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[2016] ZAGPPHC 123
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Lukhele v S (CC55/14) [2016] ZAGPPHC 123 (23 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVSION, PRETORIA)
CASE
NO: CC 55/14
DATE:
23/3/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between
JABULANI
JOSEPH LUKHELE
APPLICANT
and
THE
STATE RESPONDENT
JUDGMENT
(LEAVE
TO APPEAL)
VAN
OOSTEN J:
[1]
This is an
application for leave to appeal against a sentence of 15 years’
imprisonment imposed in respect of murder and the
contravention of
the conditions of a protection order.
[2]
In support of the contention that another court may reasonably impose
a lesser sentence, counsel for the applicant once again
made
reference to the personal circumstances of the applicant and the fact
that he had shown remorse in pleading guilty. I have
duly considered
all those factors as well as the seriousness of the crime of murder
which was committed in the course of a tumultuous
relationship
between the applicant and the deceased.
[3]
It is trite that sentencing remains pre-eminently within the
discretion of the sentencing court. In
Mokela
v The State
2012
(1) SACR 431
(SCA) para [9], Bosielo JA put it thus:
‘
This
salutary principle implies that the appeal court does not enjoy carte
blanche to interfere with sentences which have been properly
imposed
by a sentencing court. In my view, this includes the terms and
conditions imposed by a sentencing court on how or when
the sentence
is to be served. The limited circumstances under which an appeal
court can interfere with the sentence imposed by
a sentencing court
have been distilled and set out in many judgments of this Court. See
S
v Pieters
1987
(3) SA 717
(A) at 727F-H;
S
v Malgas
2001
(1) SACR 469
(SCA) para 12;
Director
of Public Prosecutions v Mngoma
2010 (1) SACR 427
(SCA) para 11; and
S
v Le Roux & others
2010
(2) SACR 11
(SCA) at 26b-d.’
[4]
This is a serious case of murder. By shooting and killing the
deceased the applicant acted in a manner that is unacceptable
in any
civilised society that ought to be committed to the protection of the
rights of all persons, including women. Intimate partner
violence
remains alarmingly prevalent as a serious social problem in our
society and deterrent sentences are called for (see
Jimmy
Sebone Seemela v The State
(20508/14)
[2015] ZASCA 41
(26 March 2015)
).
[5]
When viewed against the objective gravity of the offence (
S v
Vilakazi
2012 (6) SA 353
(SCA) para [58])
I
am of the view that the sentence imposed is fair and proportionate to
the offence the appellant has been convicted of.
[6]
In my view no reasonable prospects of a successful appeal exists and
it follows that leave to appeal ought to be refused.
[7]
In the result leave to appeal is refused.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
DATE
OF
HEARING 23
MARCH 2016
DATE
OF JUDGMENT 23
MARCH 2016