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2013
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[2013] ZAGPJHC 281
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Mahuma v S (A194/2013) [2013] ZAGPJHC 281 (8 November 2013)
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC OF SOUTH
AFRICA)
CASE
NO: A194/2013
In the matter:
MAHUMA,
LUCKY
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
THOBANE AJ:
[1] The appellant
was arraigned in the Randfontein Regional Court on the following
seven charges:
Count 1: Robbery with
aggravating circumstances,
Count
2: Attempted murder,
Count
3: Robbery with aggravating circumstances,
Count
4: Robbery with aggravating circumstances,
Count
5: Robbery with aggravating circumstances,
Count
6: Possession of a firearm without a license,
Count
7: Unlawful possession of 2 live rounds of ammunition.
The
provisions of section 51 (2) of Act 105 of 1997 were applicable to
charges 1, 2, 3, 4 and 5.
[2] The appellant
was legally represented throughout the trial proceedings. He pleaded
not guilty to all the charges and offered
no plea explanation.
[3] The appellant
was convicted on all counts with the exception of count 5 on which he
was acquitted.
[4] The appellant
was sentenced to 54 years imprisonment broken down as follows:
Count
1: 15 years;
Count
2: 5 years;
Count
3: 15 years;
Count
4: 15 years;
Count
6: 3 years;
Count
7: 1 year.
[5] In terms of
Section 12 (2) of Act 75 of 1969 read with Section 103 of Act 60 of
2000, the appellant was declared unfit
to posses a firearm.
[6] Pursuant to a
petition application before this Court, leave to appeal against
sentence in respect of all counts was granted.
Leave to appeal
against conviction on counts 1 and 3 was refused.
[7]
A brief background of the offences is necessary. Regarding the first
and the second count, the complainant, a taxi driver, was
approached
at a taxi rank by the appellant whom he subsequently positively
identified at an identification parade. A discussion
ensued about
sale of tyres and after a while the appellant instructed him to drive
to certain place. When they came to a stop he
was pointed with a
firearm and robbed of R1 400-00 plus a further R270-00. He was
shot at and injured.
With
regard to the third count of robbery, the complainant in that matter
was robbed by the appellant with a knife. The following
items were
taken, a cellphone, wrist watch, gold necklace, the sum of R320, as
well as a firearm. The offence was committed with
the help of an
accomplice. The appellant was positively identified at an
identification parade. A version was put to the complainant
on behalf
of the appellant that the firearm had been handed to the appellant
freely for safekeeping.
Regarding
the fourth count, a firearm was used to rob the complainant, a taxi
driver, of the following items, R600-00 in cash, a
cellphone. The
complainant had enough time to observe the appellant. They spoke for
about an hour, he was therefore certain about
his identity.
On
count number six and seven, the appellant was found by the police
hiding under a bed, after the police had entered the place
using a
bathroom window. He was found in possession of the firearm as well as
ammunition. He did not have a license to possess
both the firearm and
the ammunition. The cellphone belonging to the complainant in count
number four was found in the possession
of the appellant. The firearm
found belonged to the complainant in count number three.
[8] The appellant
testified in his own defense. No evidence was led with regard to the
5
th
count.
[9] It is telling
that no argument was tendered on behalf of the appellant for his
acquittal at the end of the case.
[10] The personal
circumstances of the appellant were advanced by him when he testified
under oath as follows:
·
He was 24 years of age;
(when cross examined it came out that he had lied about his age, that
he was over 30 years old)
·
He was single;
·
He had two dependants,
one aged 2 and the other was less than a year old;
·
He has passed standard
8;
·
He was in custody for
about 10 months awaiting trial;
·
He had previous
convictions. On the 17
th
November 1995 he was convicted of housebreaking with intent to steal
and theft and sentenced to 4 years imprisonment suspended
in whole
for 5 years. On the 28
th
February 1997 he was convicted of possession of presumably stolen
goods and sentenced to 6 months imprisonment wholly suspended
for 5
years.
[11] The magistrate was
careful to observe that imposition of sentence should not be out of
anger. It is clear that the sentencing
court was mindful of the
principles in
R v Zinn
1969 (2) SA 537
(A)
. The learned
magistrate referred to
S v Rabie
1975 (4) SA 865
(A) 862
as
well as the following decisions to illustrate the approach to be
taken when imposing sentence:
S
v Du Toit
1979 (3) SA 46
(A);
S
v Reay
1987 (1) SA 837
(A)
R
v Hlongwane
1959 (3) SA 337
(A)
S
v Myute and others 1985 (2) SA (KSC)
S
v Mahose 1998 (1) SASV 185 (O)
[12] It has been
submitted on behalf of the appellant that the cumulative effect of
the sentence, being 54 consecutive years, is
shockingly inappropriate
and therefore misdirection. Further that the court
aquo
should
have ordered some of the sentences to run concurrently.
[13] There was
concurrence on behalf of the respondent who submitted that although
the individual sentences imposed in respect of
each count were not
per se harsh, but that the cumulative effect thereof does induce a
sense of shock.
[14] It is trite law that
in an appeal against sentence, the court of appeal should be guided
by the principle that punishment is
pre-eminently a matter for
discretion of the trial court and should only be interfered with if
the discretion to sentence was not
judicially and properly exercised.
S v Rabie
1975 (4) SA 855
(A).
[15] A sentence imposed
by a lower court should only be altered if:
a)
An irregularity took
place during the trial or sentencing stage;
b)
The trial misdirected
itself in respect of the imposition of sentence;
c)
The sentence imposed by
the trial court could be described as disturbingly or shockingly
inappropriate.
S v
Malgas
2001 (1) SACR 469
(SCA).
[16] I agree that the
sentence of 54 years direct imprisonment induces a sense of shock
and should be interfered with.
[17] The approach to be
adopted is to take all the offences together for purposes of
sentence.
[18] I accordingly make
the following order:
18.1
The appeal against sentence is upheld, the sentence imposed by the
court
aquo
is
set aside;
18.2
The offences are taken together for purposes of sentence and the
appellant is sentenced to 35 years imprisonment.
SA
THOBANE
Acting
Judge of the High Court
I AGREE.
B
MASHILE
JUDGE
OF THE HIGH COURT
Date
of Hearing: 17/10/2013
Date
of judgment: 08/11/2013
Counsel
For Appellant: Adv. Karen Cosyn
Instructed
by: Legal Aid Board South Africa
Counsel
For Respondent: Adv. SJ Khumalo
Instructed
by: National Prosecuting Authority