Kunene v S (A75/2023) [2024] ZAGPJHC 515 (27 May 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2024 >> [2024] ZAGPJHC 515 | Noteup | LawCite sino index ## Kunene v S (A75/2023) [2024] ZAGPJHC 515 (27 May 2024) Kunene v S (A75/2023) [2024] ZAGPJHC 515 (27 May 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2024_515.html sino date 27 May 2024 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG APPEAL CASE NO: A75/2023 1. REPORTABLE: YES / NO 2. OF INTEREST TO OTHER JUDGES: YES/NO 3. REVISED. In the matter between: KUNENE REUBEN LEBOHANG APPELLANT And THE STATE RESPONDENT MABESELE J ET KUNY J JUDGMENT MABESELE J: [1]  The appellant was convicted of robbery with aggravating circumstances and sentenced to 15 years imprisonment. He appeals against sentence. [2]  The appellant raises two issues in this appeal. First, he contends that the order should have been made that the sentence of 15 years imprisonment imposed on him should run concurrently with the remaining portion of sentence of 15 years imprisonment which was imposed on him for the same offence mentioned in paragraph 1, which he committed in 2006. The appellant was out on parole when he committed the second offence. He had already served 12 years of 15 years imprisonment. His second argument is that the period of time that he had spent in prison, awaiting finalization of the trial, should have been considered as a strong mitigating factor which would have had a great impact on the sentence. [3]  Our courts stated in numerous decisions that sentencing is a prerogative of the trial court. The appeal court can only interfere with the sentence imposed by the trial court if the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate. [1] The court in S V Zinn [2] stated that where sentence is to be imposed on the accused regard must be had to the crime, the offender and the interests of society. [4]  The magistrate took into account the personal circumstances of the appellant which were placed on record. The appellant was 37 years old. He has six children from different women. The children reside with their mothers. The appellant spent one year and three months, awaiting the finalization of the matter. [5]  The magistrate was alive to the fact that, since the appellant has a previous conviction of robbery with aggravating circumstances for which he was sentenced to 15 years imprisonment, the appellant was supposed to have been sentenced to a period of 20 years imprisonment for committing the same offence, as prescribed by law [3] . The magistrate decided not to impose the said sentence on the appellant even though the magistrate correctly found no substantial and compelling factors which justified deviation from the prescribed minimum sentence.. For all these reasons, the appeal should be dismissed. [6]  Therefore, the following order is made: 1. The appeal against sentence is dismissed. M.M MABESELE ( Judge of the High Court Gauteng Local Division) I agree S.KUNY ( Judge of the High Court Gauteng Local Division) Appearances On behalf of the Appellant                    : Adv. Nhlazo Instructed by                                         : Legal Board Aid South Africa On behalf of the Respondent                : Adv. Zuma Instructed by                                         : Director of Public Prosecutions Date of Hearing                                     : 20 May 2024 Date of Judgment                                  : 27 May 2024 [1] See Director of Public Prosecutions, Kwa Zulu-Natal V P, 2006(1) SACR 243(SCA) [2] 1969(2) SA 537(A) at 540(G) [3] Part II of Schedule 2 of the Criminal Law Amendment Act makes provision for sentence to imprisonment for a period of 20 years for a second offender sino noindex make_database footer start