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[2014] ZAGPJHC 16
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Mpofu v S (A393/2013) [2014] ZAGPJHC 16 (18 February 2014)
SAFLII
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Certain
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IN THE GAUTENG HIGH COURT
(LOCAL DIVISION
JOHANNESBURG)
Case No: A393/2013
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
18 February 2014
EJ
FRANCIS
In the matter between:
MILTON
MPOFU Appellant
and
THE
STATE Respondent
JUDGMENT
FRANCIS J
1. The appellant was
charged in the Johannesburg Regional Court with housebreaking with
intent to rob and robbery with aggravating
circumstances and with
attempted rape. He pleaded not guilty to both counts on 16
August 2006. On 3 October 2006 he
was found guilty as charged
on count 1 and found guilty of a lesser charge of indecent assault on
count 2. He was sentenced
on the same day to 20 years
imprisonment on count one and one year imprisonment on count 2,
which was an effective 21 years
term of imprisonment.
2.
Leave to appeal was only granted against sentence by the court
a
quo
.
3. The
complainant was a […] year old [….] at the time of the
commission of the offences. On 12 April 2006 at
23h30 she
locked her house, switched off the lights and went to sleep. At
about 20 to 30 minutes later she woke up and found
two males in her
room who told her to tell them where the money was failing which they
would kill her. She asked them how
they got into her
house but they continued to threaten that they
would kill her if she did not give them the money. She told
them that her money
was in her purse and that they could take it and
leave. They swore at her and smacked her in her face and would
do so whenever
she answered their questions. One of the men who
she later identified as the appellant grabbed her chains off her neck
and
asked her where the firearms were kept. He at some stage
said that that “he feel like sex” and then lay on top
of
her but there was a duvet between the two of them. He did
nothing but laid on her for about a minute before he got off
her.
They then tied her ankles and wrists, and she was told to lie very
still or she would be killed. After a short
while she heard
that it was quiet, so she untied herself and telephoned 10111 and
contacted the police. She inspected her
house and found that
her drawers had been opened and her goods were lying around and her
cupboards were emptied. After 15
to 20 minutes the police
arrived with the appellant who she identified as the taller of the
person who had entered her house and
laid on her. He was
wearing her daughter’s leather jacket and her, the
complainant’s wallet, was protruding from
the jacket pocket.
There was a R20 note in the wallet which the appellant claimed to be
his. All her cards and other things
were removed from the
wallet which she did not recover. She did not recover all the things
that were stolen from her house which
amounted to R24 000.00.
The two policemen who arrested the appellant testified that they had
responded to a call of
a house robbery. When they were close to
the complainant’s house they saw two people carrying some
goods. When
the two persons saw them they dropped what they
were carrying and started running away. They gave chase and
they arrested
the appellant. The other person got away.
They picked up the things that they had dropped and took the
appellant to
the complainant’s house. She
identified the things that they brought and the jacket which the
appellant was wearing
and the wallet that was protruding from the
jacket pocket.
4. The appellant
testified and said that he was alone and was never at the
complainant’s house. He did not wear a jacket
and had no
wallet. He did not run away from the police and was arrested
about 600 to 700 meters away from the complainant’s
house and
was walking towards the house and not away from it.
5. The
appellant was convicted and sentenced to 20 years imprisonment for
count 1 and one year imprisonment for indecent assault.
In
sentencing the appellant the court said that there is a minimum
sentence of 15 years imprisonment which the court is obliged
to
impose in the case of a first offender convicted of robbery with
aggravating circumstances. The court said that it could
only
deviate from the prescribed minimum sentence if it was
satisfied
that there were substantial and compelling circumstances which would
justify a lesser sentence. The court
a
quo
also said that if on the other hand
it was of the opinion that the case was too serious to warrant the
imposition of a longer term
of imprisonment up to a minimum of 20
years imprisonment in the case of a first offender it could do so.
The court found
that as far as the second count was concerned there
is no minimum sentence and the normal procedure applies. The
court took
into account that the appellant was in his late twenties,
was a first offender, is married with a […] year old child,
had
a temporary work as a tiller and painter and was earning R300.00
per week. He is a family man and has not committed any offences
before and had been in custody for less than six months. It
took into account that the appellant and his co-perpetrator used
no
weapons and although the complainant had been slapped she sustained
no serious injuries and some of the goods were recovered.
The
court found that there were many aggravating factors which it would
take into account. It found that it was always serious
when
people entered the homes of other people while they were sleeping and
then commit a robbery. The fact that the appellant
and the
other person entered the complainant’s house was probable more
of a shock for her than the fact that she lost some
of her material
possessions. The court found that it was a very aggravating
factor that the complainant is an elderly lady
who was living on her
own. She was helpless against the appellant. The court relied
on
State v Nkosi
1992
(1) SACR 607
(T) where an accused was sentenced to 10 year
imprisonment which was the minimum sentence at the time where the
court had found
that the offence was a callous vicious robbery of an
elderly
helpless woman. The offender’s action were
audacious, cowardly, and arrogant as they were cruel and brutal and
no remorse
was shown. On appeal the court found that the
sentence of 10 years was justified. The court
a
quo
found that although the complainant
was not seriously injured she was slapped and sworn at for no reason
whatsoever. She was
slapped when they had asked her questions.
The court said that it was clear that the robbers not only took her
possession
but also humiliated her.
