Dawida Solomons vs. The State

South Africa

26.09.2022

Criminal

An appellate Court may only interfere with the sentencing discretion of the trial court on limited grounds

Present appeal is against the substituted sentence of the Northern Cape Division of the High Court, Kimberley (the high court) of the sentence imposed by the Northern Cape Regional Court sitting in Carnarvon. It involves an appropriate sentence in the context of reciprocal intimate partner violence and domestic violence. The regional court convicted Ms. Dawida Solomons (the Appellant) for the murder of Mr. Barnwell Sebenja (the deceased), her partner of 15 years. The deceased was 34 years old and the father of two of the Appellant’s children.

The Appellant seeks an order setting aside the custodial sentence imposed and for the matter to be remitted to the trial court for consideration of a sentence of correctional supervision in terms of Section 276(1)(h) of the Criminal Procedure Act, 1977, alternatively for this Court to impose a suitable sentence of correctional supervision with conditions.

The pre-sentencing report depicts a history of the intergenerational cycle of domestic violence in the Appellant’s family of origin, a significant contributor to the pervasive scourge. The impact of this history, and factors that propelled the Appellant to stay with the deceased, who she claims humiliated her, were never tested by the trial court or on appeal. Moreover, her legal representative did little to counter the impression that her conduct was synonymous with that of ‘a woman scorned’ (a pejorative term). As a result, the evidence on sentence was in the main narrowed to the fateful single incident of February 2016.

An appellate Court may only interfere with the sentencing discretion of the trial court on limited grounds; if it is satisfied that the discretion was not properly exercised or the sentence was shockingly inappropriate or disproportionate.

The Appellant did not testify in mitigation of her sentence. She does not explain the failure to do so. The threshold in Engelbrecht can only be met if evidence is adduced before the court. Despite the submissions by the State, and the paucity of evidence as to the extent and impact of the history of domestic violence, the high Court took cognisance of the protection order as an indication of the existence thereof, correctly. It ameliorated the severity of the sentence within the evidence available before it. High court exercised its discretion appropriately. The sentence is not disproportionate given the seriousness of the offence. Thus, there is no basis to interfere with the sentence imposed. The appeal against the sentence is dismissed.

Tags : Sentence Imposition Validity

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