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[2008] ZAWCHC 170
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Bhatyi v S (A547/2007) [2008] ZAWCHC 170 (11 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISIONS
CASE
NO
:
A547/2007
DATE
:
1
1 APRIL 2008
In the matter between:
SISEKO
BHATYI
Appellant
and
THE
STATE
Respondent
JUDGMENT
(Appeal
against Sentence)
ZONDI,
J
:
[1]
The appellant appeared in the Wynberg Regional Court on 8 March 2007
on a charge of robbery with aggravating circumstances.
The charge was
subject to the provisions of section 51 of Act 105 of 1997. The
charge sheet alleges that the appellant robbed one
Elvis Jameni of
his cellphone, namely a Samsung EH60V. The appellant, who was legally
represented, pleaded not guilty to the charge
but after a lengthy
trial he was convicted and sentenced to 15 years
1
Imprisonment. The appellant, with the leave of the Court a
quo,
now
appeals to this Court against sentence only.
[2]
Counsel for the appellant, while accepting that the interest of
society is an important factor, in his heads of argument argued
that
it should not, however, be overemphasised at the expense of the
accused's personal circumstances.
[3]
It is trite law that the imposition of an appropriate sentence is a
matter pre-eminently for the discretion of the trial Court
and that
the sentence should only be altered if the discretion has not been
judicially and properly exercised. The test on whether
the sentence
should be altered is whether it is vitiated by irregularity or
misdirection or is disturbingly inappropriate. However,
not every
misdirection warrants interference with the sentence imposed by the
trial Court. It has to be a material one, that is
to say the one
which according to the dictates of justice engenders a clear
conviction that an error of such a nature, degree or
seriousness, has
been committed that it shows directly or indirectly that the trial
Court failed to properly or reasonably exercise
its discretion as
regards the sentencing
[4]
It appears to be trite that a misdirection is material when the trial
Court has misconstrued the facts, has failed to take cognisance
of
factors that should have been taken into account or has over or
under-emphasised an accused's personal circumstances in relation
to
other relevant factors.
[5]
In this matter the magistrate, before deciding on a sentence of
15 years' imprisonment, had this to say:
"There
are indeed mitigating factors in this particufar matter in the form
of the accused's personal circumstances, to a certain
extent his age,
but the question is whether this also qualifies as compelling and
substantial circumstances or not. I am afraid
from what has been said
in mitigation of sentence the circumstances do not constitute
compelling and substantial circumstances
as envisaged by the Act,
instead this has been robbery which was committed by the accused with
brazenness as well as violence.
The complainant was severely hit with
a bottle and also threatened during the process, t mean this is an
example of the kind of
mischief and cancer that the courts are trying
to clean and the Legislature had in mind when promulgating the
Minimum Sentence
Act".
[6]
In other words, the trial Court before sentencing the appellant,
enquired whether there were substantial and compelling circumstances
justifying the imposition of a sentence less than the prescribed
minimum sentence of 15 years.
[7]
In the process of assessing an appropriate sentence, the trial Court
does not seem to have had regard to the fact that the appellant
was a
21 year old first offender who has a minor child. In my view, these
are the factors which should have persuaded the Court
to find that
there were indeed substantial and compelling circumstances.
Substantial and compelling circumstances do not mean exceptional
circumstances.
[8]
In my view, the trial Court misdirected itself in finding that the
appellant's personal circumstances did not constitute substantial
and
compelling circumstances. This misdirection influenced the trial
Court's assessment of an appropriate sentence. This Court
is
accordingly entitled to interfere with the sentence imposed by the
trial Court because of the misdirection.
[9]
The sentence of 15 years' imprisonment on a first offender is, in my
view, unjust. Having regard to the seriousness of the offence
and the
interests of the community there is no doubt that the offence calls
for long term imprisonment. Society needs to be protected
against the
offenders committing violent crimes. The only question is what the
duration thereof should be, bearing in mind the
provisions of section
51 of Act 105 of 1997. A sentence must, as far as possrble, attempt
to achieve the objectives of punishment,
namely deterrence,
prevention, retribution and rehabilitation.
[10]
The sentence which, in my view, will be appropriate in the
circumstances is the one that will meet the deterrent and
preventative
aspects of punishment while at the same time give the
offender an opportunity to rehabilitate himself. In the
circumstances, I
am of the view that 12 years' imprisonment coupled
with a suspended portion of the sentence will be an appropriate
sentence which
would ensure that in the future the appellant will
think twice before committing the offence of robbery.
[11]
Accordingly, the appeal against the sentence imposed on the appellant
succeeds and the following order is made in substitution
of the
sentence imposed by the trial Court:
suspended
for three years on condition that the appellant is not convicted of
robbery with aggravating circumstances committed during
the period of
suspension.
ZONDI,
J
LOUW,
J
:
I agree. It is so ordered.
LOUW,
J