1

IN THEWESTERN CAPE HIGH COURT, CAPE TOWN

High Court Case No:xxxxx

Lower Court Case Noxxxxxx

DPP Ref No:9/2/5/1 xxxxxx

In the appeal between

JOHN DOE Appellant

and

THE STATERespondent

APPELLANT’S HEADS OF ARGUMENT ON APPEAL

INTRODUCTION

  1. The Appellant, a 29 year old male, was arraigned in the Regional Court at xxxxxxx on (1)one count of Robbery with aggravating circumstances as defined in s (1)(1)(b) of Act 51 of 1977 and read with the provisions of s 51 and 52 of Act 105 of 1997. He was subsequently convicted and after the court found that there were no substantial and compelling circumstances was sentenced to 15 (fifteen) years imprisonment on xxxxxx. The appellant was legally represented during the trial.
  1. On xx May 200x the Appellant applied for condonation and leave to appeal against sentence and the court a quo granted both applications on the same day.
  1. The Appellant now approaches this Honourable Court with an appeal against the sentence of 15 (fifteen) years imprisonment.

AD SENTENCE

  1. It is trite law that this Honourable Court can interfere with the sentence imposed by a lower court if it is clear that the lower court did not exercise its discretion properly and judicially, and where a misdirection has taken place that lower court did not exercise its discretion at all or exercised it improperly or unreasonably.

See: S v Rabie 1975 (4) SA 855 (A)[1]

S v Pieters 1987 (3) SA 717 (A)

S v Pillay 1977 (4) SA 531 (A

  1. The prescribed minimum sentence for the crime ofwhich the

Appellant was convicted was 15 (fifteen) years imprisonment in terms of s 51 (2) (a) of Act 105 of 1997. The Regional Magistrate after considering the personal circumstances of the appellant, the nature of the crime and the interest of society found no “substantial and compelling circumstances” present and imposed the prescribed

sentence.

(See pagina119 to 122 of the record of proceedings)

  1. It is submitted with respect that one of the most important aspects of Appellant’s personal circumstances as revealed in his evidence under oath in mitigation of sentenceviz: his state of health, was either disregarded or the Regional magistrate failed to consider it as a relevant factor. The Appellant testified that he has AIDS.This fact was never contested or disputed.

(See pagina 116 of the record of proceedings)

  1. It is unfortunate that neither the legal representative of the Appellant nor the public prosecutor deemed it necessary to investigate the state of the Appellant’s health fully.

(Seepagina 116 of the record of proceedings)

  1. It is respectfully submitted on behalf of the Appellant that the failure of the legal representative of the Appellant or public prosecutor to place sufficient facts concerning the state of health of Appellant before the court in these circumstances placed a duty on the court a quo(when establishing whether “substantial and compelling circumstances” were present or not), to receive relevant evidence on this aspect in terms of s 274(1) of Act 51 of 1977. The court’s failure to do so it is suggested withrespect, amounted to a failure of the court to exercise its discretion “properly and reasonably”.

See S v Rasengani 2006(2) SACR 431 (SCA)

S v Vilakazi 2009(1) SACR 552 (SCA)[2]

Rammoko v Director of Public Prosecutions 2003(1) SACR 200

(SCA)

S v Magida 2005 (2) SACR 591 (SCA) at 596

  1. It is submitted furthermore with respect that the state of health of the Appellant and the fact that he has contracted AIDs is of paramount importance and a factor which plays a direct role in the determination of an appropriate sentence and in particular the determination of “substantial and compelling circumstances” when the imposition of a minimum sentence is considered. It specifically plays a role when determining an appropriate term of imprisonment.

See S v Magida supra[3]

S v Cloete1995 (1) SACR 367 (W)

S v C1996 (2) SACR 503 (T)

See also Mazibuko v Minister of Correctional Services and

Others2007(2) SACR 303 (T) and Stanfield v Minister of

Correctional Services2004 (4) SA 43 (C)

  1. It is furthermore respectfully submitted that theonly time that

it appears from the record that themedical condition of the

Appellant received any specific attention by the court a quo

was during the application for leave to appeal. The Regional

magistrate it is respectfully submitted then acknowledged the

importance of the medical condition of the Appellant and in

granting leave to appeal remarked at pagina138 of the

record, “What may makedifference is the fact that theaccused is a first

offender and the Court has also noticed that there is a marked

difference in his stature since his conviction in respect of his illness.

