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[2013] ZAFSHC 183
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Khake v S (A167/2013) [2013] ZAFSHC 183 (24 October 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A167/2013
In
the appeal between:-
SIDEMA KHAKE
.......................................................................
Appellant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
MOCUMIE, J
et
REINDERS, AJ
_____________________________________________________
HEARD ON:
21 OCTOBER 2013
_____________________________________________________
JUDGMENT:
REINDERS, AJ
DELIVERED ON:
24 OCTOBER 2013
_____________________________________________________
[1] The appellant was
convicted on a charge of housebreaking with the intent to rob and
robbery with aggravating circumstances (read
with
section 51(2)
of
the
Criminal Law Amendment Act, 105 of 1997
) by the Regional Court,
Bloemfontein, on 3 June 2013. Subsequently appellant was sentenced to
15 years imprisonment on 4 June 2013.
Appellant was granted leave to
appeal against his sentence by the Court
a quo
.
[2] The grounds on which
appellant rely for the setting aside of his sentence are:
1. That the court
a
quo
erred in not properly taking into account that the appellant
was a first offender;
2. By finding that no
substantial and compelling circumstances were present that would
allow the court to deviate from the prescribed
minimum;
3. In finding that the
factors in mitigation did not render the prescribed minimum sentence
disproportionate to the offence.
[3] In his heads of
argument Mr Reyneke, on behalf of the appellant, stated the
mitigating factors of the appellant as follows:
The appellant was 27
years of age at the time he committed the offence. He had two
children to support. He was a part time employee
prior to his arrest.
He attended school up to grade 7.
[4] He furthermore argued
that the Court
a quo
did not take into account the six months
that appellant spent in prison awaiting trial. He referred to case
law that a sentencing
court has to take into account the term of
imprisonment whilst awaiting trial.
[5] It is clear from the
record that the prosecutor in his address to the court before
sentencing submitted that the appellant was
incarcerated for six
months awaiting trial. Mr Reyneke conceded that, even if the Court
a
quo
did not specifically mention the fact that appellant was
incarcerated for six months pending trial, this was not a substantial
period of time and would not be a factor that could sway the court’s
decision.
[6] Mr Steyn in his heads
of argument submitted that the appeal is without any merit and that
the Court
a quo
considered and assessed sentence in a
well-balanced manner. He pointed out all the aggravating
circumstances taken into account
by the Court
a quo
,
viz
the extremely serious nature of the crime; the degree of planning
involved in executing the commission of the crime; the coordination
of the attack by appellant and his henchman; the fact that the crime
was committed out of greed; the losses suffered by law abiding
citizens due to these crimes and the fact that appellant’s
criminal track record has escalated from assault to a more serious
crime.
[7] Mr Steyn also
submitted that the Court
a quo
correctly found that no
substantial and compelling circumstances could be found to allow a
deviation from the prescribed minimum
sentence. In arriving at a
conclusion whether any substantial and compelling circumstances exist
that would warrant a lesser sentence
as the prescribed minimum, the
Court
a quo
was guided by the principles laid down in
S
v Malgas
2001 (2) SA 1222
(SCA) at 1235F – 1236C. The
Supreme Court of Appeal cautioned in
S v Matyityi
2011
(1) SACR 40
(SCA) that courts have a duty to implement minimum
prescribed sentences and that there was all too frequently a
willingness on
the part of courts to deviate from these sentences for
the flimsiest of reasons.
[8] When it comes to
interfering with the sentence imposed by the Court
a quo
, it
is trite law that the jurisdiction of the Court of Appeal is not
discretionary and in fact very limited, as it was stated in
S v
Pieters
1987 (3) SA 717
(A) on 727F. The discretion in
imposing a sentence lies with the trial court. In the
locus
classicus
S v Holder
1979 (2) SA 70
(A), it was
held that an appropriate sentence will always be a sentence which is
based on a balanced consideration of the personal
circumstances of
the accused; the seriousness of the crime and the interests of
society. This was done by the Court
a quo
.
[9] To my mind the Court
a quo
did not err in any way and quite correctly found that no
compelling and substantial circumstances exist to deviate from the
minimum
prescribed sentence of 15 years.
[10] In the result, I
would dismiss the appeal.
_______________
C. REINDERS, AJ
I
concur.
_______________
B.C. MOCUMIE, J
On behalf of appellant:
Mr J D Reyneke
Instructed by:
Bloemfontein Justice
Centre
Legal Aid SA
BLOEMFONTEIN
On behalf of respondent:
Adv C F Steyn
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/spieterse