Lesolle and Another v S (A66/2017) [2017] ZAGPJHC 250 (8 September 2017)

Lesolle and Another v S (A66/2017) [2017] ZAGPJHC 250 (8 September 2017)

The appeal court found that the trial court misdirected itself by over-emphasizing the absence of remorse, failing to properly consider the best interests of the second appellant's mentally disabled child, and not providing adequate reasons for rejecting correctional supervision as a sentencing option. The court held that the absence of remorse should not be treated as an aggravating factor, and that the trial court failed to conduct a proper enquiry into the impact of imprisonment on the second appellant's child. These misdirections entitled the appeal court to interfere with the sentence. Considering the individual circumstances of both appellants, including their status as first...

Citation
[2017] ZAGPJHC 250
Parties
Appellant: Eric Lesolle; Appellant: Makgaba Semenya; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 September 2017
Case Number
A66/2017
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal upheld; sentence set aside and replaced.
Judges
L Vuma, I Opperman
Legal Topics
Sentencing Principles, Correctional Supervision, Remorse, Best Interests of Child, Misdirection on Sentence
Criminal Law Sentencing Principles Correctional Supervision Remorse Best Interests of Child Misdirection on Sentence

Case Brief

Summary, issues, holding and outcome

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Parties

Eric Lesolle

Appellant

Makgaba Semenya

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the trial court misdirected itself in imposing seven years direct imprisonment on each appellant.
  2. 2 Whether correctional supervision under section 276(1)(i) of the Criminal Procedure Act was an appropriate sentence.
  3. 3 Whether the trial court properly considered the best interests of the second appellant's mentally disabled child.

Ratio Decidendi

The appeal court found that the trial court misdirected itself by over-emphasizing the absence of remorse, failing to properly consider the best interests of the second appellant's mentally disabled child, and not providing adequate reasons for rejecting correctional supervision as a sentencing option. The court held that the absence of remorse should not be treated as an aggravating factor, and that the trial court failed to conduct a proper enquiry into the impact of imprisonment on the second appellant's child. These misdirections entitled the appeal court to interfere with the sentence. Considering the individual circumstances of both appellants, including their status as first...

Court Disposition

Appeal upheld; sentence set aside and replaced.

Orders

  • The appeal is upheld.
  • The sentence imposed by the Wynberg Regional Court is set aside and replaced with five years imprisonment for each accused in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1977.