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[2015] ZAGPPHC 140
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Lokhotshwayo v S (A549/14) [2015] ZAGPPHC 140 (11 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: A549/14
DATE: 11 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
ABSALOM
BOSS
LOKHOTSHWAYO
.......................................................................................
Appellant
And
THE
STATE
.................................................................................................................................
Respondent
JUDGMENT
[1] This is an
appeal against sentence. On 6
th
February 1996 appellant
was convicted and sentenced in the then Transvaal Division sitting in
Pretoria as follows:
Count
1, murder, 45 years imprisonment.
Count
2, robbery, 5 years imprisonment.
Count
3, rape, 15 years.
Count
4, pointing of a firearm, 12 months imprisonment. Count 5, unlawful
possession of a firearm, 12 months imprisonment
Count
6, unlawful possession of ammunition, 6 months imprisonment.
[2] The sentences in
respect of counts 4, 5 and 6 were ordered to run concurrently. The
appellant was thus sentenced to an effective
period of 66 years of
imprisonment. The provisions of the Criminal law Amendment Act were
not applicable at the time of the commission
of the offence.
[3]
The appellant applied to the court
a
quo
for
leave to appeal to this court against his conviction and sentence.
The application for leave to appeal against conviction was
refused
and the court gave leave to appeal against sentence only.
[4]
Appellant contends that this court must set aside the sentence
imposed because of misdirection by the court
a
quo
and
accordingly that this court is at liberty to reconsider sentence and
impose a shorter term of imprisonment. Appellant's counsel
relies on
the following alleged misdirection by the court
a
quo:
(1) It failed to
exercise its discretion judicially, properly, and in a balanced
manner in sentencing the appellants by not allowing
enough evidence
in mitigation of sentence to be placed on record.
(2) It imposed a
sentence totally out of proportion to the gravity of the offence
committed and the sentence is shockingly harsh
and induces a sense of
shock, therefore startlingly disproportionate.
(3)
In sentencing the appellant to an effective term of 66 years
imprisonment, the Court
a
quo
over-emphasized
the seriousness of the offences and the interest of the society
whilst the personal circumstances of the appellant
were not
considered and or under-emphasized.
(4) The trial court
misdirected itself by failing to take into account that appellant was
in custody awaiting trial for a period
of 3 years and 8 months.
[5]
In its judgment the court
a
quo
accepted
the state's evidence that appellant, who was accompanied by Absalom
Mahlangu, a section 204 witness, went to the deceased
house. The
appellant assaulted the deceased, shot and wounded her and dragged
her to the vehicle they were traveling in. The deceased
was carrying
a baby on her back, the witness tried to intervene but appellant
pointed him with a firearm and ordered him into the
vehicle.
Appellant drove the vehicle to some nearby bushes where he dragged
the deceased out of the vehicle and raped her. Thereafter,
appellant
ordered Absalom Mahlangu to help him carry the deceased into the
vehicle, as she could not walk on her own. They both
put the deceased
in the vehicle and appellant ordered Absalom Mahlangu to drive the
vehicle. The deceased died in the vehicle and
her corpse was dumped
on the side of the road. The deceased died of a gunshot wound in the
abdomen.
[6] It is settled
law that the infliction of punishment is pre-eminently a matter for
the discretion of the trial court. In determining
an appropriate
sentence regard must be had to the well-known triad factors, namely
the seriousness of the crime, the offender's
personal circumstances,
as well as the interests of society. Equally important is the aspect
of mercy, which is a concomitant of
justice. Each sentence must be
individualized. Each case must be dealt with on its own peculiar
facts. A Court of appeal does not
have an unfettered discretion to
interfere with the sentence imposed by a trial court. It is only
where it is clear that the discretion
of the trial court was not
exercised judicially or reasonably that a court of appeal will be
entitled to interfere. Where there
is no clear misdirection the
remaining question is whether there exists such a striking disparity
between the sentences imposed
by the trial court and the sentences
the appeal court would have imposed, as to warrant interference.
[7]
It is necessary to deal briefly with the argument that the court
a
quo
misdirected
itself by failing to take into account that appellant was in custody
awaiting trial for a period of 3 years and 8 months.
Lewis JA in
S
v Radebe and another
1
differed
with
S
v Brophy and Another
2
where the court held that the rule of thumb in determining an
appropriate sentence should be to take into account the period in
detention awaiting the completion of the trial and double it. That
double period should be deducted from the period of imprisonment
proposed when sentencing. Lewis JA held that there should be no rule
of thumb in respect of the calculation of the weight to be
given to
the period spent by an accused awaiting trial. The court stated that
the period in detention pre-sentencing is but one
of the factors that
should be taken into account in determining whether the effective
period of imprisonment to be imposed is justified:
whether it is
proportionate to the crime committed.
[8]
It is trite that whatever the gravity of offence is and the interest
of society, the most important factors in determining sentence
are
the person, the character and circumstances of the crime. Holmes JA
in the often-quoted statement from the case of
S
v Sparks
1972(3)
SA 396 (A) at page 410H held that:
"Punishment
should fit the criminal as well as the crime, be fair to the state
and to the accused and be blended with a measure
of mercy
."
[9]
It follows that in determining the appropriate sentence the needs of
the convict and the interest of society should be balanced
with care
and understanding. In order to achieve these ideals the sentencing
court should have sufficient and meaningful pre-sentencing
information in order to come up with suitable punishment. See
State
v Maxaku
3
.
In
casu,
the
only information in mitigation of sentence considered by the court
was that appellant was 42 years old when he was sentenced
and was
married with two minor children to maintain. The court did not know
who appellant was, why he committed the offences, his
level of
education, his upbringing and whether he was a victim of substance
abuse. This scant information in my view leaves the
assessment of
penalty to a hazardous guess based on no or inadequate information.
[10]
In the circumstances, the court
a
quo
should
have called for such evidence as was necessary to enable it to
exercise a proper judicial sentencing discretion. This enquiry
was
not carried out. This is a misdirection on the part of the trial
court in that the basic elements of sentencing were not followed
to
the prejudice of the accused.
[11] In my view, the
cumulative effect of the sentences imposed, is excessive and induces
a sense of shock which warrants our interference.
[12]
In the result, I would confirm the conviction and set aside the
sentence imposed by the court
a
quo
and
substitute it with the following:
1. a. Count 1,
Murder, 30 years of imprisonment.
b. Count 2, Robbery,
5 years imprisonment.
c. Count 3, Rape, 15
years imprisonment.
d. Count 4, pointing
of a firearm, 6 months imprisonment.
e. Count 5, unlawful
possession of a firearm, 12 months imprisonment.
f. Count 6, unlawful
possession of ammunition, 6 months imprisonment.
2. All sentences are
ordered to run concurrently.
3. In terms of
section 282 of the Criminal Procedure Act the sentence is antedated
to 6 February 1996.
K.E. MATOJANE
JUDGE OF THE HIGH
COURT
I agree, and it is
so ordered
W R C PRINSLOO
JUDGE OF THE HIGH
COURT
I agree
N M.MAVUNDLA
JUDGE OF THE HIGH
COURT
1
2013(2)SACR
165 (SCA)
2
2007(2)SACR
56 (W)
3
State
v
Maxaku,
Williams
1973(4) SA 248