S v Nkomo (A123/2018) [2019] ZAGPJHC 420 (29 April 2019)

S v Nkomo (A123/2018) [2019] ZAGPJHC 420 (29 April 2019)

The court found that the magistrate correctly exercised her discretion in sentencing, except for the error regarding the appellant's offender status. The appellant should be treated as a first offender, as conceded by the State. The magistrate overcompensated for the appellant's illegal status, which had already been considered in sentencing. There were no substantial or compelling circumstances to deviate from the minimum sentence, and the circumstances justified a longer sentence. The sentence was substituted to reflect the correct offender status and to back-date the commencement of the sentence to the date of arrest. The appellant was also declared unfit to possess a firearm.

Citation
[2019] ZAGPJHC 420
Parties
Respondent: The State; Appellant: Ben Nkomo
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 April 2019
Case Number
A123/2018
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence partially upheld; sentence substituted and back-dated.
Judges
Yacoob, Du Plessis
Legal Topics
Minimum Sentencing, First Offender Status, Parole Eligibility, Illegal Immigration, Firearm Disqualification
Criminal Law Minimum Sentencing First Offender Status Parole Eligibility Illegal Immigration Firearm Disqualification

Case Brief

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Parties

The State

Respondent

Ben Nkomo

Appellant

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the appellant should be treated as a first offender or second offender for sentencing purposes.
  2. 2 Whether the time served by the appellant should be taken into account in sentencing.
  3. 3 Whether there are substantial or compelling circumstances to deviate from the prescribed minimum sentence.

Ratio Decidendi

The court found that the magistrate correctly exercised her discretion in sentencing, except for the error regarding the appellant's offender status. The appellant should be treated as a first offender, as conceded by the State. The magistrate overcompensated for the appellant's illegal status, which had already been considered in sentencing. There were no substantial or compelling circumstances to deviate from the minimum sentence, and the circumstances justified a longer sentence. The sentence was substituted to reflect the correct offender status and to back-date the commencement of the sentence to the date of arrest. The appellant was also declared unfit to possess a firearm.

Court Disposition

Appeal against sentence partially upheld; sentence substituted and back-dated.

Orders

  • The accused is sentenced to 19 years' imprisonment in terms of section 51(2) of Act 105 of 1997.
  • The sentence will run from the date of arrest, that is 5 September 2013.