Tembe v S (406/2017) [2019] ZAGPPHC 306 (2 July 2019)

Tembe v S (406/2017) [2019] ZAGPPHC 306 (2 July 2019)

The appeal 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 warranting deviation from the prescribed minimum sentence. The effective sentence of 30 years was deemed shockingly inappropriate. The appeal court held that the sentences on all counts should run concurrently and that a sentence of 10 years' imprisonment on each count, running concurrently, was appropriate given the circumstances.

Citation
[2019] ZAGPPHC 306
Parties
Appellant: Armando Tembe; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 July 2019
Case Number
406/2017
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence upheld; sentence set aside and replaced.
Judges
VUMA, N MNGQIBISA-THUSI
Legal Topics
Minimum Sentence Regime, Substantial and Compelling Circumstances, Concurrent Sentences, First Offender, Youthfulness, Duplication of Charges
Criminal Law Minimum Sentence Regime 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 in failing to order that sentences on all counts run concurrently.
  2. 2 Whether the trial court failed to consider the appellant's personal circumstances as substantial and compelling for deviation from the prescribed minimum sentence.
  3. 3 Whether the effective sentence of 30 years' imprisonment was shockingly inappropriate.

Ratio Decidendi

The appeal 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 warranting deviation from the prescribed minimum sentence. The effective sentence of 30 years was deemed shockingly inappropriate. The appeal court held that the sentences on all counts should run concurrently and that a sentence of 10 years' imprisonment on each count, running concurrently, was appropriate given the circumstances.

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.