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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISON, PRETORIA

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

CASE NO: A285/2018

              

In the matter between:

 

SIBUSISO NOCHAWE                                                                                               Appellant

                                                                                                                                   

and

 

THE STATE                                                                                                                Respondent

                                                                                   

 

JUDGMENT

 

SARDIWALLA J

 

INTRODUCTION:^[1]

[1]        This is an appeal against sentence only. The appellant appeared in the Regional Division of Brakpan on one charge of robbery with aggravating circumstances. He was also declared unfit to possess a firearm in terms of 103(1) of the Firearms Control Act 60 of 2000. The appellant pleaded guilty and was sentenced to an effective period of 15 years of imprisonment.

[2]         On 25 May 2018 the appellant was granted leave to appeal against his sentence only. The appellant was legally represented in all proceedings against him.

ISSUES ON APPEAL

[3]        The issue is whether the sentence imposed by the magistrate was disturbingly disproportionate. The appellant in its heads of argument stated that the trial court erred in that the court assumed the armchair approach in the sentencing proceedings by failing to consider a probation officers report in mitigation. The court therefore erred in finding that there were no substantial and compelling circumstances that warranted a deviation from the prescribed minimum sentence.

LAW AND ANALYSIS

[4]        It is trite that sentencing remains pre-eminently within the discretion of the sentencing court. In Mokela v The State 2012 (1) SACR 431 (SCA) para [9], Bosielo JA stated the following:

 

'This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served. The limited circumstances under which an appeal court can interfere with the sentence imposed by a sentencing court have been distilled and set out in many judgments of this Court. See S v Salzwedel 1999 (2) SACR 586 (SCA) at 591F-G; S v Pieters 1987 (3) SA 717 (A) at 727F-H; S v Malgas 2001 (1) SACR 469 (SCA) para [12]; Director of Public Prosecutions v Mngoma 2010 (1) SACR 427 (SCA) para [11]; and S v Le Roux & others 2010 (2) SACR 11 (SCA) at 26b-d. '

 

[5] It was held in S v Salzwedel 1999 (2) SACR 586 (SCA) that:

 

"An appeal Court is entitled to interfere with a sentence imposed by a trial court in a case where the sentence is 'disturbingly inappropriate', or totally out of proportion to the gravity or magnitude of the offence, or sufficiently disparate, or vitiated by misdirection of a nature which shows that the trial court did not exercise its discretion reasonably." 

 

[6] The appellant argued that this was his first offence and conviction therefore it should be met with a measure of mercy. Counsel submitted that the court failed to consider the personal circumstances of the appellant as set out in the pre-sentencing report. It was argued that the appellant had pleaded guilty and that this Court should consider the impact that the appellants up bring had on him. The appellant aims to suggest that as the appellant grew up in an abusive environment that it has led him towards acts of violence. Further that his drug addiction began as a means to assist an injury he sustained during a traditional initiation ceremony and therefore this court should consider that rehabilitation would best assist the appellant rather than prescribing the minimum sentence required. It was also submitted that the complainant did not suffer any serious bodily injury and that money stolen from her was later returned. It was also argued that the appellant is fairly young and remorseful. It was submitted that all these mitigating factors accumulatively should have deterred the court from prescribing the minimum sentence.    

 

 

[7]        I have read the judgments of the court a quo and I agree with the learned magistrate that there is no evidence or reasoning before this Court to determine that any substantial and compelling circumstances existed for consideration. I also agree with the learned magistrate that the crimes committed against woman and children by nyaope drug addicts have increased significantly and a message must be sent that this conduct will not be tolerated. Whilst the appellant alleges that the learned magistrate failed to consider the factors contained in the pre-sentencing report, I must respectfully disagree with this contention. To the contrary the learned magistrate made reference to the pre-sentencing report and the factors concerning the appellants drug addiction and personal circumstances and still found that no substantial and compelling circumstances existed. The learned magistrate clearly applying his mind stated the following;

 