6. The
court
a quo
said
that when it looks at the totality of the factors which came out
during the evidence it was of the view that the minimum sentence
for
count 1 would not be sufficient to appropriately punish the appellant
for his misdeed. The court said that members of
the public
would demand that somebody such as the appellant should be removed
form society as long as possible. A person
such as the
appellant should be removed from society for as long as possible.
Other offenders must also realise that they
would be treated as
harshly if convicted of this type of crime. The court said that
the manner that the complainant, an elderly
lady was treated was
further cause of concern, and a further reason why it believed that
15 years imprisonment would not suffice.
It said that despite
the fact that this was not the worse possible robbery one that it
might imagine, it believed that it was serious
enough to warrant the
maximum penalty which it may impose by law. The appellant was
sentenced to 20 years for count 1 and
1 year for count 2.
7. On
appeal it was contended that the learned regional court magistrate
erred in
sentencing the appellant to an effective 21 years
when the minimum sentence applicable to robbery with aggravating
circumstances
is 15 years imprisonment. The state conceded that
the minimum sentence that the court
a quo
should have imposed was 15 years
imprisonment for count 1.
8.
Sentencing is inherently within the discretion of a trial court.
This court’s powers to interfere with the trial’s
court’s
discretion in imposing sentence are limited unless the trial court’s
discretion was exercised wrongly.
The essential enquiry in an
appeal against sentence is not whether the sentence was right or
wrong, but whether the court exercised
its discretion properly and
judicially. If the discretion was exercised improperly, this
court will interfere with the sentence
imposed. There must be
either a material misdirection by the trial court or a gross
disparity between the sentence which
the appeal court would have
imposed had it been the trial court. This Court can interfere
with a sentence of a trial court
in a case where the sentence imposed
was disturbingly inappropriate. In this regard see
S
v Salzwedel and others
1999 (2) SACR
586
AT 588 A – B. The armed robbery charge
falls within the provisions of
section 51
of the
Criminal Law
Amendment Act 105 of 1997
. The minimum prescribed sentence for
such an offence is fifteen years imprisonment unless the court found
substantial and
compelling circumstances. It is trite that when
a court considers an appropriate sentence the seriousness of the
offence,
the interest of the accused, as well as the interest of the
society ought to be taken into account.
9. The
court a quo judgment on sentencing is confusing and contradictory.
It is clear that the court
a quo
played
lip service to the mitigating factors that it found existed in this
matter. It relied on
State v Nkosi
supra which however is not
justification for imposing the sentence of 20 years. The court
found that the complainant did not
suffer any injuries and the
robbery was not the worse possible robbery. Despite this
finding the court decided to impose
20 years imprisonment. It
found that no weapons were used in the robbery.
10. It
is clear that no weapon was used during the commission of the robbery
but the complainant was threatened that if she did
no tell them where
the money was she would be killed. There was therefore a threat
to inflict grievous bodily harm which
makes the robbery an
aggravating one in terms of the definition section of the CPA.
The minimum sentence to be imposed on
robbery with aggravating
circumstances is 15 years for a first offender. The appellant
was sentenced to 20 years imprisonment.
No cogent reasons were
given by the court a quo why it deviated from the sentence of 15
years and increased it to 20 years.
In in failing to justify
this, the court
a quo
material
misdirected itself erred which allows this court to intervene on the
sentence imposed by it. The court did not take
into account the
interest of the appellant and his prospects of rehabilitation. The
factors that the appellant placed before the
court
a
quo
did not warrant the court to impose
a harsher sentence than the minimum sentence. An appropriate
sentence for count 1 is 15
years imprisonment.
11. It
is trite that a court must consider the cumulative effect of a
sentence and reduce the total of period of imprisonment so
that it is
proportionate to the total moral blameworthiness of the perpetrator.
In
S v Motswathupa
2012
(1) SACR 259
(SCA) at paragraph 8 at page 263, it was held that a
court must not lose sight of the fact that the aggregate penalty must
not
be unduly severe,when dealing with multiple offences. It is trite
that sentencing courts in all the divisions of our courts have
been
enjoined to have regard to the nature of the offences and where there
is a close connection or similarity between the offences
involved or
where there is a close connection in time and place and in intention
with regard to the offences involved, then usually
the counts are
taken as one for purpose of sentence or the sentences are ordered to
run concurrently. In the present case
there is such an
overlap. Firstly there is a conjoining as to time and place of
the offences. Secondly the indecent
assault of the complainant
flowed out of the house breaking and robbery charge.
12. In
my view the court
a quo
should have ordered that the sentence imposed on
count 2 should have run concurrently with the sentence imposed on
count 1.
It should therefore have imposed an effective sentence
of 15 years imprisonment.
13. In the result the
appeal against sentence is upheld to the extent that the sentence
imposed by the court a quo is set aside
and substituted with the
following.
13.1
‘The accused is sentenced as follows:
13.1.1 On count 1,
15 years imprisonment.
13.1.2 On count 2,
1 year imprisonment.
13.1.3 The sentence
imposed on count 2 is to run concurrently with the sentenced imposed
on count 1.
13.1.4 The
effective sentence is 15 years imprisonment.
13.1.5 The sentence
is backdated to 3 October 2006.”
___________
FRANCIS J
JUDGE OF THE HIGH COURT
I agree
________
JULY AJ
JUDGE OF THE HIGH COURT
FOR
APPELLANT
:
E A
GUARNERI
FOR
RESPONDENT
:
ADV M
RAMPYAPEDI
DATE OF
HEARING
:
17
FEBRUARY 2014
DATE OF JUDGMENT
: 18
FEBRUARY
2014