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[2016] ZAGPJHC 225
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Mohale and Another v S (A55/2016) [2016] ZAGPJHC 225 (19 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(Gauteng
Local Division held at Johannesburg)
Case
no: A55/2016
DATE:
19 AUGUST 2016
In
the matter between:
MOHALE,
KAPA
.........................................................................................................
1st
APPELLANT
KHUMALO,
VINCENT
.............................................................................................
2nd
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Mlaba
AJ:
[1]
This is an appeal against sentence only. On 25 March 2014 the
appellants were each sentenced to 18 years’ imprisonment
subsequent to a conviction of Robbery with aggravating circumstances
read with the provisions of section 51(2) of the Criminal
Law
Amendment Act 105 of 1997 (“The Act”) as referred to in
Part II of Schedule 2.
[2]
Leave to appeal against both conviction and sentence in terms of
section 309B of the Criminal Procedure Act 51 0f 1977(CPA)
was
refused in the court a quo.
[3]
Petition to the Gauteng Local Division was successful only in respect
of sentence but not on conviction.
[4]
The appellants now appeal against the sentence.
[6]
The facts upon which a conviction is premised are briefly as follows:
on the 19
th
January 2011 at approximately 18h00, the
complainant was in the company of his girlfriend. They were leisurely
seated on a bench
at the Gillollys Farm in Bedfordview, watching the
sunset. Suddenly they were accosted by four unknown men. These men
approached
them from behind. One of them asked for cigarette. Whilst
the complainant was trying to reach out for his cigarette box, two of
the unknown men grabbed his girlfriend as one held the complainant.
The fourth one stood guard threatening them with the firearm
was
tucked at his waist. The complainant and his girlfriend were then
robbed of their personal belongings,
to wit,
jewellery,
cellphones, cap and a wallet. The value of the goods is estimated at
R25 000,00.
[7]
The imposition of sentence is a matter falling pre-eminently within
the discretion of the sentencing court. As Bosielo JA observed
in
S
v PB
2013 (2) SACR 533
(SCA) it is therefore expected of the
sentencing court to exercise its discretion. judicially and in line
with established and
valid principles governing sentencing.
[8]
The court of appeal will not interfere with the sentence unless it
finds that the sentence is exceedingly harsh/lenient, there
was a
misdirection on the part of the trial court or the discretion was not
exercised judicially:-
S v Fhetani
2007 (2) SACR 590
(SCA) at
[5];
S v Mothibe
1977(3) SA 823 (A) at 830D.
[9]
In
S v Malgas
2001 (1) SACR 469
(SCA) at 478d-e Marais JA
observed that a court of appeal will not, “in the absence of a
material misdirection by the trial
court, approach the question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply
because it prefers it. To do
so would be to usurp the powers of the trial court”.
[10]
In imposing the sentence, the court a quo did not find the existence
of substantial and compelling circumstances as envisaged
in s51(3) of
the Act, justifying the imposition of a lesser sentence than
prescribed. It instead increased the sentence from
the minimum
sentence of 15 years’ to 18 years’ imprisonment.
[11]
It was contended on behalf of the appellants that the sentence is
disturbingly inappropriate and too harsh; that the court
overemphasized the seriousness of the offence and did attach due
weight to the personal circumstances of the appellants. Further,
that
the court below imposed eighteen years’ imprisonment but failed
to give reasons or to specify the aggravating circumstances
that
justify the imposition thereof. Counsel relis on the decision of
S
v Mathebula and
Another
2012 (1) SACR 374
(SCA) paragraphs
11-12.
[12]
The relevant part of section 51 of the Act reads as follows:
“Notwithstanding any other law but subject to subsection
(3)
and (6), a regional court or a High Court shall sentence a person who
has been convicted of an offence referred to in-
(a)
Part II of Schedule 2, in the case of-
(i)
A first offender, to imprisonment for a period of not less than 15
years;
(ii)
A second offender of any such offence, to imprisonment for a period
not less than 20 years; and
(iii)
A third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years.
A
proviso to s 51(2) of the Act reads:
“
Provided
that the maximum sentence a regional court may impose in terms of
this subsection shall not be more than five years longer
than the
minimum sentence that it may impose.”
[13]
In
S v Mathebula
above
,
it
was held that “A regional magistrate has the discretion to
impose a sentence exceeding the minimum sentence prescribed
by the
Act with an additional 5 years as provided for in the proviso to s
51(2). Such a discretion must however be exercised judicially
and on
reasonable grounds.
Where
a regional magistrate intends to depart from the prescribed minimum
sentence, it is proper and fair that the regional magistrate
gives
reasons for such a departure.”
[14]
The Mathebula case
was
applied in
Shubane v The State
(073/14)
[2014]
ZASCA 148
(26 September 2014) in which it was contended on behalf of
the appellants that the Regional Court had misdirected itself by
imposing
the sentence in excess of the minimum sentence prescribed,
without furnishing any reasons. The Supreme Court of Appeal as per
Majiedt
JA was of the view that, if correct, that would justify a
conclusion that the sentence was arrived at arbitrarily and may very
well result in interference on appeal. The court however found that
this was devoid of the truth as the court had given full reasons
for
increasing the sentence.
See also: S v Maake
2011 (1) 263
(SCA) at para28
[15]
In
casu the violence cannot be said to have been as excessive
as in the Shubane matter. This I find, without underestimating the
trauma
that complainant and his girlfriend went through. No reasons
were furnished for the increased sentence. It is pertinently clear
that the appellants were incarcerated for more than 3 years awaiting
trial and sentence. This was not accorded due weight by the
court a
quo
.
:-S v Brophy and Another
2007 (2) SACR 56
(W)
,
Radebe v S
(726/12)
[2013] ZASCA 31
(27 March 2013 and
S
v Dlamini
2012 (2) SACR 1
(SCA). Each
matter should be treated on its own merits.
[16]
In my opinion the imposition of sentence in excess of the minimum
sentence prescribed was unwarranted and it is inescapable
to conclude
that it was arbitrary. This Court is therefore at large to interfere.
[17]
The trial court further misdirected itself in finding that
there are no substantial and compelling circumstances justifying
the
imposition of a lesser sentence considering the age, and in
particular of the1st applicant) who was 22 years old at the time
of
the commission of the offence. He has a chance for rehabilitation..
The
Appellants had already spent three and half years in custody awaiting
trial.
The
victims were not subjected to gratuitous violence. Neither the
complainant nor his girlfriend suffered any physical injuries.
These
factors cumulatively constitute factors of substance.
[18]
In the result I propose the following order:
18.1
The appeal against sentence is upheld
18.2
The sentence is set aside and substituted with the following:
“
Each
of the accused is sentenced to 12 years imprisonment.
IS
MLABA
ACTING
JUDGE OF THE HIGH COURT
I
concur, and it is so ordered.
ML
MAILULA
JUDGE
OF THE HIGH COURT
APPEARANCES:
FOR
THE APPELLANT:
M MZAMANE
FOR
THE RESPONDENT:
VH MONGWANE
Heard:
11 August 2016
Delivered:
19 August 2016
Date:
19 August 2016