Mkhungo v S (AR 322/2020) [2022] ZAKZDHC 4 (11 February 2022)

Mkhungo v S (AR 322/2020) [2022] ZAKZDHC 4 (11 February 2022)

The court found that the cumulative effect of the sentence imposed in this matter, when added to the sentence the appellant was already serving, was unduly harsh. The appellant was already serving a sentence that would only expire in 2023, and the new sentence would ordinarily commence thereafter, resulting in a lengthy period of incarceration. The court held that it was appropriate to direct that three years of the sentence imposed in this matter run concurrently with the existing sentence, thereby mitigating the cumulative effect. The court was satisfied that this constituted a sufficient disparity to warrant interference with the sentence imposed by the magistrate.

Citation
[2022] ZAKZDHC 4
Parties
Appellant: Morris Mdu Mkhungo; Respondent: The State
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
11 February 2022
Case Number
AR 322/2020
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence succeeds in part; three years of the 15-year sentence to run concurrently with the existing sentence. Sentence ante-dated to 19 October 2020.
Judges
Ploos van Amstel, Moodley
Legal Topics
Attempted Extortion, Sentencing Principles, Concurrent Sentences, Mitigation of Sentence
Criminal Law Attempted Extortion Sentencing Principles Concurrent Sentences Mitigation of Sentence

Case Brief

Summary, issues, holding and outcome

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Parties

Morris Mdu Mkhungo

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the sentence imposed by the magistrate was unduly harsh given the cumulative effect with the appellant's existing sentence.
  2. 2 Whether it is appropriate to order that part of the new sentence run concurrently with the existing sentence.
  3. 3 Whether sufficient disparity exists to warrant interference with the sentence imposed.

Ratio Decidendi

The court found that the cumulative effect of the sentence imposed in this matter, when added to the sentence the appellant was already serving, was unduly harsh. The appellant was already serving a sentence that would only expire in 2023, and the new sentence would ordinarily commence thereafter, resulting in a lengthy period of incarceration. The court held that it was appropriate to direct that three years of the sentence imposed in this matter run concurrently with the existing sentence, thereby mitigating the cumulative effect. The court was satisfied that this constituted a sufficient disparity to warrant interference with the sentence imposed by the magistrate.

Court Disposition

Appeal against sentence succeeds in part; three years of the 15-year sentence to run concurrently with the existing sentence. Sentence ante-dated to 19 October 2020.

Orders

  • Three years of the sentence of 15 years’ imprisonment imposed by the magistrate will run concurrently with any sentence that the appellant is currently serving.
  • The sentence is ante-dated to 19 October 2020.