S v Simelane
| Jurisdiction | South Africa |
| Judge | B Mashile J and I Opperman AJ |
| Judgment Date | 17 April 2014 |
| Docket Number | A420/2013 |
| Court | South Gauteng High Court, Johannesburg |
| Hearing Date | 27 March 2014 |
| Citation | 2014 JDR 0917 (GSJ) |
Mashile, J:
This is an appeal against sentence on a charge of robbery with aggravating circumstances as envisaged in the Criminal Law Amendment Act No. 105 of 1997 imposed by the court a quo, the regional court for the region of Gauteng held at Germiston, on 19 March 2009.
2014 JDR 0917 p2
Mashile J
On 19 March 2009 the Appellant pleaded guilty and the court a quo was satisfied that he had admitted all the elements of the crime and accordingly found him guilty. On the same day the court ordered that the Appellant be committed to direct imprisonment for a period of 16 years.
On 11 August 2009 the Appellant sought to appeal his sentence but the court turned down his application. It was only after he had petitioned this court that leave to appeal against his sentence was granted.
The Appellant was warned that due to the nature of the offence the court would invoke the provisions of the Criminal Law Amendment Act No. 105 of 1997 in the event that he is found guilty. The Act prescribes 15 years direct imprisonment to a first offender as the minimum sentence for robbery with aggravating circumstances.
Fundamentally, the appeal against sentence is premised on the ground that the court a quo should not have added a year to the minimum sentence of 15 years prescribed by the minimum sentence legislature to which I have referred above.
In imposing the sentence, it did not strike a balance between the seriousness of the offence, the interests of society and that of the Appellant. Moreover, argued Counsel for the Appellant, the court paid lip service to mercy in that it did not show any whatsoever its assertion to the contrary notwithstanding.
2014 JDR 0917 p3
Mashile J
In terms of Section 51(3) of the Criminal law Amendment Act No. 105 of 1997, a trial court may decrease the minimum sentence provided it finds substantial and compelling circumstances. Similarly, a trial court is empowered by the provisions of the same legislation to increase the sentence should the existence of aggravating circumstances warrant it.
The trial court could not find any substantial and compelling circumstances to justify a departure from the minimum sentence. However, when it passed sentence it made reference to Section 51(3), which section deals with the existence of substantial and compelling circumstances.
In what appears to be a justification for the imposition of 16, instead of 15 years, the trial court listed the following as aggravating circumstances:
The offence is serious and prevalent in the court's jurisdiction;
No respect for other people's possessions;
A dangerous weapon was used by the Appellant to wit a firearm and knife;
The crime was motivated by greed;
The...
To continue reading
Request your trial