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2012
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[2012] ZAFSHC 195
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Sithebe v S (A187/2012) [2012] ZAFSHC 195 (18 October 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A187/2012
In
the matter between:-
VUSI
VITALIS SITHEBE
...........................................................
Appellant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
VAN
ZYL, J
et
MOLOI, J
_____________________________________________________
HEARD ON:
15 OCTOBER 2012
_____________________________________________________
DELIVERED ON:
18 OCTOBER 2012
_____________________________________________________
JUDGMENT
_____________________________________________________
K.J. MOLOI, J
[1] The appellant and one
other were convicted of robbery with aggravating circumstances in the
Regional Court held at Bethlehem.
The appellant was granted leave to
appeal against the sentence of 15 (fifteen) years imprisonment
imposed on him on 25 November
2010 by this court on petition. The
appellant is now before us appealing the said sentence.
[2] The appellant
submitted that the trial court erred in finding that there were no
substantial and compelling circumstances present
that would entitle
the court to deviate from the imposition of the prescribed minimum
sentence as provided for in section 51 of
Act 105 of 1997. The
appellant further submitted that the sentence imposed was out of
proportion with the nature and seriousness
of the offence, the
interests of the community and the offender. This, it was submitted,
was because the court overemphasised the
seriousness of the offence
at the expense of the interests of the community and the personal
circumstances of the appellant.
[3]
The personal circumstances of the appellant were that he was only 23
years old when the offence was committed; the appellant
was in
gainful business as a scrap metal dealer and earned approximately R15
000,00 per month; the appellant was unmarried but
had one minor child
to support; the appellant was a first offender with prospects of
being rehabilitated. It was further submitted
that the trial court
did not take into account that the appellant was in custody for a
period of 17 (seventeen) months awaiting
trial and that this period
should be seen as twice as heavy than the sentenced period: as per
S
v STEPHEN AND ANOTHER
1994 (2) SACR 163
(W) at 168F and
S
v ENGELBRECHT
2005 (2) SACR 163
(WLD) at 172 par [32] –
[33]. It was submitted that all these factors above, cumulatively
considered, comprised the substantial
and compelling circumstances as
envisaged in section 105 of Act 51 of 1997.
[4] It is trite that a
court of appeal can only interfere with the sentencing discretion of
a trial court if that discretion was
improperly exercised:
S v
ANDERSON
1964 (3) SA 494
(A) or if the sentence “induces
a sense of shock” -
S v DE JAGER AND ANOTHER
1965
(2) SA 616
(A) - or if the trial court misdirected itself and
exercised its discretion improperly or unreasonably:
S v KIBIDO
1998 (2) SACR 213
(SCA).
[5] Generally when
sentence is considered the factors to be considered and weighed, the
one against the other, are the well-known
triad,
viz
the
nature and gravity of the offence committed, the interest of the
community and the personal circumstances of the offender.
A proper
balancing of these factors has an outcome of imposition of an
appropriate sentence:
S v RABIE
1975 (4) SA 855
(A) at
866A – C. In instances where minimum sentences are prescribed
by the legislature a further dimension is added, namely
that the
court has a duty to enquire into the existence or not of substantial
and compelling circumstances. It is only when and
if the court
reasonably finds that substantial and compelling circumstances were
present that it can deviate from imposition of
the prescribed minimum
sentence without ignoring the triad referred to above.
[6] It is true that the
courts have been warned over and over that the determination of the
existence of the substantial and compelling
circumstances must not be
done for flimsy and unsound considerations that cannot stand
scrutiny:
S v MALGAS
2001 (2) SA 1222
(SCA) at 1232A –
E and
S v MATYITYI
2011 (1) SACR 40
(SCA) par [23]
where the duty of the courts to impose the prescribed minimum
sentences was reiterated.
[7] On proper analysis of
the factors mentioned in paragraph [3] above and further
consideration being had to the evidence that
the complainants
suffered no physical or material damages the goods robbed having been
recovered, I am of the view that the cumulative
effect of all these
factors justifies the finding that substantial and compelling
circumstances were present in this matter. I
am further of the view
that the multiplicity of the occurrence of such robberies in the
country led to the trial court misdirecting
itself on this important
issue and sought to punish the appellant for offences others have
committed.
[8] In
the result the appeal against the sentence imposed must succeed. The
sentence of
15 (fifteen) years
imprisonment is set aside and is substituted as
follows:
8.1 The appellant is
sentenced to 8 (eight) years imprisonment.
8.2 The sentence in 8.1
above is antedated to 25 November 2010.
____________
K.J. MOLOI, J
I concur and it is so
ordered:
____________
C. VAN ZYL, J
On
behalf of appellant: Adv T B van Rensburg
Instructed
by:
Jacques
Groenewald
KROONSTAD
On
behalf of respondent: Adv F Pienaar
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp