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[2016] ZAGPJHC 74
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S v Molahi (271/2014) [2016] ZAGPJHC 74 (21 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNEBURG)
CASE NUMBER: 271/2014
DATE: 21 APRIL 2016
In the matter of
THE STATE
V
THABO MOLAHI
PERCY
...................................................................................................
ACCUSED
JUDGMENT
DOSIO AJ:
SENTENCE
[1] The accused pleaded guilty to all
four counts. Count one is the crime of robbery with aggravating
circumstances as intended
in section 1 of Act 51 of 1977 read with
the provisions of section 51(2) and schedule 2 of the Criminal law
Amendment Act 105 of
1997 as amended (“Criminal Law Amendment
Act”). Count two is the crime of murder read with the
provisions of section
51(1) and schedule 2 of the Criminal Law
Amendment Act. Count three is unlawful possession of an unlicensed
firearm, which is a
contravention of section 3 of the Firearms
Control Act 60 of 2000 (“Firearm Control Act”). Count
four is unlawful possession
of ammunition, which is a contravention
of section 90 of the Firearm Control Act.
[2] For purposes of sentence this court
has taken into consideration the accused’s personal
circumstances, the seriousness
of the offences and the interests of
the community. The court has borne in mind the main purposes of
sentence which is deterrence,
retribution, reformation and
prevention.
[3] The personal circumstances of the
accused are;
The accused is thirty-five (35) years
old and was born on the 5th of September 1980. Although he is not
married he has ten (10)
children. The children are aged 10, 8, 7,
6,6,4,3,2,and 2 respectively.
Prior to his arrest he did not have any
permanent job, but he was doing certain temporary work at the Virgin
Active Club at Maponya
Mall. The accused is suffering from an
undisclosed chronic illness.
[4] In respect to the seriousness of
the offences this court would like to state as follows:
[5] In respect to count 1
The complainants namely Daphne
Nosimanga and Mamosotho Itumeleng Morgen were threatened by the
accused brandishing a firearm. In
addition the accused fired one shot
into the air. They were female persons who were accosted and robbed
of a motor vehicle and
a blackberry cell phone. It is clear this
robbery was planned as the accused admitted that they were searching
for a motor vehicle
to rob as they had already secured a buyer. The
crime was driven by greed and not need. It was executed in an
organised manner.
[6] This country has witnessed an
ever-increasing wave of violence. Robbery with aggravating
circumstances is ever-prevalent. Innocent
and defenceless victims
continue to fall prey to these types of offences. Most people live
with the fear that sooner or later they
will become a victim of an
armed robbery.
[7] In respect to count 2
During this robbery there was
cross-fire in which one of the co-accused, namely Leslie Masoga was
killed.
[8] Murder is the most serious of
crimes. Even though it is the life of a co-accused that was lost, the
fact that it happened as
a result of a robbery is serious.
[9] In respect to count 3
The calibre of the firearm that accused
had in his possession was unknown to the State and it is clear the
accused had no licence
for the firearm.
[10] On a more frequent basis, crimes
in this country are committed using illegal firearms. In fact the
proliferation of illegal
firearms throughout the country has
contributed to the high incidents of violent crime. The frequent use
of illegal firearms in
the commission of violent offences has
contributed to the fear that members of the community live with. They
fear driving and stopping
their cars in remote places as they may
become victims of crime. The behaviour of the accused and others like
him, impacts negatively
on the quality of freedom of all living in
South Africa.
The possession of unlicensed firearms
continues and it is important that this court send a clear message to
potential offenders
that this conduct will not be tolerated by the
courts.
[11] In respect to count 4
What makes this offence serious is that
the accused was in possession of a loaded firearm which was used
during the commission of
the offence on count 1 and he was prepared
to use it if necessary.
[12] In respect to the interests of the
community, this court has taken note of the fact that the community
observes the sentences
that courts impose and the community expect
that the criminal law be enforced and that offenders be punished. The
community must
receive some recognition in the sentences the courts
impose, otherwise the community will take the law into their own
hands. If
a proper sentence is imposed it may deter others from
committing these crimes. Due to the fact that murder and armed
robbery have
reached high levels, the community craves the assistance
of the courts.
[13] The robbery on count one is one as
intended in terms of section 1 of the Criminal Procedure Act. The
provisions of the Criminal
Law Amendment Act with specific reference
to section 51 (2) dictates that notwithstanding any other law but
subject to subsection
(3) and (6), an accused who has been convicted
of a Part two of Schedule 2 offence, which includes robbery with
aggravating circumstances,
shall in the case of a first offender be
sentenced to a period of imprisonment for a period of not less than
15 years.
[14] The murder on count two was
committed whilst the accused and his co-accused committed the crime
of robbery on count 1. In addition,
there was a group of persons
acting in the execution or furtherance of a common purpose, namely to
rob. The degree and culpability
of the accused is extremely high. The
provisions of the Criminal Law Amendment Act with specific reference
to section 51 (1) dictates
that if an accused has been convicted of
an offence referred to in part 1 of schedule 2, he shall be sentenced
to life imprisonment.
[15] In respect to count three, the
firearm in accused one’s possession is unknown, there is no
evidence that the firearm
found in accused’s possession was a
semi-automatic firearm, accordingly he will be sentenced in terms of
the provisions of
the
Firearms Control Act, which
dictates that if an
accused is convicted of a contravention of
section 3
he may be
sentenced to fifteen (15) years imprisonment.
[16] In respect to count four the
Firearm Control Act dictates that if an accused is convicted of a
contravention of section 90,
he may be sentenced to fifteen (15)
years imprisonment.
[17] Section 51 (3) of the Criminal Law
Amendment Act states that if any court referred to in subsection (1)
or (2) is satisfied
that substantial and compelling circumstances
exist which justify the imposition of a lesser sentence than the
sentence prescribed
in these subsections, it shall enter those
circumstances on the record of the proceedings and must thereupon
impose such lesser
sentence.
[18] As stated by the learned Marais JA
in the case of S v Malgas
2001 (1) SACR 469
SCA, paragraph I;
“if the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.”
[19] Counsel for the accused requested
this court to take into consideration that the accused has pleaded
guilty and has shown signs
of remorse and that he is prepared to
plead guilty against his co-accused.
[20] Counsel for the accused requested
this court to consider the following as substantial and compelling
circumstances, namely;
i. That the accused will be used as a
State witness in respect to the remaining accused.
i. He is 35 years old and has been in
custody for a year and five months.
ii. He was badly injured at the scene
of the offence.
[21] The court has notwithstanding the
application of the prescribed minimum sentences, considered other
sentencing options. This
court does not find that a fine, a suspended
sentence or correctional supervision is appropriate in these
circumstances.
[22] This court cannot only consider
the accused’s personal circumstances, but must also consider
the interests of the community
as well as prevention and deterrence.
To focus on the well-being of the accused to the detriment of the
interests of the community
would result in a distorted and warped
sentence. The accused is a danger to the community.
[23] The accused has pleaded guilty and
the Counsel for the State submitted the accused will be used as a
State witness against
the remaining accused. In addition, this court
notes that the accused made a confession so he had no option but to
plead guilty.
[24] The frequency in which these
heinous crimes are committed, is reflective of the fact that
sentences imposed by courts are not
having the desired effect.
Counsel for the State argued that a term of imprisonment of fifteen
(15) years on count one is appropriate,
however that there are
substantial and compelling circumstances on count 2 which dictates
that this Court can depart from the minimum
prescribed sentence of
life imprisonment.
[25] Apart from the plea of guilty,
there is no explanation to this court what the circumstances were why
the accused participated
in attacking these two innocent members of
the public and robbed them.
[26] The fact that the accused is 34
years old. He is not a first offender. He has a previous conviction
of rape committed in 1997.
There are no substantial and compelling
circumstance to depart from the minimum prescribed sentence of 15
years imprisonment on
count 1. However, the fact that the deceased
who was killed on count 2 was a co-accused and the fact that the
accused is going
to testify against the other accused is a
substantial and compelling circumstance to depart from the prescribed
minimum sentence
of life imprisonment on count 2.
[27] In respect to count two,
irrespective of the fact that the accused did not fire the shot that
killed the deceased, the accused
still reconciled himself with the
fact that the deceased could get killed should a cross-fire arise.
[28] The accused has spent one year and
five months in prison.
[29] The cumulative effect of sentences
has been considered by this court. All these offences arise from the
single intent of robbing
the complainants on count one. Accordingly
this court will order the concurrent running of sentences as the
offences are inextricably
linked in terms of locality and time.
[30] In the result the following order
is made:
Count 1
Accused is sentenced to fifteen (15)
years imprisonment
Count 2
Accused one is sentenced to fifteen
(15) years imprisonment
Count 3
Accused is sentenced to eight (8) years
imprisonment
Count 4
Accused is sentenced to four (4) years
imprisonment
[31] In terms of section 280(2) of the
Criminal Procedure Act, the court orders that the sentence of fifteen
(15) years imprisonment
imposed on count two (2) , the eight (8)
years imprisonment imposed on count three (3) and the four (4) years
imprisonment imposed
on count four (4) will all run concurrently with
the sentence of fifteen (15) years imprisonment imposed on count one
(1).
[32] In terms of
section 103
(1) (g) of
the
Firearms Control Act the
accused is declared unfit to possess a
firearm.
D DOSIO
ACTING JUDGE OF THE HIGH COURT
Appearances:
On behalf of the State Adv Maharaj
On behalf of the Accused Adv
Buthelezi
Date Heard: 21 April 2016
Handed down Sentence: 21 April
2016