S v Freeman (CA&R64/06) [2006] ZANCHC 115 (1 August 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2006
>>
[2006] ZANCHC 115
|

|

S v Freeman (CA&R64/06) [2006] ZANCHC 115 (1 August 2006)

Reportable:
Yes / No
Circulate to Judges:
Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case no:
CA&R
64/06
Date
delivered:
00/08/2006
In the matter of
:
FRANCOIS FREEMAN
Appellant
v
THE STATE
Respondent
Coram:
Tlaletsi AJP
et
Mokgohloa
AJ
JUDGMENT
ON APPEAL
Tlaletsi AJP:
The appellant was
convicted on his written plea of guilty on a charge of murder at the
Upington Regional Court on 13 March 2000.
He was on the same day
sentenced to undergo 15 years imprisonment in terms of Section
51(2)(a)(i) of Act 105 of 1997. He is
now appealing against his
sentence with the leave of the trial court.
His ground of appeal as
contained in the Application for Leave to Appeal dated 21 December
2005 are that the sentence imposed is
shockingly excessive and
inappropriate seen in the light of the decision in
S
v Malgas
which had not been decided at the time of his sentence.
The uncontested facts
upon which the conviction is based as contained in the statement in
terms of
Section 112(b)
of the
Criminal Procedure Act 51 of 1977
are
as follows. The appellant was busy doing his duties at the farm at
which he was employed and resided. His concubine (the
deceased)
returned form town in the afternoon with wine. They both drank the
liquor and they became embiated. One of the farm
workers came to
them. He told the accused that the farm owner is sending them to
gather wood for him. The deceased would allow
the appellant to go
due to jealousy. An argument ensued. The deceased pushed the
appellant from the empty tin of paint he was
sitting on next to the
fire and he fell over. She swore at him. He stood up and sat again
on the tin. She at some stage during
the shouting, told the
appellant that he will see what will happen to him if he left. She
went into the house. The appellant
drew his knife and followed her
into the house as he did not know what she was going to do in the
house. As she formed back he
stabbed her once on the left part of
the chest. He was very angry.
The appellant’s
personal circumstances on record are that he had three previous
convictions. In 1987 he was convicted of theft
and sentenced to 5
strokes with a light cane. In 1989 he was convicted of two counts
of assault and was fined R 60-00 or thirty
days imprisonment. In
1994 he was convicted of two counts of fraud and the two were taken
together for purposes of sentence and
was fined R 1 000-00 or one
year imprisonment. He was 31 years old and had been staying with
the deceased as husband and wife
for about two and a half years.
They both have a one and a half year old child. He also has an
eleven year old child. He passed
standard 5 at school. He was at
the time of his arrest employed as a labourer. Himself and the
deceased were both under the influence
of liquor. The concentration
of alcohol form the blood specimen taken form the deceased was 0.24g
per 100 millilitres.
Sentencing is
pre-eminently within the discretion of the trial court. An
appellate court can only interfere in instances where
there is
material misdirection by the trial court which vitiate the exercise
its discretion, or I cases of marked disparity between
the sentence
imposed by the trial court and that which the appellate court would
have imposed. (See:
S
v Malgas
2001(1)
SACR 469 (SCA) at 478d-g;
S
v M
1982(1) SA 589(AD) at 592G-H).
In
casu
the trial Magistrate correctly found that the offence committed by
the appellant complied with circumstances described in
Part 2
of
Schedule 1 of the
Criminal Law Amendment Act 105 of 1997
. The court
was entitled to impose minimum sentence of 15 years imprisonment if
it is of the view that there are no substantial
and compelling
circumstances justifying the departure. The Regional Magistrate’s
approach in interpreting the Act is recorded
