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[2012] ZAFSHC 25
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Khulu v S (A125/2011) [2012] ZAFSHC 25 (8 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. A125/2011
In the matter between:
JOSEPH KHULU
…......................................................................
Appellant
and
THE STATE
…..........................................................................
Respondent
_______________________________________________________
CORAM:
JORDAAN,J
et
CHESIWE, AJ
JUDGMENT:
CHESIWE, AJ
HEARD ON:
27 FEBRUARY 2012
_______________________________________________________
DELIVERED ON:
8 MARCH 2012
_______________________________________________________
[1] The appellant in this
matter was convicted in the Regional Court at Bloemfontein on a
charge of murder, and was sentenced to
the prescribed minimum
sentence of 15 years imprisonment as ordained in
section 51
of the
Criminal Law Amendment Act, No 105 of 1997
.
[2] Leave to appeal was
granted by the trial court and the appeal lies only against the
sentence.
[3] The facts of the
matter are briefly as follows:
The appellant, on the 1
st
July 2007 was at Tsino’s Tavern in the Bloemfontein district.
The appellant wrongfully and unlawfully murdered Itumeleng
Daniel
Komphiri by shooting him with an unlicensed firearm.
[4] During the trial
appellant was represented by Mr Serame from the Legal Aid Board. The
appellant pleaded not guilty and denied
the allegations against him.
[5] Appellant appeals on
the following grounds that:-
- the sentence is
shockingly inappropriate;
- the trial court did not
take the appellant’s personal circumstances into account during
sentencing;
- that the trial court
misdirected itself by over-emphasising the interests of society and
the seriousness of the crime.
[6] Advocate Kruger on
behalf of the appellant in the Heads of Argument and oral arguments,
submitted that the mitigating factors
in this case and the personal
circumstances of the appellant, cumulatively amounted to compelling
circumstances, which justifies
the court to deviated from the
prescribed minimum sentence. She further submitted that alcohol on
the mentioned day played a major
role, although no evidence was led
at the trial court as to the amount/percentage of alcohol that the
appellant took.
[7] Advocate Hoffman, on
behalf of the respondent argued that the trial court did not
misdirect itself and that the appeal court
should not tamper with the
sentence, as it is appropriate for the crime committed.
He argued that the
alcohol did not play a major role as the time the deceased entered
the tavern and the time the appellant spent
in the tavern was very
brief. He submitted that the fifteen years is appropriate and should
remain as is.
[8] Advocate Hoffman
submitted that the aggravating circumstances are of such a nature
that the trial court had no choice, but to
convict and sentence the
appellant to fifteen years.
The appellant had an
unlicensed firearm, which he used to committed the offence. The crime
in that area is prevalent. The appellant
had previous convictions
that are relevant in this matter.
[9] I am of the view that
the court
a quo
came to an informed and reasoned decision on
whether compelling and substantial circumstances were indeed present,
such that he
should deviate from the prescribed sentence. The
appellant could not point at any misdirection in that regard. Neither
could I.
[10] As the trial court
correctly found
section 51
of the Act has limited but not eliminated
the courts discretion in imposing sentences in respect of offences
referred to in
Part II
schedule 2 such as in this case.
The legislature has
deliberately left it to the courts to decide whether circumstances of
any particular case call for a departure
from the prescribed
sentence.
[11] In
S v MALGAS
2001 (1) SACR 469
(SCA) at 471, clear guidelines have been set down
and the Supreme Court of Appeal expressed itself as follows:
“
If the
sentencing court on consideration of the circumstances of a
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and needs of society, so that an injustice would
be done by
imposing that sentence, it is entitled to impose a lesser sentence.”
[12] Murder is a very
serious offence, especially as the deceased was not posing any threat
to the appellant. Appellant shot the
deceased at close range. The
medical evidence found that:
“
Daar was ‘n
stropingsring teenwoordig. Daar was ook roetverkleuring en tatoëring
rondom die ingangswond.”
[13] The courts cannot
ignore the frequency at which such crimes take place. The interests
of the public must be protected. I am
of the view that taking into
consideration the principle, set out in the case of
S v MALGAS
supra
such an appropriate sentence for the offence committed
is reasonable and is not harsh and inappropriate and nor did the
trial court
misdirect itself on any manner during sentence.
[14] It is trite law that
the court of appeal may not interfere with the sentence and replace
it with its own, unless it is justified
to do so. See
S v OBISI
2005 (2) SACR 35
(W) at 35 i – j. One of the instances is
whether the trial court exercised its discretion improperly.
[15] In view of the
aforesaid I am not persuaded that the court
a quo
misdirected
itself or that the sentence is shockingly inappropriate.
[16] In the
circumstances, I make the following order:
The appeal in respect of
sentence is dismissed, and the conviction and sentence confirmed.
_______________
S. CHESIWE, AJ
I concur.
________________
A. F. JORDAAN, J
On behalf of the
applicant: Me. S. Kruger
Instructed by:
Legal Aid
BLOEMFONTEIN
On behalf of the
respondent: Adv. R Hoffman
Instructed by:
The Director Public
Prosecutions
BLOEMFONTEIN
/eb