Tembe v S (406/2017) [2019] ZAGPPHC 517 (28 June 2019)

Tembe v S (406/2017) [2019] ZAGPPHC 517 (28 June 2019)

The court found that the trial court misdirected itself by failing to order that all sentences run concurrently and by not recognizing the appellant's youthfulness and status as a first offender as substantial and compelling circumstances justifying deviation from the prescribed minimum sentence. The effective sentence of 30 years was deemed shockingly inappropriate and disproportionate to the circumstances. The appeal was upheld, and the sentence was replaced with 10 years' imprisonment on each count, to run concurrently from the date of conviction.

Citation
[2019] ZAGPPHC 517
Parties
Appellant: Armando Tembe; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 June 2019
Case Number
406/2017
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence upheld; sentence set aside and replaced.
Judges
L Vuma, N Mngqibisa-Thusi
Legal Topics
Minimum Sentencing, Substantial and Compelling Circumstances, Concurrent Sentences, First Offender, Youthfulness, Duplication of Charges
Criminal Law Minimum Sentencing Substantial and Compelling Circumstances Concurrent Sentences First Offender Youthfulness Duplication of Charges

Case Brief

Summary, issues, holding and outcome

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Parties

Armando Tembe

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the trial court erred by not ordering the sentences on all counts to run concurrently.
  2. 2 Whether the trial court failed to find substantial and compelling circumstances justifying deviation from the prescribed minimum sentence.
  3. 3 Whether the sentence imposed was disturbingly inappropriate given the appellant's personal circumstances.

Ratio Decidendi

The court found that the trial court misdirected itself by failing to order that all sentences run concurrently and by not recognizing the appellant's youthfulness and status as a first offender as substantial and compelling circumstances justifying deviation from the prescribed minimum sentence. The effective sentence of 30 years was deemed shockingly inappropriate and disproportionate to the circumstances. The appeal was upheld, and the sentence was replaced with 10 years' imprisonment on each count, to run concurrently from the date of conviction.

Court Disposition

Appeal against sentence upheld; sentence set aside and replaced.

Orders

  • The appeal is upheld.
  • The sentence imposed by the Regional Court, Atteridgeville is set aside and replaced with 10 years' imprisonment on each count.