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[2009] ZAFSHC 29
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Buwa v S [2009] ZAFSHC 29 (12 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : A223/08
In the
matter
between:-
FANI
JAMES BUWA
Appellant
versus
THE
STATE
Respondent
_________________
____________________________________
CORAM:
VAN
DER MERWE, J
et
MATHEBULA,
AJ
_____________________________________________________
HEARD
ON:
2
FEBRUARY 2009
_____________________________________________________
JUDGMENT
BY:
MATHEBULA
, AJ
_____________________________________________________
DELIVERED
ON:
12
MARCH 2009
_____________________________________________________
JUDGMENT
_____________________________________________________
[1]
The
appeal lies against sentence imposed by the Regional Magistrate,
Frankfort. The appellant was convicted and sentenced as follows:
Charge
1: Robbery with aggravating circumstances as described in section 1
of the Criminal Procedure Act, 51 of 1977 (as amended) and
sentenced
to 15 (fifteen) years imprisonment.
Charge
3: Contravening the provisions of section 3 of Act 60 of 2000
(Unlawful Possession of Firearms) and sentenced to 5 (five) years
imprisonment.
Charge
4: Contravening the provisions of section 90 of Act 60 of 2000
(Unlawful Possession of Ammunition) and sentenced to 1 (one) year
imprisonment.
[2] In
sentencing the appellant, the Regional Magistrate did not order that
any of these sentences should run concurrently. In
total, the
appellant must serve 21 (twenty one) years imprisonment.
[3] Broadly
the appellant and three others stormed into a house on the farm
Riverside in the district of Frankfort on the 31
st
October 2004. They held the family and their domestic worker hostage
by tying their hands with cables. They subjected them to
one of the
most humiliating treatment,
inter
alia
,
threats or intimidation and even beatings. Although a shot was
fired, no-one was hit or sustained any fatal injuries. They made
off
with a considerable quantity of goods, arms and ammunition. It
appears that their motive was to rob them of arms and ammunition.
They were arrested on the same day and most of the stolen property
was found and returned to the rightful owners.
[4] It
is trite law that sentencing is a primary domain of the trial court.
The Court of Appeal should not lightly interfere with
the sentence
imposed by the trial court. See
S
v PIETERS
1987 (3) SA 717
(A) at 728B â C. The Court of Appeal can interfere
if the trial court misdirected itself or the sentence is shockingly
inappropriate.
[5] On behalf of the
appellant, Mr. Van Rensburg submitted that the sentence is shockingly
inappropriate; that the trial court should
have ordered that the
sentences run concurrently. Mr. Mthethwa, representing the
respondent, made a concession in this regard
and rightly so.
[6] It
appears to me, with respect, that the Regional Magistrate adopted a
value driven approach in sentencing the appellant. In
so doing he
misdirected himself by overemphasizing the seriousness of the offence
and the interests of society over other factors
like the personal
circumstances of the appellant. In the end he failed to strike a
balance and came to the inappropriate sentence.
[7] All
the offences committed on the day arose out of the same transaction.
There were no fatal injuries sustained by the victims.
All the
stolen property was recovered and restored to the rightful owners.
The personal circumstances of the appellant are of
such a nature that
one hardly finds criminal propensity on his part.
[8] The
Regional Magistrate should have given thought to
section 280(2)
of
the
Criminal Procedure Act, No. 51 of 1977
as amended. The section
reads as follows:
â
(2) Such
punishments, when consisting of imprisonment, shall commence the one
after the expiration, setting aside or remission of
the other, in
such order as the court may direct, unless the court directs that
such sentences of imprisonment shall run concurrently.â
Failure
to apply the provisions of this section rendered the sentence harsh
and inappropriate.
In
this matter, I am at liberty to interfere with the sentence imposed
by the Regional Magistrate.
[9] I make the following
order:
1. The sentences on
charges 1, 3 and 4 are confirmed.
2. In
terms of section 280 of the Act, the sentences on charges 1, 3 and 4
will run concurrently so that the cumulative effect
of the sentence
is 15 (fifteen) years imprisonment backdated to the 6
th
of March 2007.
___________________
M.A. MATHEBULA, AJ
I
concur.
_______________________
C.H.G VAN DER MERWE, J
On
behalf of appellant: Adv. T.B. van Rensburg
Instructed by:
Legal
Aid Board
KROONSTAD
On
behalf of the respondent: Adv. S.M. Mthethwa
Instructed by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp