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[2016] ZAGPPHC 908
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Vilankulu v S (A685/2015) [2016] ZAGPPHC 908 (17 October 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NO: A685/2015
17/10/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
ERNEST
VILANKULU
Appellant
and
THE
STATE
Respondent
JUDGMENT
Baqwa
J
[1]
The appellant was convicted on 26 August 2011 in the Regional Court
sitting at Secunda on numerous counts of attempted housebreaking
with
intent to commit robbery, three counts of possession of a firearm
without a license, two counts of housebreaking with intent
to rob and
robbery with aggravating circumstances, four counts of attempted
murder, theft of a motor vehicle, kidnapping and two
counts of
possession of ammunition without a license or permit.
[2]
He was sentenced on the same day as follows: on count 3 he was
sentenced to seven years imprisonment; on count 5 he was sentenced
to
three years imprisonment; on count 6 he was sentenced to 15 years
imprisonment in terms of section 51 (2) of Act 105 of 1997;
on count
7 he was sentenced to seven years imprisonment; on count 8 he was
sentenced to three years imprisonment; on count 9 he
was sentenced to
one year imprisonment; on count 10 to seven years imprisonment; on
count 11 to eight years imprisonment; on count
12 he was sentenced to
15 years imprisonment in terms of the Minimum Sentences Act; counts
13, 14 and 15 were taken as one with
15 years imprisonment; on count
16 to three years imprisonment and finally on count 17 to one
year imprisonment.
[3]
The court further ordered that the sentences on counts 3, 5, 7, 8, 9,
10 and 11 were to run concurrently with the sentence in
imposed on
count 6. The sentences on counts 13, 14, 15, 16 and 17 were ordered
to run concurrently with the sentence on count 12.
The appellant was
accordingly to serve an effective thirty years imprisonment. He was
also declared unfit to possess a firearm
in terms of
section 103
(1)
of the
Firearms Control Act 60 of 2000
.
[4]
After the trial in the court a
quo
the appellant had
applied to appeal against sentence but that was dismissed.
[5]
Leave was only granted after the appellant petitioned the Judge
President of this Court on 21 August 2015.
[6]
The personal circumstances of the appellant had been recorded as that
he was married; that he had spent some time in custody
awaiting trial
and that he was a first offender.
[7]
As decided in numerous decisions of our courts, punishment is
pre-eminently a matter for the discretion of the trial court and
an
appeal court should be careful not to erode such discretion. The test
whether or not an appeal court should interfere with sentence
is
whether the sentence is vitiated by irregularity or misdirection or
is shockingly inappropriate.
[8]
The appellant submits that the court a
quo
erred in
over-emphasizing the seriousness of the offences which the appellant
committed and the interests of society whilst the
personal
circumstances were under-emphasized.
[9]
This submission is made in the face of a litany of serious offences
which were committed in quick succession.
[10]
The crimes were committed in a callous, merciless and brutal manner
that served as aggravating factors in the consideration
of sentence.
These factors lead to the trial court concluding that
"
On
the totality
of the evidence
the court
cannot
find
that
there
are
any
compelling
and/or
substantial circumstances which warrant the imposition of
a
lesser sentence."
[11]
The submission that the court a
quo
under-emphasized the
personal circumstances of the appellant simply does not accord with
what is recorded in the judgment which
is being appealed against.
This is what was said on record:
"Your personal circumstances
were taken into account by the court and the only factors that the
court can give recognition
to is the time spent in custody awaiting
trial and the fact that you are still relatively young and that the
State had proved no
previous convictions against you."
[12]
In
S v Vilakazi
2009 (1) SACR 552
(SCA) pal58 the
following was said:
"In
cases
of
serious
crime
the
personal
circumstances of
the
offender,
by
themselves, will
necessarily recede into the
background.
Once
it becomes clear that the
crime is
deserving
of
a
substantial
period
of
imprisonment
the questions
whether the
accused is
married or
single,
whether
he
has two children or three,
whether or not he is in employment, are in themselves largely
immaterial
to what that period
should be,
and those seem to me to be the kind of
'flimsy'
grounds
that
Ma/gas
said
should
be
avoided.
But
they
are nonetheless
relevant
in
another
respect.
A
material
consideration
is
whether the accused can be expected to offend again."
[13]
In casu
it would appear to me that the length of the
sentence is a direct result of a number of factors: The Minimum
Sentences Act, the
multiplicity of the offences, the seriousness of
the crimes committed, the aggravating factors present in the
commission of these
crimes to mention but a few. The determination of
sentence is not a simple mathematical calculation but a process in
which a court
has to weigh all the relevant factors.
[14]
It is evident from the record that the court
a quo
did not
misdirect itself and that it carefully weighed all the relevant
factors. The fact is there were more aggravating circumstances
than
mitigating factors. The personal circumstances are neither
substantial nor compelling.
[15]
Despite the presence of the aggravation mentioned above, the court
a
quo
took into account the time spent in custody by the appellant
awaiting trial and the cumulative effect of the sentences and ordered
the sentences to run concurrently. In other words, the court still
bent over backwards, properly so I may say, not to overlook
the
element of mercy which should always feature in appropriate
circumstances when handing down sentence.
[16]
In the circumstances I come to the conclusion that the appeal against
sentence is totally devoid of merit and I propose that
the following
order be made:
The
appeal against sentence is dismissed.
_________________________
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree and it is so ordered.
__________________________
L.
BAM
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Heard
on:
17 October 2016
Delivered
on:
For
the Appellant:
Advocate
Instructed
by:
For
the
Defendants:
Advocate
Instructed
by:
The State Attorney