as
inter
alia
as follows:-
g
Mnr
Freeman as die Hof u vonnis dan moer die Hof sommer wegspring daarmee
om dit uit te wys dat u nou een van daardie persone is wat
getref is
deur die sogenaamde verpligte minimum vonnise, Artikel 51 van Wet 105
van 1997 bepaal dat, as `n persoon our as agtien
jaar is en hy het `n
moord gepleeg na die 1ste Mei 1998 en hy word deur die Hof skuldig
bevind aan die moord dan moet die Hof hom
`n minimum vonnis van
vyftien jaar oplê, soos die Engelse sê finish en klaar, hierdie Hof
het geen jurisdiksie nie, ek kan nie
iets anderste vir u oplê nie
met die beste wil ter wêreld en ek hoor wat u Regsverteenwoordiger
vir die Hof gevra her wat u aan
hom oorgedra het vir `n buite strafe
k kan u niks anderste as vyftien jaar tronkstraf oplê nie, ek mag
nie, daaroor is die gesag
duidelik dit is gykte reg nou in die
Noord-Kaap ook ek het nie `n keuse nie, waar die Hof darem vir u
tegemoet kan kom, want in hierdie
saak miskien kan ek dit miskien ook
net dadelik uitwys is dit ook so dat daar geen dwingende of wesenlike
omstandighede bestaan nie,
u omstandighede is maar basies dieselfde
as alle ander gevalle waar hierdie minimum verpligte vonnisse van
toepassing is wat ek die
afgelope tyd verhoor het en ek sal nou-nou
daarby stilstaan. ”
gc
U
is vir all praktiese doeleindes `n eerte oortreder wat
geweldsoortredinge aanbetref, u het so `n blapsie op u record, maar
dit is
so lank terug en dis so gering date k dit heeltemal buite
berekening laat, drank het `n rol gespeel u het boonop berou getoon,
u
kom skuldig pleit dit is alles versagtende omstandighede, maar
hierdie versagtende omstandighede legeer nie die minimum vonnis wat
ek vir u moet oplê nie. Ek neem ook die belange van die gemeenskap
in aanmerking, maar dit is nie eens its waaraan ek my steur
in
hierdie geval nie, soos ek sê ek het nie `n keuse nie daarom date k
vir u netnou al gesê het ek hoor wat u Regsverteenwoordiger
vir die
Hof vra dat ek vir u buite straf moet oorweeg, ek mag nie, die Wet sê
ek moet vir u daardie straf oplê en ek kan nie daarvan
afwyk nie, my
hande is afgekap en dit is omdat mense nie wil hoor nie.”
It is indeed correct as
Mr Barnard, on behalf of the respondent has submitted that this case
was concluded before the decision of
the Supreme Court of Appeal in
S v Malgas (supra). The Magistrate relied on the decision of this
division in S v Boer en Andere
2000(2) SACR 114 (NC) which approach
has since been corrected in the Malgas decision (supra). To
simplify matters, the Regional
Magistrate’s view that his hands
have been chopped off, and sentencing discretion taken away, and
that ordinary mitigating and
aggravating, but something exceptional
must be present to conclude that substantial and compelling
circumstances exist, is in my
view a misdirection. (See:
S
v Malgas
(
supra
)
at 481h – 482g).
Given the misdirection
referred to in paragraph 7 above, this court to at large to
reconsider the matter of sentence afresh. The
fact that the
appellant pleaded guilty, was provoked, was under the influence of
liquor, that he acted on the spur of the moment,
that his relevant
previous conviction was relatively old, are to me strongly
mitigation factors which cumulatively rank as substantial
and
compelling. However, this crime remains serious and the sentence to
be imposed should be assessed paying due regard to the
bench mark
provided by the Legislature. In my view a sentence of 10 years
would be appropriate.
In the result I
make the following order:
The appeal against
sentence succeeds and the sentence of 15 years imprisonment is set
aside.
The appellant is
sentence to 10 years imprisonment.
The sentence in (2)
above is antedated to 13 February 2000.
_________________
L P TLALETSI
ACTING JUDGE PRESIDENT
I
concur.
_____________________
F E MOKGOHLOA
ACTING JUDGE
On behalf of the Appellant:
Adv
B Segone
(Legal Aid Board)
On behalf of the Respondent:
Adv
T Barnard
(Director of Public Procecutions