Faku v S (A288/2018) [2020] ZAGPPHC 381 (12 August 2020)

Faku v S (A288/2018) [2020] ZAGPPHC 381 (12 August 2020)

The court found that the magistrate misdirected himself by imposing a sentence in excess of the prescribed minimum without adequately considering whether substantial and compelling circumstances existed to justify such deviation. Although the appellant's counsel had the opportunity to present mitigating factors, the failure to request a probation officer's report or call witnesses did not amount to a misdirection by the court. The appellant's previous conviction and subsequent commission of a more serious offence indicated a propensity for criminal conduct. The court concluded that there were no substantial and compelling circumstances to warrant a deviation from the prescribed minimum...

Citation
[2020] ZAGPPHC 381
Parties
Appellant: Sibusiso Frans Faku; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 August 2020
Case Number
A288/2018
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence upheld; sentence reduced from 18 years to 15 years' imprisonment.
Judges
Sardiwalla, Munzhelele
Legal Topics
Sentencing Discretion, Minimum Sentences, Mitigating Factors, Robbery With Aggravating Circumstances
Criminal Law Sentencing Discretion Minimum Sentences Mitigating Factors Robbery With Aggravating Circumstances

Case Brief

Summary, issues, holding and outcome

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Parties

Sibusiso Frans Faku

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentence imposed by the magistrate was disturbingly disproportionate.
  2. 2 Whether the trial court erred by not allowing submissions on imposing a sentence in excess of the applicable minimum sentence.
  3. 3 Whether sufficient evidence in mitigation was placed on record.

Ratio Decidendi

The court found that the magistrate misdirected himself by imposing a sentence in excess of the prescribed minimum without adequately considering whether substantial and compelling circumstances existed to justify such deviation. Although the appellant's counsel had the opportunity to present mitigating factors, the failure to request a probation officer's report or call witnesses did not amount to a misdirection by the court. The appellant's previous conviction and subsequent commission of a more serious offence indicated a propensity for criminal conduct. The court concluded that there were no substantial and compelling circumstances to warrant a deviation from the prescribed minimum...

Court Disposition

Appeal against sentence upheld; sentence reduced from 18 years to 15 years' imprisonment.

Orders

  • The appeal against sentence is upheld.
  • The sentence period of 18 years' imprisonment is set aside and replaced with 15 years' imprisonment.