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[2010] ZAFSHC 110
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Kusa v S [2010] ZAFSHC 110 (16 August 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No. : A200/08
In
the matter between:
ELIAS
KUSA
…........................................................................
Appellant
versus
THE
STATE
…...........................................................................
Respondent
CORAM:
MOCUMIE
et
MOLEMELA,
JJ
HEARD
ON:
2
AUGUST 2010
DELIVERED
ON:
16
AUGUST 2010
JUDGMENT
: APPEAL
[1]
The appellant appeared in the Regional Court, Bloemfontein on a
charge of robbery with aggravating circumstances. He was arrested
as
charged on 4 April 2008 in terms of the provisions of section
51(2)(ii) read with Part II of Schedule 2 of the Criminal Amendment
Act, 105 of 1997 ("the Act"). The appellant, as a second
offender, was subject to the imposition of the minimum sentence
of
not less than fifteen (15) years imprisonment, unless the court found
compelling and substantial circumstances to exist as contemplated
in
subsections (3) and (6) of the Criminal Amendment Act. He was
sentenced to fifteen (15) years of imprisonment on 4 April 2008.
It
is against this sentence that the appellant is now appealing with
leave of the court a
quo.
[2]
The
proven facts of this case can be summarised as follows. The accused
and another person, who was never arrested, accosted the
complainant
in the street shortly after 13h00 and robbed her of her cellphone
valued at R3 000,00. The appellant was chased by
people shortly after
the robbery and was found in possession of the complainant's
cellphone.
[3]
The essence of Mr. Van Rensburg, on behalf of the appellant, is
simply that the appellant's personal circumstances do not justify
the
imposition of the sentence imposed, which justifies interference by
this Court.
[4]
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 119j - 120c:
"'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.'"
[5]
The purpose of sentence is generally known. It has been repeatedly
stated that a sentencing court must consider the three basic
principles of sentencing, the triad, when considering an appropriate
sentence,
viz:
The
seriousness of the offence, the offender and the interests of the
society as propounded in
S
v
Zinn
1969
(2) SA 537
(AD).
Friedman
J
stated
aptly in
S
v Banda and Others
1991
(2) SA 352
(BG) at 355 A - B:
"The
elements of the triad contain equilibrium and a tension. A court
should, when determining sentence, strive to accomplish
and arrive at
a judicious counterbalance between these elements in order to ensure
that one element is not unduly accentuated at
the expense of and to
the exclusion of the others. This is not merely a formula, nor a
judicial incantation; the mere stating whereof
satisfies the
requirements. What is necessary is that the Court shall consider, and
try to balance evenly, the nature and circumstances
of the offence,
the characteristics of the offender and his circumstances and the
impact of the crime on the community, its welfare
and concern. This
conception as expounded by the Courts is sound and is incompatible
with anything less."
[6]
The appellant was 18 years of age at the time of the commission of
this offence. He had attained grade 10 at school, but was
no longer
attending school. He was unemployed staying with his mother, who is a
domestic worker, earning R600, 00 per month. He
has two siblings. He
is not a first offender. He has two previous convictions of theft.
The first conviction was in 2003 and the
second conviction in 2008.
He was arrested the same day of the offence and was kept in detention
for eight months awaiting trial
and finalisation of this matter.
[7]
I am of the view that the youthfulness of the appellant at the time
of the commission of the offence, the fact that he had already
spent
a period of eight months in detention, taken cumulatively with other
favourable circumstances such as the fact that the complainant
was
not seriously injured and the cellphone was recovered immediately,
amount to compelling and substantial circumstances which
ought to
have persuaded the trial court to impose a sentence less than
prescribed minimum sentence.
[8]
It is correct that long term imprisonment is the only appropriate
sentence. I, however, do not think that fifteen years is the
only
appropriate sentence the trial court could have imposed. The sentence
that I have in mind as appropriate, differs from the
sentence
imposed, that it justifies interference by this Court as expostulated
in
S
v
Malqas
2001
(1) SACR 136
(SCA).
[9]
In the circumstances the appeal succeeds and the following order is
made:
ORDER:
1.
The appeal against sentence succeeds.
2.
The sentence imposed on 4 April 2008 is
set
aside
and substituted by the following:
"10
(ten) years imprisonment of which 4 (four) years is suspended for 5
(five) years on condition that the accused is not convicted
of rape
or attempt thereto committed during the period of suspension."
3.
In
terms of
section 282
of the
Criminal Procedure Act, 51 of 1977
, it is
ordered that the sentence imposed be antedated to
4
April
2008.
B.C.
MOCUMIE, J
I
concur
M.B.
MOLEMELA, J
On
behalf of the appellant:
Mr.
K. Pretorius
Instructed
by: Justice Centre BLOEMFONTEIN
On
behalf of the respondent: Adv. C.F. Steyn
Instructed
by:
Director
of Public Prosecutions BLOEMFONTEIN