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[2015] ZAGPPHC 117
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Ngobeni v S (A570/14) [2015] ZAGPPHC 117 (3 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION. PRETORIA)
CASE NO: A570/14
DATE: 3 MARCH 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN THE MATTER B
HOSINE AMON
NGOBENI
..............................................................................................
APPELLANT
AND
THE
STATE
.....................................................................................................................
RESPONDENT
JUDGMENT
TOLMAY. J:
BACKGROUND
[1] The appellant
was found guilty of arson and murder and sentenced to 5 years and 20
years imprisonment respectively. The sentences
were ordered to run
concurrently.
[2] The appellant
was granted leave to appeal against the sentence by Kollapen J.
[3] The incident
that led to the charges being brought against the appellant was that
it was alleged that the appellant on 31 July
2006 set alight the
house in which the deceased was sleeping. She burnt to death as a
result. From the record it would appear that
the deceased and the
appellant had a relationship which was terminated some time ago. On
the day in question the accused and the
appellant were at the same
drinking place where they both apparently had a lot to drink. There
was also evidence that they at one
stage had an argument. The
deceased returned to her house with her 8 year old granddaughter and
went to sleep. During the night
the child woke up and saw the
appellant setting alight the curtain with a candle. She tried to wake
the deceased up but failed
to do so, she ran out of the house and the
deceased died in the fire.
[4]
It was submitted by counsel for the appellant that the Court a
quo
misdirected
itself in its application of the minimum sentencing regime and gave
undue weight to the appellant’s previous convictions.
It was
also argued that too little weight was given to the role that alcohol
played. It was argued that it would be appropriate
under these
circumstances for this Court to interfere.
THE PRESCRIBED
MINIMUM SENTENCE
[5] Section 51 of
Act 105 of 1997 (as substituted by s 1 of Act 38 of 2007) prescribes
life imprisonment when a person has been
convicted of an offence
referred to in Part I of Schedule 2, and Part II of Schedule 2
prescribes 15 years imprisonment for a first
offender, 20 years for a
second offender and 25 years for a subsequent offender. In the
context of this case a murder conviction
where there was
premeditation would result in life imprisonment unless compelling
circumstances exist which would allow for a deviation
from the
prescribed minimum sentence. In all other instances Part II of
Schedule 2 would apply
[6]
The Court found no premeditation, yet concluded that life
imprisonment was prescribed in terms of the Act. That despite the
Court’s finding that “it is extremely difficult to
conclude that there was premeditation.” There was thus no
definitive finding of premeditation
1
.
Consequently it would seem that the learned judge
a
quo
erred
in accepting that the prescribed minimum sentence was life
imprisonment.
[7] Under the
prevailing circumstances of this case the appropriate applicable
minimum sentence was 15 years imprisonment.
PREVIOUS
CONVICTIONS
[8]
Section 271(4)
of the
Criminal Procedure Act, 1977
provides that the court must once
previous convictions have been proven, take such into account when
assessing sentence. However
despite the fact that an accused may have
a number of previous convictions a long period without any conviction
should be taken
into consideration and ought to be taken into account
when assessing an appropriate sentence
2
.
[9]
The appellant had various previous convictions, one for rape, 3 of
housebreaking and one of escape, the last namely the one
of escape,
was committed during 1997. As a result more than 10 years have passed
since the last transgression. It would seem that
the learned judge
a
quo
did
not pay any regard to the period of time and in my view he erred in
not doing so.
[10]
In his judgment the learned judge
a
quo
inferred
from the previous convictions that the appellant is a violent man and
has no respect for the law. In my view the learned
judge erred by
placing too much emphasis on the appellant’s previous
convictions, especially in the light of the time that
has transpired
since the last transgression.
[11] In my view the
previous convictions should under the circumstances play a minimal
role.
PERSONAL
CIRCUMSTANCES
[12] Although the
personal circumstances were not transcribed counsel for the appellant
argued that it would in any event have played
a negligible role in
sentencing. I agree with this submission.
[13]
The important mitigating factor according to counsel is appellant’s
lack of sobriety when the incident occurred. According
to the
evidence he started drinking at 11 am on the morning preceding the
incident. It can safely be accepted that the appellant’s
alcohol consumption must have played a part in his actions on that
fateful day. The learned judge
a
quo
correctly
took this into consideration and decided on the basis of that to
deviate from what he perceived the minimums sentence
to be.
[14] The learned
judge also placed a lot of emphasis on the fact that the appellant
was drunk on the first day. In my view this
is actually indicative of
the appellant’s problem with alcohol which contributed to this
tragedy.
[15] The appellant
didn’t attend the trial after a postponement, the learned judge
also drew inferences about his character
from this incident, which
was inappropriate considering that he accepted appellant’s
explanation for his absence.
CONCLUSION
[16] It is trite law
that a court of appeal will not easily interfere with the discretion
of the trial court and the test is whether
there was a misdirection
or that the sentence is disturbingly inappropriate
3
.
[17] Due to the fact
that the learned judge incorrectly assumed that the prescribed
minimum sentence was imprisonment for life together
with the fact
that he placed too much emphasis on the previous convictions and the
appellant’s behaviour I am of the view
that there was such a
misdirection to allow for this Court to interfere with the
sentencing.
[18] I accordingly
make the following order:
18.1 The appeal
succeeds;
18.2 the sentence
on count 1 is confirmed;
18.3 the sentence
on count 2 is set aside and the appellant is sentenced to 12 years
imprisonment;
18.4 the
sentences will run concurrently; and
18.5 the sentence
is ante-dated to 9 December 2008
R G TOLMAY
JUDGE OF THE HIGH
COURT
I agree:
C P RABIE
JUDGE OF THE HIGH
COURT
I agree:
M F LEGODI
JUDGE OF THE HIGH
COURT
H A NGOBENI v THE
STATE
A570/2014
DATE OF HEARING:
20 FEBRUARY 2015
DATE OF JDUGMENT:
FEBRUARY 2015
FOR APPELLANT:
PRETORIA JUSTICE CENTRE
ADVOCATE: MR L
ALBERTS
FOR RESPONDENT:
DPP
ADVOCATE: ADV P
VORSTER
1
S v Jimenez 2003(1) SACR 507 (SCA) par 11
2
S v Coetzer 1970(2) SA 228 (N), S v Mavinini
2009 (1) SACR 523
(A)
3
S v Rabie 1978(4) SA 855 (A)