Nkosi v S (A484/2015) [2015] ZAGPPHC 975 (11 December 2015)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

APPEAL NO: A 484/2015

DATE OF HEARING: 01st DECEMBER 2015

DATE OF DELIVERY: 11th DECEMBER 2015

In the matter between:-

SIBUSISO NKOSI

APPELLANT

and

THE STATE

RESPONDENT

JUDGMENT

A. BACKG ROUND

1. The accused pleaded guilty on a charge of culpable homicide and he was sentenced to ten years imprisonment of which two years were suspended for three years on condition that he is not found guilty of assault during his period of suspension.

2. The appellant appealed against sentence only.

3. A statement in terms of S 112(2) of the Criminal Procedure Act 51 of 1977 was submitted and accepted by the State. The appellant's statement was that on 14 June 2014, the appellant and his girlfriend (the deceased) were at a tavern consuming alcohol until the early hours of the morning. When they arrived home an argument ensued between them. The deceased then started throwing pots and cups at him and also slapped him. He further admitted that he punched the deceased on the left side of the head and she fell down. The deceased was bleeding from her left ear and the appellant tried to stop the

bleeding with a towel.

4. The appellant then put the deceased on the bed as she became very weak. The following day he left her and went to work. When he arrived home she was still in bed and he noticed she spoke very slowly. He then went to buy some food for her to eat and medicine for her ear. He gave her a disprin tablet for the pain. Thereafter he left her and went to the tavern returning the following day. At some stage during his absence she died.

B. THE APPEAL

5. The appellant appeals his sentence on the basis that is too "shockingly harsh and induces a sense of shock". The Magistrate misdirected herself as she overemphasized the interests of the community whilst underemphasizing the personal circumstances of the appellant. She specifically overemphasized the fact that the deceased was a woman.

6. In argument the counsel for the appellant referred to authorities where it was stressed that the object of sentencing is not to satisfy public opinion but to serve the public interest.

7. The appellant requested this appeal court to consider the following factors when considering his sentence, namely:

(1) that he was still young and still studying;

(2) he had to support himself and does earn a living;

(3) he is a first offender and thus he is not a hardened criminal;

(4) he has a stable personality and can be rehabilitated;

(5) the appellant and the deceased had been living together for at least 2 years;

(6) during this time there has been no history of violence by the appellant towards the deceased;

(7) the fact that he was under the influence of alcohol before the assault, reflects that alcohol deprived him of his mental capacity;

(8) he definitely showed remorse the moment he found that this girlfriend died. He immediately called the police, admitted to the police as well as her family that he was responsible for her death. These actions on their own reflect that he showed remorse and regretted his actions.

8. It was submitted that even though the offence is of a serious nature, the sentence is harsh. This appeal court should consider imposing a lesser sentence as the circumstances of this case is not as severe as other cases.

C. ANALYSIS AND FINDINGS

9. In coming to its decision on sentence the court found that his conduct prior to the deceased's death does not in any way reflect

that he was remorseful. If he showed any remorse, he would have ensured that she received the necessary medical treatment, at least.

He left her in bed to die. Even after he spent the day at work, he still had the audacity to go to the tavern for hours. His confession

after the fact does not indicate an individual showing regret. In S v Rabie 1975 (4) SA 855 (A), Holmes JA held:

"punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to circumstances"

10. These principles must be applied to the facts and the seriousness of the crime should be weighed with all relevant considerations. What is needed is a balanced and judicial assessment of all the factors.

11. It remains the prerogative of the trial court to impose sentences. The exercise of its discretion is not to be interfered with merely because the appellate court could have imposed a heavier or lighter sentence.

12. At the same time, there must not be such a disturbing disparity between the trial court's sentence and that which the appellate court would have imposed. In such an instance, interference is justified.

S v Sadler 2000 (1) SAC R 331 SCA at par 7

13. It is trite law that the imposition of the sentence is in the discretion of the trial court. An appeal court would be entitled to interfere if the sentence was irregular, disturbingly harsh, inappropriate or constitutes a misdirection on the part of the

magistrate.

14. Having regard to the court a quo's finding, I can arrive at no different conclusion. The factors which this court cannot ignore are:

14.1 He was certainly not a stable character, a factor the court a quo took into account.

14.2 He had three children from three different women residing in different areas. Despite these relationships he continued to have a fourth relationship with the deceased.

14.3 Moreover if the appellant was remorseful he would have taken the necessary steps to prevent the death of his girlfriend by seeking urgent medical help.

15. In considering an appropriate sentence this court took cognisance of the fact that the court a quo assessed all the evidence in order to establish what an appropriate sentence would be. The court a quo further considered the seriousness of the offence, his disregard for and loss of respect for women. In light thereof it would be appropriate to sentence him to ten year's imprisonment of which two years are suspended for three years on condition that he would not be found guilty of any offence involving an assault on another person. Effectively he would serve an imprisonment term for eight years. He was arrested on 17 June 2014. He has effectively served one year and six months. Effectively he has another six and a half years left. In my view the imposed sentence in the circumstances is not shocking or inappropriate.

D. ORDER

In the premises the following order is proposed:

1. The appeal is dismissed;

2. The sentence of the court a quo is confirmed.

____________________

H K Kooverjie

Acting Judge of the High Court

I agree and it so ordered.

______________________

M Jansen

Judge of the High Court