(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

JUDGMENT
GOLIATH, J

Jason Beasly, the son of the deceased, testified that he accompanied his father to see his sister who suffered from a disability. He observed his sister speaking to his father, that is the deceased, and shortly thereafter both appellant and deceased displayed anger toward each other. The appellant and the deceased confronted each other and the appellant hit the deceased over the head with an axe.
The appellant admitted that he hit the deceased once with the axe. The magistrate rejected the appellant’s version that the deceased was armed with a gun during the confrontation. The deceased sustained three wounds to the head and his brain matter was exposed.

Counsel on behalf of the appellant contends that the magistrate misdirected herself in over-emphasising the seriousness of the offence at the expense of appellant’s personal circumstances.
Counsel on behalf of the state contends that due to the violent nature of the crime the sentence is indeed appropriate in view of the fact that the Act permits a maximum sentence of 20 years for a first offender.
However, counsel on behalf of the state conceded that the minimum sentence of 15 years imprisonment would indeed have been appropriate in the circumstances.
It is trite that a court of appeal will only interfere with the sentence of a trial court in certain limited circumstances. Interference will only take place if the sentence imposed is shockingly severe or if a misdirection had been committed by the trial court.
It must be borne in mind that this unfortunate incident occurred within the context of a domestic dispute. The incident happened at the appellant's residence and it is not disputed that both appellant and deceased displayed anger during the incident. There was therefore an element of provocation prior to the incident.
The appellant is a first offender and in all likelihood, this could be a once off incident. I will therefore be hesitant to conclude that the appellant is a danger to society at large.
The appellant was 40 years old; married with three children; and gainfully employed at the time of sentencing. He was the breadwinner of his family. The appellant indicated some form of remorse for his action during his testimony.
In my view the above factors should have been taken into account in considering whether there are substantial and compelling circumstances.
The cumulative effect of the above factors justify a departure from the prescribed minimum sentence. Furthermore, there is a marked disparity between the sentence imposed by the trial court and that which this court would have imposed, sufficient to warrant interference.
In my view, the imposition of a sentence of 17 years imprisonment under these circumstances bring about an injustice to the appellant.
I am however of the view that direct imprisonment is the only appropriate sentence for this type of offence. In the result the following order is made:
The appeal succeeds and the sentence imposed by the trial court is set aside and substituted with the following sentence:

GOLIATH, J

I agree and it is so ordered.

VAN STADEN, AJ