primary care-giver of the two
children whose mother has passed on and the others
reside with their
respective mothers; (iv) he maintained his children as he was
employed earning an amount of R3000.00 per month,
and (v) he was in
custody for 22 months awaiting his trial.
[4]
On behalf of the appellant two issues were raised on appeal; the
first
was that the trial court had failed to take into account
that the appellant was the primary care-giver of two of his children
whose
mother had passed away by the time he was sentenced; the
second
was that the trial court failed to have regard to the period spent by
the appellant in custody while awaiting his trial.
[5]
As far as the first issue is concerned, the trial court did in fact
consider that the appellant was the primary care-giver of
two of his
minor children. However, it considered that these children have
been taken care of by the appellant’s aunt
since the
appellant’s arrest. There was no evidence to suggest that
the children were not being properly cared for.
The appellant
himself did aver that these children were experiencing a hardship as
a result of his incarceration.
[6]
As for the second issue, the trial court did consider that the
appellant was in custody for about 22 months. However,
what was
not clear to the trial court was whether these 22 months also
included the period which the appellant was serving in respect
of two
rape charges for which he was convicted on 30 January 2014.
[7]
Against the factors referred to above the trial court considered the
seriousness of the offences of which the appellant was
convicted and
their prevalence. While the appellant had pleaded guilty to
these charges, he did not disclose the facts and
circumstances giving
rise to his possession, either of the firearm or the ammunition.
The trial court found, correctly in
my view, that the most serious
crimes which are ravaging this country at present such as robberies,
car-hijackings, house robberies,
business robberies and killings, are
committed by people in possession of illegal firearms and
ammunition. In light
of this the relevant legislation provides
for maximum sentences in respect of these types of offences.
Both
sections 3
and
90
of the
Firearms Control Act prescribe
a
maximum period of 15 years imprisonment for these offences.
[8]
Weighing up all these factors against the personal circumstances of
the appellant, including the fact that the appellant was
in custody
for about 22 months, the trial court reasoned, correctly in my view,
that the seriousness of the offences out-weighed
the circumstances
personal to the appellant.
[9]
While sentencing courts will generally try to take into account the
period served by an accused person awaiting trial in order
to
determine whether the effective period of imprisonment to be imposed
would be justified, in my view there is no hard and fast
rule in this
regard. It is but one of the many factors that has to be
considered in each case. Ultimately what is required
is for a
sentencing court to consider whether the sentence to be imposed is
proportionate to the crime committed
[3]
.
[10]
Bearing in mind that the issue of sentence falls eminently within the
discretion of the trial court, I do not consider it necessary
to
interfere with the sentence imposed. In my view, the learned
magistrate carefully considered all the factors that were
placed
before him and thereafter exercised his discretion in a fair and
judicious manner. The appellant can indeed consider
himself
fortunte that a higher sentence was not imposed.
ORDER
[11]
The order I make is the following:
The
appeal against sentence is dismissed.
_______________
_______________
I agree
GORVEN
J
Date
of Hearing
:
11 February 2016
Date
of Judgment
:
19 February 2016
Counsel
for Appellant
:
EX Sindane
Instructed
by
:
Justice Centre, Pietermaritzburg
Counsel
for Respondent :
MS Mtambo
Instructed
by
:
The Director of Public Prosecutions, Pietermaritzburg
[1]
S
v Malgas 2001(1) SACR 469 (CA) (2001(2) SA 1222;
[2001] 3 All SA
220)
para 12.
[2]
1977(4)
SA 531 (A) at 535 E-F; see also Mpofu v Minister for Justice and
Constitutional Development 2013(2) SACR 407.
[3]
See:
S v Radebe and Another 2013(2) SCR 165 SCA; also Director of Public
Prosecutions v Gcwala
2014 ZASCA 14
(unreported) handed down on 31
March 2014.