S v Phakathi and Others (judgment on sentence) (CCD52/2021) [2024] ZAKZPHC 20 (18 March 2024)

S v Phakathi and Others (judgment on sentence) (CCD52/2021) [2024] ZAKZPHC 20 (18 March 2024)

The court found that, although the prescribed minimum sentence for murder committed during a robbery with aggravating circumstances is life imprisonment, there were substantial and compelling circumstances justifying a departure. These included the youthfulness of accused one and three, the absence of personal firearm possession, the display of some remorse, and the lack of clear intent to commit murder. The court also considered the accused's personal circumstances and the four years spent in custody awaiting trial. Accused two's extensive criminal record warranted a more severe sentence than the others. The court ensured that the cumulative effect of the sentences was not unduly harsh...

Citation
[2024] ZAKZPHC 20
Parties
Applicant: The State; Defendant: Smanga Phakathi; Defendant: Sipho Richard Mthembu; Defendant: Sibonelo Mabosi Sihlongonyene
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
18 March 2024
Case Number
CCD52/2021
Procedural Posture
Criminal Law / Sentencing
Outcome
The accused were sentenced to terms of imprisonment below the statutory minimum, with sentences structured to run concurrently where appropriate, resulting in effective sentences of twenty years for accused one and three, and twenty-five years for accused two.
Judges
Mossop
Legal Topics
Minimum Sentencing, Murder, Attempted Robbery, Substantial and Compelling Circumstances, Remorse, Ubuntu
Criminal Law Minimum Sentencing Murder Attempted Robbery Substantial and Compelling Circumstances Remorse Ubuntu

Case Brief

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Parties

The State

Applicant

Smanga Phakathi

Defendant

Sipho Richard Mthembu

Defendant

Sibonelo Mabosi Sihlongonyene

Defendant

Procedural Posture

Criminal Law / Sentencing

Legal Issues

  1. 1 Whether substantial and compelling circumstances exist to justify departure from the prescribed minimum sentence for murder committed during a robbery with aggravating circumstances.
  2. 2 How the principles of ubuntu and remorse should influence sentencing.
  3. 3 Whether the cumulative effect of multiple sentences is unduly harsh.

Ratio Decidendi

The court found that, although the prescribed minimum sentence for murder committed during a robbery with aggravating circumstances is life imprisonment, there were substantial and compelling circumstances justifying a departure. These included the youthfulness of accused one and three, the absence of personal firearm possession, the display of some remorse, and the lack of clear intent to commit murder. The court also considered the accused's personal circumstances and the four years spent in custody awaiting trial. Accused two's extensive criminal record warranted a more severe sentence than the others. The court ensured that the cumulative effect of the sentences was not unduly harsh...

Court Disposition

The accused were sentenced to terms of imprisonment below the statutory minimum, with sentences structured to run concurrently where appropriate, resulting in effective sentences of twenty years for accused one and three, and twenty-five years for accused two.

Orders

  • Accused one: Fifteen years' imprisonment for attempted robbery with aggravating circumstances; twenty years' imprisonment for each of two counts of murder; sentences on count one and count three to run concurrently with count two; effective sentence: twenty years' imprisonment.
  • Accused two: Sentences structured so that fifteen years of the attempted robbery sentence and the entire sentence for one murder count run concurrently with the other murder count; effective sentence: twenty-five years' imprisonment.