Mishack v S (A471/2013) [2014] ZAGPJHC 82 (15 April 2014)

Mishack v S (A471/2013) [2014] ZAGPJHC 82 (15 April 2014)

The appeal court found that the cumulative effect of the 40-year sentence was shockingly inappropriate and that the trial court failed to consider the period spent in custody awaiting trial. The trial court also misdirected itself by not inviting submissions or providing reasons for exceeding the minimum sentence for attempted murder. The minimum sentences for robbery with aggravating circumstances were justified due to the seriousness and prevalence of the offences, but mercy should have been shown to young first offenders. The appeal court ordered that related sentences run concurrently and further reduced the effective sentence by the period spent awaiting trial.

Citation
[2014] ZAGPJHC 82
Parties
Appellant: Nakane Mishack; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 April 2014
Case Number
A471/2013
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence succeeds. The sentences imposed by the trial court are set aside and substituted with reduced and concurrent sentences.
Judges
B Mashile, L Windell
Legal Topics
Minimum Sentencing, Robbery With Aggravating Circumstances, Illegal Possession of Firearm, Attempted Murder, Concurrent Sentences, Mitigating and Aggravating Factors
Criminal Law Minimum Sentencing Robbery With Aggravating Circumstances Illegal Possession of Firearm Attempted Murder Concurrent Sentences Mitigating and Aggravating Factors

Case Brief

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Parties

Nakane Mishack

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the cumulative sentence of 40 years' imprisonment imposed by the trial court was shockingly inappropriate.
  2. 2 Whether the trial court erred by not considering the period spent in custody awaiting trial when imposing sentence.
  3. 3 Whether the trial court misdirected itself by failing to invite submissions and provide reasons for exceeding the prescribed minimum sentence for attempted murder.

Ratio Decidendi

The appeal court found that the cumulative effect of the 40-year sentence was shockingly inappropriate and that the trial court failed to consider the period spent in custody awaiting trial. The trial court also misdirected itself by not inviting submissions or providing reasons for exceeding the minimum sentence for attempted murder. The minimum sentences for robbery with aggravating circumstances were justified due to the seriousness and prevalence of the offences, but mercy should have been shown to young first offenders. The appeal court ordered that related sentences run concurrently and further reduced the effective sentence by the period spent awaiting trial.

Court Disposition

Appeal against sentence succeeds. The sentences imposed by the trial court are set aside and substituted with reduced and concurrent sentences.

Orders

  • Each appellant is sentenced to imprisonment for 15 years (Count 1), 3 years (Count 2), 5 years (Count 3), and 15 years (Count 4).
  • The sentence in Count 2 is to run concurrently with that in Count 1.