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[2011] ZAFSHC 19
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Leralau v S (A61/10) [2011] ZAFSHC 19 (3 February 2011)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : A61/10
In
matter between:-
DAVID L LERALAU
…...........................................................................
Appellant
and
THE STATE
…...................................................................................
Respondent
HEARD ON:
28 February 2011
CORAM:
VAN
DER MERWE et MOLOI J J
__________________________________________________________
JUDGMENT BY:
K.J. MOLOI, J
__________________________________________________________
DELIVERED ON:
3 March 2011
APPEAL JUDGMENT
_____________________________________________________
MOLOI,
J
[1] This is an appeal
against the sentence of 15 years imprisonment imposed by the Regional
Court Bloemfontein on a charge of murder.
The appellant was given
leave to appeal against the sentence by the trial court.
[2] The main grounds of
the appeal are that the trial court overemphasised the seriousness of
the offence and the interest of the
community over the personal
circumstances of the accused and thus failed to balance these factors
properly. This argument is based
on the suggestion that it was common
cause that the appellant was under the influence of intoxicating
liquor when the offence was
committed, the offence was not planned
and the appellant’s admission to causing the deceased’s
death had to be considered
as showing remorse for the deed.
[3] It was furthermore
submitted that the trial court erred in not finding that substantial
and compelling circumstances existed
entitling it to deviate from the
imposition of the minimum sentence of 15 years imprisonment as
required by the provisions of section
51 of Act 105 of 1997.
[4] The evidence showed
that inside a shebeen owned by one Mrs Baartman and in the presence
of witnesses, a confrontation between
the appellant and his own
brother, the deceased, ensued. Those present attempted to calm down
the appellant, who was the aggressor
to no avail. The confrontation
was over the deceased’s money which the appellant demanded from
him. The deceased thereupon
left the shebeen. The appellant followed
him. Later the deceased’s body was found outside with several
stab wounds from which
he succumbed. There was no denial that the
wounds were inflicted by the deceased.
[5] In considering an
appropriate sentence the trial court did not take into account the
previous convictions the appellant had
for various crimes and the
various sentences imposed as they were not considered to have any
bearing on the present offence and
thus treated him as a first
offender. The trial court took into account that the appellant,
though unmarried, had a nine year old
child who was taken care of by
the maternal family. He had no one to maintain. The trial court
acknowledged that the consumption
of alcohol played a part on the
happenings of the night. The appellant did not deny his actions led
to the deceased’s death
and thus facilitated the court’s
decision on the question of guilt. The trial court took all the
factors relevant to the
imposition of appropriate sentence into
consideration and balanced them the one against the other.
[6] The trial court, to
my mind, correctly found that no substantial and compelling
circumstances existed to entitle it to impose
a lesser sentence than
the prescribed minimum sentence of 15 years imprisonment as there was
nothing substantial and compelling
from the appellant’s
personal circumstances individually or cumulatively. There is no
requirement that substantial and compelling
circumstances be
exceptional but should not be frivolous and unjustified. In
S v
Malgas,
2001(1) SACR 469 SCA at 481(h)-(j) (paragraph 31) it was
held that in the absence of such substantial and compelling
circumstances:
“
Courts
are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment) as the sentence that should
ordinarily
and
in the absence of weighty justification be imposed for the listed
crimes in the specified circumstances”
Malgas
,
supra
at 481 (h) – (i).
[7] Sentencing discretion
lies squarely in the hands of trial court:
S v Kibido
1998 (2)
SACR 207
(SCA) at 216 G-H because of its proximity to the proceedings
and the Court of Appeal has limited aspects on which it may interfere
with the exercise of such discretion e.g. if such imposed sentence is
unreasonable or unjust or is vitiated by irregularities:
S v De
Jager
1965 (2) SA 626(A)
at 629 A-B or if it is “
shocking”,
“startling”
or “
disturbingly inappropriate”
even in the absence of material misdirection:
Malgas,
supra
at
478 F-H.
In addition the aggravating
circumstances must also be considered in the assessment process. The
appellant inflicted several stab
wounds on the deceased for no
justifiable cause. The deceased was his own brother. The appellant
was on parole at the time which
was meant to give him an opportunity
to rehabilitate and break away from the trend of committing crimes.
[8] Malgas’case
warned the courts to be consistent in carrying out their duties in
terms of the law and not to deviate therefrom
lightly when it comes
to sentencing. The same appeal to the courts by the Supreme Court of
Appeal to ensure standardisation of
sentence in specified offences
was repeated in
S v Matjitji
2011(1) SACR 40 (SCA) paragraph
23 at paragraph 53 c - f where the courts were reminded that they
were:
“
Obliged
to impose those sentences for certain specified offences unless there
are truly convincing reasons for departing from them.
Courts are not
free to subvert the will of legislature by resort to
vague,
ill-defined
concepts
such as ‘relative youthfulness’ or other equally
vague
and ill-founded
hypotheses
that
appear to fit the particular sentencing officer’s personal
notion of fairness.
Predictable
outcomes, not outcomes based on the whim of an individual judicial
officer, is foundational to the rule of law which
lies at the heart
of our constitutional order”. (My
emphasis).
[9] For the above
reasons, in my view, there is no justification to interfere with the
exercise of the sentencing discretion of
the trial court and would
dismiss the appeal. Accordingly the sentence of 15 years imprisonment
imposed by the trial court is confirmed
and the appeal is DIMISSED.
____________
MOLOI, J
I concur and it is so
ordered.
_________________
VAN DER MERWE, J
On behalf of the
Appellant: Bloemfontein Legal Aid Centre
2
nd
Floor, St
Andrew Centre
St Andrew Street 113
BLOEMFONTEIN
And to: The Director of
Public Prosecutions
3
rd
Floor
Waterfall Centre
BLOEMFONTEIN