Da Silva v S (A-P220-17) [2019] ZAGPJHC 433 (1 November 2019)

Da Silva v S (A-P220-17) [2019] ZAGPJHC 433 (1 November 2019)

The trial court materially misdirected itself by failing to consider comprehensive pre-sentencing reports and the appellant's personal circumstances, including his role as sole caregiver to a minor child. The appellant was convicted of attempted murder with intent in the form of dolus eventualis, which reduces moral blameworthiness. No physical injury resulted from his conduct, and he is a first-time offender with no history of violence. Correctional supervision is appropriate given the appellant's remorse, stable employment, and the devastating impact imprisonment would have on his minor child. The interests of society are served by allowing the appellant to remain a productive member...

Citation
[2019] ZAGPJHC 433
Parties
Appellant: Marques De Almeida: Daniel Da Silva; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 November 2019
Case Number
A-P220-17
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal upheld. Sentence of eight years' imprisonment set aside and replaced with two years' imprisonment wholly suspended for two years, plus twenty-four months of correctional supervision under specified conditions.
Judges
I Opperman, CJ Coertse
Legal Topics
Sentencing Principles, Correctional Supervision, Attempted Murder, Mitigating Factors, Primary Caregiver, Dolus Eventualis
Criminal Law Sentencing Principles Correctional Supervision Attempted Murder Mitigating Factors Primary Caregiver Dolus Eventualis

Case Brief

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Parties

Marques De Almeida: Daniel Da Silva

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentence of eight years' imprisonment imposed for attempted murder was appropriate in light of the appellant's personal circumstances and the facts of the case.
  2. 2 Whether the trial court misdirected itself by failing to consider pre-sentencing reports and the appellant's role as sole caregiver.
  3. 3 Whether correctional supervision is an appropriate sentence for the appellant given the seriousness of the offence and mitigating factors.

Ratio Decidendi

The trial court materially misdirected itself by failing to consider comprehensive pre-sentencing reports and the appellant's personal circumstances, including his role as sole caregiver to a minor child. The appellant was convicted of attempted murder with intent in the form of dolus eventualis, which reduces moral blameworthiness. No physical injury resulted from his conduct, and he is a first-time offender with no history of violence. Correctional supervision is appropriate given the appellant's remorse, stable employment, and the devastating impact imprisonment would have on his minor child. The interests of society are served by allowing the appellant to remain a productive member...

Court Disposition

Appeal upheld. Sentence of eight years' imprisonment set aside and replaced with two years' imprisonment wholly suspended for two years, plus twenty-four months of correctional supervision under specified conditions.

Orders

  • The appeal is upheld.
  • The sentence imposed by the trial court on 3 November 2017 is set aside and replaced with two years' imprisonment, wholly suspended for two years on condition that the appellant is not convicted of an offence listed in Schedules 5 and 6 of the Criminal Procedure Act 51 of 1977 during the period of suspension,...