“Everything in the accused’s life, in this case specifically seems to be blamed on his drug dependency problem because of his injury he sustained at initiation school, which feels him to be less of a man. I always have a question in my mind when dealing with cases such as this where drugs are involved. Should the court make very much about this drug addiction at all because how would it be viewed if the drug addiction was alcohol? How would it be viewed if a person under the influence of alcohol kills somebody? How should it be viewed in a case such as this of drugs if something went wrong and the accused killed the complainant, which would then have meant that he would have gone to prison for life? Humans have weaknesses and I think all of us have that and it can be understood under the circumstances. But in this circumstance portrayed before me from the facts before me that accused now, already being in trouble is jumping from spot to spot to see how to get out of his situation, going for rehabilitation, enrolling with SANCA whilst as a man with a family he is doing nothing”.

 

            …..

           

He went on to further say that,

 

“Before a court can find that an accused person is genuinely remorseful, it needs to have proper appreciation of inter alia (1) what motivated the accused to commit the deed; (2) what has since provoked his or her change of heart; (3) whether he or she does have a true appreciation of the consequences of those actions. The first one is what motivated the accused to commit the deed. The accused tells me that it was his craving for nyaope that he decided to rob the complainant. I mention what I have just said again. His family is sitting in court. He has paid R500.00 bail in this matter. He has been to SANCA. He had many other options but to resort to crime. Yet this is what he chose and he wants this court to feel sorry for him because he has a drug problem. The second question is what has since provoked his or her change of heart. It is good that the accused who I can see comes from a good family has been taught to accept responsibility for his actions and he is doing so and I commend him for that. Maybe the accused genuinely now that he knows what he is facing is 15 years’ imprisonment genuinely wants to make a change in his life. But unfortunately it is now a little bit late because unfortunately his track record even conveyed in the probation officer’s report shows that he did not come right in school and there is no indication that it is because of a learning disability. His own father says that it is because of his abuse of drugs. His own father took action in sending him to initiation school. My only feeling I develop from this case is his change of heart is due to the fact that he knows he is facing long term imprisonment for something he should have attended to long before this incident happened”.

 

[8]        A court is not called upon to be a referee between the parties but has a judicial duty to apply the law to the facts of the matter before him. There is sufficient evidence against the appellant on sentencing that must be attached to give due weight to the gravity of the crime for which the appellant has been convicted to determine whether the sentences were ‘disturbingly inappropriate’. I am unable to find that even in light of the report that the appellants personal circumstances would outweigh the interests of justice. The learned magistrate in his judgment on sentence correctly referred the honourable Justice’s sentiments in S v Matyityi 2011 (1) SACR 40 (SCA) that courts are obliged to impose the minimum sentences unless that are truly convincing reasons for departing from them. They should not be based on the whims of the judicial officer or their personal notions of fairness.

 

[9]        However, having considered both arguments before this court, I agree with the view held in Mokela v The State supra that sentencing is pre-imminently the discretion of the sentencing court, I am satisfied that the proceedings were in accordance with justice. I am of the view that the reasoning and rationale by the learned magistrate above on the imposition of the prescribed minimum sentence was not unreasonable in the circumstances. I find that there existed no substantial and compelling circumstances to warrant a deviation from the prescribed minimum sentence of 15 years’ imprisonment.

 

 

 

ORDER

[10]     It is ordered that:

1.    The appeal against sentence is dismissed.

 

 

 

 

SARDIWALLA J

JUDGE OF THE HIGH COURT

 

I AGREE

 

 

MUNZHELELE A J

ACTING JUDGE OF THE HIGH COURT

 

 

 

APPEARANCES

 

Date of hearing                                                 :              3 September 2019             

Date of judgment                                              :              12 August 2020

 

Appellant’s Counsel                                       :               Adv.: J K Kgokane

Appellant’s Attorneys                                     :               Legal Aid South Africa

Respondent’s Counsel                                    :               Adv.:  L Williams

Respondent’s  Attorneys                                 :               NDPP                                                                 

 

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