S v ROSSOUW 2018 (1) SACR 179 (NCK)
Sentence — Prescribed minimum sentence — Criminal Law Amendment Act 105 of 1997 — Substantial and compelling circumstances — Consideration of on appeal — Proper enquiry required — Cumulative factors including provocation; consumption of alcohol; prior assaults of appellant by deceased; and that appellant mother of three children and gainfully employed, constituting substantial and compelling circumstances justifying lesser sentence.
The appellant was convicted in a magistrates’ court of murder and was sentenced to 15 years’ imprisonment in terms of s 51(2) of the Criminal Law Amendment Act 105 of 1997. The incident had occurred at night following a scuffle between the appellant and deceased which ended in the appellant stabbing the deceased in the chest, the wound penetrating to his heart.
On appeal, the court dismissed the challenge to the conviction but held, in respect of the sentence, that it had to be kept in mind that ordinarily the test on appeal was not whether the court would have imposed a different sentence, but whether the court a quo had exercised its discretion judicially. Where a sentence had been imposed in terms of Act 105 of 1997 and the prescribed sentences could not be departed from lightly or for flimsy reasons, a proper enquiry was required on appeal as to whether the facts, that had been considered by the sentencing court, constituted substantial and compelling circumstances.
Held, that the personal circumstances of the appellant, namely that she was a 40- year-old first offender who had three daughters ranging between the ages of 19 and 4; that she had been gainfully employed and was an active participant in her church activities; that she had been moderately under the influence of alcohol during the commission of the crime; that the deceased had assaulted her on several occasions in the past; and that there had been a measure of provocation before the commission of the crime, the cumulative effect of these circumstances could be characterised as substantial and compelling, which would render the imposition of the minimum sentence unjust. An appropriate sentence in the circumstances would be one of 12 years’ imprisonment.