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[2010] ZAFSHC 81
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Lesole v S [2010] ZAFSHC 81 (8 July 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Cas
e
No. : A55/2010
In
the
appeal between:-
JANTJIE
LESOLE
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
MOCUMIE,
J.
et
MTHEMBU,
AJ
_____________________________________________________
HEARD
ON:
3
MAY 2010
_____________________________________________________
JUDGMENT
BY:
MTHEMBU,
AJ
_____________________________________________________
DELIVERED
ON:
8
JULY 2010
_____________________________________________________
JUDGMENT
_____________________________________________________
[1] The
appellant (accused 2) and accused 1 were found guilty of robbery with
aggravating circumstances in
the
Kroonstad Regional Court on 29 September 2009. The appellant was
sentenced to fifteen years imprisonment in terms of the Criminal
Amendment Act, 105 of 1997. The court
a
quo
found that there were no substantial and compelling circumstances
present.
[2] The
appeal is against the imposed sentence only with leave of the
court
a quo
.
[3] The
circumstances surrounding the commission of the offence are that the
appellant and accused 1, using a knife, robbed two
school children of
two cellphones and R60, 00 cash in broad daylight. The value of the
cellphones is R1 899, 00.
[4] The
appellant’s personal and mitigating circumstances are the
following:
4.1 He was 24 years of
age when he committed this offence;
4.2 He
was single and had a one year old dependant;
4.3 He was a hawker
earning R900,00 per month;
4.4 He passed Grade 12
at school;
4.5 He was a first
offender;
4.6 The knife was not
used and the victim did not sustain any bodily injuries.
[5] The aggravating
circumstances are the following:
5.1
Robberies
of cellphones where a knife is used are prevalent in the jurisdiction
of the court
a
quo
;
5.2 The
offence was committed at twelve o’ clock during the day;
5.3 The
victim/s were school children who may have been younger than the
appellant, these were easy victim/s
[6] Mr.
Van Rensburg, for the appellant, argued that a sentence of fifteen
years imprisonment is unjust as it is disproportionate
to the
offence, the appellant and the interest of the community. The
presiding officer over-emphasised the seriousness of the
offence and
the interest of the community over the personal circumstances of the
appellant. He submitted that this case is distinguishable
from the
robbery that the legislature had in mind for purposes of minimum
sentence legislation. Usually where the victim sustained
no injuries
and the appellant was young; the sentence will be less than fifteen
years.
[7]
Mr
Van Rensburg referred to
S
v ISAACS AND ANOTHER
2007 (1) SACR 43
(C) where a knife was used to threaten the victim
and the accused was a first offender, the court found that
substantial and compelling
circumstances were present and departed
from the prescribed minimum sentence. See also
S
v NDLOVU
2007 (1) SACR 535
(SCA).
[8] The
approach to be adopted in an appeal against sentence is reflected in
the following passage in the judgment of Nicholas AJA
in
S
v SHAPIRO
1994 (1) SACR 112
(A) at 119 j – 120 C:
“
It may well
be that this Court would have imposed on the accused a heavier
sentence than that imposed by the trial Judge. But even
if that be
assumed to be the fact, that would not in itself justify interference
with the sentence. The principle is clear: it
is encapsulated in the
statement by Holmes JA in S v Rabie
1975 (4) SA 855
(A) at 857D-F:
'1. In every appeal against sentence,
whether imposed by a magistrate or a Judge, the Court hearing the
appeal -
(a) should be guided by the principle
that punishment is "pre-eminently a matter for the discretion of
the trial Court";
and
(b) should be careful not to erode
such discretion: hence the further principle that the sentence should
only be altered if the
discretion has not been "judicially and
properly exercised".
2. The test under
(b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate.' “
See
S
v SADLER
2000 (1) SACR 331
(SCA) at 334 d – g, where it was also been
held that:
“
The
overemphasis of the effect of the appellant’s crimes, and the
underestimation of the person of the appellant, constitutes
... a
misdirection and in result the sentence should be set aside.”
See
also
S
v ZINN
1969 (2) SA 537
(A) at 540 f – g. This must be equally true
when there is an over-emphasis of the personal circumstances of the
accused
and an underestimation of the gravity of the offence. See
S
v SALZWEDEL AND OTHERS
1999 (2) SACR 586
(SCA) at 591.
[9] In
R
v DHLUMAYO AND ANOTHER
1948 (2) 677 (A) at 706, the court
inter
alia
held that:
“
... in order to succeed, the
appellant has not to satisfy an appellate court that there has been
‘some miscarriage of justice
or violation of some principle of
law or procedure.”
In
respect of an appeal against the sentence the appellant must show
that the sentence is disturbingly inappropriate or wholly
inadequate
that the inference should be drawn that the trial
court
had not properly and judiciously exercised its discretion.
[10] There
is no doubt that the offence committed by the appellant is one of the
most prevalent in the country. However, when a
court imposes a
sentence it must arrive at a balanced sentence taking into account
the seriousness of the offence, its prevalence,
the personal
circumstances of the appellant and the interests of the community.
[11] In
S
v SADLER
supra
the court had this to say at 332 b – d:
“
The court
considered firstly whether it was entitled to intervene in the
sentence. The Court remarked that the traditional formulation
of the
approach to appeals against sentence on the ground of excessive
severity or excessive leniency where there has been a misdirection
on
the part of the court which imposed the sentence was easy enough to
state. It was less easy to apply. Account had to be taken
of the
admonition that the imposition of sentence was the prerogative of the
trial court and that the exercise of its discretion
in that regard
was not to be interfered with merely because an appellate court would
have imposed a heavier or lighter sentence.
At the same time it had
to be recognised that the admission could not be taken too literally
and required substantial qualification.
If it were taken too
literally, it would deprive an appeal against sentence of much of the
social utility it was intended to have.
So it is said that where
there exists a 'striking' or 'startling' or 'disturbing' disparity
between the trial court's sentence
and that which the appellate Court
would have imposed, interference was justified. In such situations
the trial court's discretion
was regarded as having been unreasonably
exercised.”
[12] The trial court
should have found that the fact that the appellant was 24 years of
age when he committed the offence, he was
a first offender, the knife
was not used and the victim did not sustain bodily injuries
constitute substantial and compelling circumstances.
[1
3] Considering
the above cases, this court is of the view that it should interfere
with the sentence imposed and arrive at a balanced
sentence taking
into account the seriousness of the offence, its prevalence, the
personal circumstances of the appellant and the
interest of the
community. This court accordingly finds that substantial and
compelling circumstances in terms of
section 51
of the
Criminal Law
Amendment Act, 105 of 1997
, are present in this case.
[14] In
the result I make the following order:
1. The
appeal against
the sentence imposed on 29 September 2009 succeeds.
2. The
sentence imposed on 29 September 2009 is substituted with a sentence
of 10 (ten) years imprisonment.
3. This sentence is
deemed to have been imposed on 29 September 2009.
___________
_____
J.B. MTHEMBU, AJ
I concur.
_______________
B.C. MOCUMIE, J
On
behalf
of appellant: Adv. T.B. van Rensburg
Instructed
by:
Legal
Aid Board
KROONSTAD
On
behalf of
respondent: Adv.
M.A. Lencoe
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN