S v MTHETHWA 2016 (1) SACR 510 (KZP)

Child — Sentence — For murder and attempted murder — Accused’s childhood characterised by neglect and ineffective parenting as he was abandoned as baby — Court a quo failing to attach sufficient weight to youthfulness and prospects of rehabilitation — Sentence of 18 years’ imprisonment reduced on appeal to 12 years’ imprisonment.


The appellant was convicted in the High Court of one count of murder and one count of attempted murder. At the time of the commission of the offences he was 16 years and six months old. He was sentenced to 18 years’ imprisonment for the murder and eight years’ imprisonment for the attempted murder. The sentences were ordered to run concurrently.

In the present matter he appealed to the full bench against sentence only. The state conceded the appeal in respect of the second count as there were no aggravating factors justifying the imposition of a more severe sentence than the minimum five-year sentence prescribed by law. The appellant was sentenced under the provisions of s 51(6) of Criminal Law Amendment Act 105 of 1997 (the Act) prior to its amendment in 2007. In order to take account of the declaration of constitutional invalidity of ss (6) and that he was under the age of 18 years at the time of the commission of the offence, his sentence needed to be reconsidered — the provisions of s 51 of the Act also no longer applied to him subsequent to the amendment. It was submitted on his behalf that the sentence of 18 years’ imprisonment was shockingly harsh and disproportionate to the circumstances of the case.

Held, that the evidence in mitigation revealed a childhood characterised by neglect and ineffective parenting as the appellant’s mother had abandoned him as a baby and he had been brought up by his paternal grandmother. At the age of 13 he had begun to mix with the wrong crowd which had led to the commission of the offence. The appellant was nevertheless a child and should have been treated as such. The court a quo had attached insufficient weight to his youthfulness and the prospects of rehabilitation, which were good, as he was a first offender. In the circumstances a sentence of 12 years’ imprisonment was imposed on the first count and a sentence of five years’ imprisonment on the second count and it was ordered that they were to run concurrently.


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