S v Olyn (08/05) [2007] ZANCHC 35 (18 May 2007)

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[2007] ZANCHC 35
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S v Olyn (08/05) [2007] ZANCHC 35 (18 May 2007)

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Yes / No
Circulate
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Appeal no: 08/05
On roll : 14 /05/ 2007
Date delivered: 18/05/2007
In
the appeal of :
FREDDIE
OLYN APPELLANT
and
THE
STATE RESPONDENT
Coram:
Kgomo
JP et Tlaletsi J
JUDGMENT
ON APPEAL
Tlaletsi
J
The
appellant was on 8 December 2001 convicted on a charge of murder by
the Regional Court sitting at Upington. He was sentenced
to 15
years imprisonment in terms of the provisions of the
Criminal Law
Amendment Act 105 of 1997
. He was legally represented. He is
appealing against his sentence with leave of the court
a
quo
.
The
grounds of appeal are that the sentence imposed is shockingly
inappropriate and that the court
aquo
erred by not finding that there are substantial and compelling
circumstances that warranted the imposition of a sentence which
is
less than the minimum sentence prescribed by the
Criminal Law
Amendment Act 105 of 1997
.
The
brief factual background is that the first state witness, an 18 year
old girl, walked past near where the Appellant was seated.
The
Appellant, unprovoked, remarked that she is getting fat. She
replied that it is not his food that is making her fat. The
Appellant took out a knife and chased her. She ran into her
grandmother’s premises and made a report to the deceased. The

deceased, a 20 year old man, went to the Appellant accompanied by
the witness and asked him why he was chasing her with a knife.
He
did not respond. As the deceased turned away to leave, the
appellant attacked him from behind with a knife and fatally stabbed
him on the neck. The wound was 4.5 cm wide and 7cm deep. The knife
cut through the deceased’s artery and the trachea. The
public
prosecutor who appeared for the state should be commended for
sticking to his guns by rejecting a plea of guilty to Culpable
Homicide, which was based on false facts. The conviction on a
charge of murder is in order.
The
Appellant’s personal circumstances are that he was 30 years old at
the time of sentence, not married and had no dependants.
He never
attended school. He was at the time of his arrest a labourer at an
abattoir earning R125-00 per week. He was under
the influence of
liquor at the time of the incident. He had two previous convictions
one of which was assault committed on 19
February 1999 for which he
was sentenced to R150-00 fine or 50 days imprisonment which was
wholly suspended for 3 years on some
conditions.
The
Regional Magistrate took account,
inter
alia
,
of the prevalence of the offence in the area, that the Appellant was
reasonably under the influence of alcohol, the seriousness
of the
offence, the fact that it was a senseless and unprovoked attack. He
further found that there were no substantial and compelling
circumstances that warranted a departure from the prescribed minimum
sentence. In recognition of the fact that Applicant had already
served 10 months awaiting trial, the magistrate remarked that he
shall not add 5 years imprisonment to the minimum prescribed

sentence which he was any way empowered to do. The Regional
Magistrate thereafter concluded with the following remarks:
“
Aan
die einde van die dag kan ek vir u net een straf oplê tensy die hof
het bevind dat daar geen dwingende en wesenlike versagtende
omstandighede bestaan nie en dit is die minimum voorgeskrewe tydperk
van gevangenisstraf. Gevolglik in terme van artikel 51(2)(a1)
Van
Wet 105 van 1997, dit is dan die wet wat die minimum vonnise
voorskryf, lê ek vir u die minimum straf op, wat ek verplig is
om op
te lê, en dit is 15 jaar tronk straf. Verstaan u dit so.”
I
am not of the view that the Regional Magistrate committed any
irregularity or misdirection in considering factors relevant to
sentencing. Mr Cloete, who appeared on behalf of the Appellant, was
also unable to direct us to any misdirection or irregularity.
One
should bear in mind that the Appellant, by virtue of his experience
at the abattoir, knew very well that a knife is a dangerous
weapon
capable of causing death, especially on the dangerous area around
the neck. Aggravating in this case, is that he was under
no attack
or threat of violence and stabbed the deceased when he had turned
away from him not expecting any attack, thereby giving
him no option
of ducking or defending himself. He also showed no remorse.
The
sentence imposed is not shockingly excessive and there is no marked
disparity between the sentence of 15 years and that this
court would
under the circumstances have imposed. The nearest misdirection that
I could come to is the fact that the Regional
Magistrate incorrectly
believed that the sentence of 15 years imprisonment is a prescribed
sentence and not necessarily the minimum
sentence that the court
could impose. This misdirection only worked to the Appellant’s
advantage. A sentence in excess of 15
years imprisonment would have
in my view not been inappropriate. The appeal should therefore not
succeed.
ORDER
In
the result I make the following order:
The
appeal against sentence is dismissed and the sentence imposed by the
Regional Magistrate is confirmed.
______________­­­­­­­­_______
TLALETSI
LP
Judge
of the High Court
Northern
Cape Division
I
concur.
_______________________
KGOMO
FD
Judge
President of the High Court
Northern
Cape Division
On
behalf of the Appellant : Adv. Cloete
Instructed
by : Legal Aid Board, Kimberley
On
behalf of the Respondent : Adv. Birch
Instructed
by : Office of the D P P, Kimberley.