Faced with these facts, another Courtmay possibly take adifferent view

in respect of sentence…”

  1. It is respectfully submitted that if the medical condition of the

Appellant was properly investigated before the imposition of

sentence and confirmation received that he is terminally ill,

this factor together with:

  • All other personal circumstances;
  • the fact that the Appellant does not have a tendency to commit crimes of dishonesty or violence;
  • the fact that the appellant had been in custodysince his arrest on xxxx 2006;
  • the fact that the motor vehicle was recovered in an undamaged state; and,
  • that the fact thatalthough the perpetrators had the means to commit serious acts of violence only threats of violence wereused during the commission of the offence;

would have constituted “substantial and compelling circumstances” and resulted in the imposition of a lessersentence.

See S v Vilakazi supra[4]

S v Malgas2001 (1) SACR 469 (SCA)

  1. It is therefore submitted with respect that as far as the medical

condition of the appellant is concerned insufficient facts were

receivedand further evidence should have been received by

the court a quobefore sentence was imposed.

Conclusion

  1. It is respectfully submitted that whereas the court a quodid not exercise its discretion “properly and judicially” by failing to consider all the relevant factors,the appellant requests thisHonourable Court to set aside the sentence and in the circumstances remit the matter back to the Regional magistrate to receive the relevant evidence and reconsider an appropriate sentence.

Dated at Cape Town this xx day of xxxxxxx

______

Counsel for the Appellant

TO:THE REGISTRAR

WESTERN CAPE HIGH COURT

CAPE TOWN

AND TO:THE DIRECTOR OF PUBLIC PROSECUTIONS

CAPE OF GOOD HOPE

BUITENGRACHT STREET

CAPE TOWN

LIST OF AUTHORITIES

  1. S v Rabie 1975 (4) SA 855 (A)
  2. S v Pieters 1987 (3) SA 717 (A)
  3. S v Pillay 1977 (4) SA 531 (A
  4. S v Rasengani 2006(2) SACR 431 (SCA)
  5. S v Vilakazi 2009(1) SACR 552 (SCA)
  6. Rammoko v Director of Public Prosecutions 2003(1) SACR 200 (SCA)
  7. S v Magida 2005 (2) SACR 591 (SCA)
  8. S v Cloete1995 (1) SACR 367 (W)
  9. S v C1996 (2) SACR 503 (T)
  10. Mazibuko v Minister of Correctional Services and

Others2007 (2) SACR 303 (T)

  1. Stanfield v Minister of Correctional Services2004 (4)

SA 43 (C)

  1. S v Malgas2001 (1) SACR 469 (SCA)

[1]Op 855 per Holmes AR: “In every appeal against sentence…, the Court hearing the appeal- (a) should be guided by the principle that punishment is “pre-eminently a matter for the discretion of the trial court” and (b) should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been “judicially and properly exercised”.

[2] Per Nugent JA at 560: “It is clear from the terms in which the test was framed in Malgas and endorsed in Dodo that it is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of a particular case, whether the prescribed sentence is indeed proportionate to the particular offence”.

[3]Per Navsa JA at 595-596: “ Whilst it is correct that any illness does not per se entitle a convicted person to escape imprisonment , the facts presented to us by the appellant and the issue raised before the Court below comprise matter forming part of the totality of the circumstances of a convicted person that ought to be considered in order to do justice both to the person to be sentenced and to society”

Further at 596 the Court stated with reference to S v Cloetesupra and S v C infra: “…it has been held that a court,in considering an appropriate sentence, may take into account a convicted person’s ill health and how it may relate to the effect of a contemplated sentence. Thus, for example, a particular sentence may be rendered more burdensome by reason of an offender’s state of health”.

[4]Per Nugent JA at 561, “… it is clear that the effect of those qualifications is that any circumstances that would render the prescribed sentence disproportionate to the offence would constitute the requisite ‘weighty justification’ for the imposition of a lesser sentence”.