S v Brown

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mamosebo J and Eillert AJ
• Judgment Date: 18 March 2022
• Court: Northern Cape Division
• Hearing Date: 08 March 2021
• Citation: 2022 (2) SACR 194 (NCK)
• Counsel: IJ Nel for the appellant. C Jansen for the state.
• Docket Number: CA&R 2/21

Eillert AJ (Mamosebo J concurring):

Introduction

[1] The appellant was charged in the regional court for the district of Postmasburg, held at Postmasburg, with one count of attempted murder and one count of discharge of a firearm in a built-up area or public place in contravention of the provisions of the Firearms Control Act (the FCA). [1] He was convicted in the court a quo on both counts and sentenced on 16 September 2019 to direct imprisonment of six years, the court a quo taking both counts together for purposes of sentence.

[2] The court a quo refused the appellant leave to appeal the convictions and the sentence. Leave to appeal was granted on petition to the Judge President of this division on sentence only.

The grounds of appeal

[3] The appellant attacked the sentence imposed by the court a quo on five grounds, which can be summarised in three, in that the trial court had erred —

(a)

in underemphasising the personal circumstances of the appellant and overemphasising the seriousness of the offences, thereby imposing a sentence that induces a sense of shock and that can be described as disturbingly inappropriate;

(b)

in finding that the appellant did not show remorse, by smiling throughout the proceedings; and

(c)

in imposing a sentence on the second count that exceeds the maximum penalty prescribed in s 121 read with sch 4 to the FCA.

[4] What stand for determination by this court are two issues:

[4.1]

Whether the six-year sentence imposed for both the offences, of attempted murder and discharging of a firearm in a built-up area

Eillert AJ (Mamosebo J concurring)

or public place, induces a sense of shock or is disturbingly inappropriate; and

[4.2]

whether the court ought to have considered imposing the sentence in the firearm conviction separately from the attempted-murder count, instead of imposing a globular sentence.

[5] In S v Mthembu [2019] ZASCA 160 (525/2019; 28 November 2019) para 13, Dlodlo JA, writing for the unanimous court, considering the submission that the sentences were inappropriate, remarked:

'But the trite principle of our law is that sentence is the prerogative of the trial court. This court, in S v Snyders, reaffirmed the principles that a court of appeal will not interfere with a sentence imposed by a trial court, unless it is of such a nature that no reasonable court ought to have imposed it, or it is out of proportion to the gravity or magnitude of the offence, or it induces a sense of shock or outrage, or it is grossly excessive or inadequate, or there was an improper exercise of its discretion by the trial court, or the interests of justice requir[e] it. The mere fact that a court of appeal would have imposed a lighter sentence if the punishment were within its discretion, is not in itself sufficient reason for it to intervene.'

Whether the court a quo misdirected itself in exercising its sentencing discretion

[6] A major thrust in the submissions made by Mr Nel on behalf of the appellant was the suggested extent to which the court a quo in its judgment on sentence elaborated on some of the factors influencing its sentence, compared to the brevity with which the court a quo dealt with other relevant factors. However, as we know, the extent to which a court in its reasons for judgment spends on the evaluation of a factor influencing its judgment, or the fact that a court is silent on a certain aspect in its reasons, does not per se mean that one factor weighed more heavily with the court than another, or that a factor was overlooked, and that therefore the court a quo misdirected itself. In this regard this court encapsulates the ground by the appellant that the trial court did not consider the complainant's attitude that he forgave him.

[7] As stated in S v Pillay 1977 (4) SA 531 (A), [2] it is for the trial court, in its sentencing discretion, to assess the value to be attached to each factor to be taken into account and, further, that no judgment can ever be perfect and all-embracing. [3] But, as was also pointed out in Pillay, when it appears to a court of appeal that a trial court ought to have paid regard to certain factors and that it failed to do so, or that it ought to have assessed the value of the factors differently from what it did, to such an extent that the nature, degree or seriousness thereof shows, directly or inferentially, that the trial court did not exercise its sentencing...