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[2019] ZAGPJHC 101
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Masondo and Another v S (A143/2018) [2019] ZAGPJHC 101 (19 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NO:
A143/2018
19
MARCH 2019
In the
matter between:
ERIC
MASONDO
First
Appellant
CHRISTOPHER
NCUBE
Second
Appellant
and
THE
STATE
Respondent
J U D G M E N T
RAMAPUPUTLA
AJ
:
[1] On 17 April 2015 the two
appellants were convicted and sentenced by the Regional Court
sitting
at Randburg with one count of robbery with aggravating circumstances
as follows: appellant 1 was sentenced to 18
(eighteen) years
direct imprisonment and appellant 2 to 16 (sixteen) years direct
imprisonment. Both the appellants were declared
unfit to possess a
firearm in terms of section 103 of Act 60 of 2000.
[2] The said robbery
occurred on 21 August 2013, at Linden, Johannesburg. The court
a
quo
found that the appellants intentionally and unlawfully robbed
the complainant, Fransa Kruger of R 500.00, a cell-phone and car keys
using a firearm. During the robbery, the complaint was assaulted with
hands and butted with the fire-arm.
[3] After they were
sentenced, the appellants applied for leave to appeal against both
conviction and sentence. The magistrate refused leave to appeal
against both conviction and sentence.
[4]
Leave to appeal was granted only
in respect of sentence on petition to the Judge President.
Therefore
the matter is before this court on appeal against sentence only.
[5] The record of the trial
proceedings that was filed in the appeal was incomplete.
The entire
judgment on sentence by the court
a quo
was missing. However,
the sentencing procedures were included in the record.
[6] The learned Magistrate
was requested to provide reasons for judgment by this court.
She did
so on 28 November 2018, pursuant to an order of this court granted on
23 November 2018. In her reasons, the learned Magistrate
stated that
she considered the following personal circumstances of the
appellants:
[6.1] the first appellant has a related
previous conviction involving violence, as well as a previous
conviction for house breaking. He was also convicted for escaping
from lawful custody. He was sentenced to two periods of imprisonments
and a fine. He is 40 (forty) years old, single and has one child. His
income is described as ‘MINIMUM’ by his legal
representative;
[6.2] the second appellant has no previous
convictions. He is 40 (forty) years old and single with two
children.
One child is cared for by the child’s unemployed mother. The
mother of the other child is employed. Before his
arrest he was in
gainful employment.
[7]
It is an established principle
that when passing sentence, the trial court must consider
the
personal circumstances of the accused, the interests of society and
the seriousness of the crime.
[1]
The court
a quo
does not seem to have balanced these three factors when sentencing
the appellants. It also does not give reasons how it arrived
at the
sentence imposed on the appellants, bearing in mind that their
charges attracted a prescribed minimum sentence. Further,
it fails to
give reasons why a sentence in excess of the prescribed minimum
sentence is an appropriate sentence to be imposed on
the appellants.
[8]
The reasons for judgment furnished by the court
a
quo
in compliance with
this court’s order of 23 November 2018 still omitted to address
the above issues. Be that as it may, I
consider the record to be
adequate for the purpose of considering the appeal. In the case of
S
v Chabedi
[2]
the
appeal court held that it does not require a perfect recordal of
everything that was said at the trial. The requirement is that
the record must be adequate for proper consideration of the appeal.
[9] The absence of reasons
for imposing a sentence in excess of the prescribed minimum
sentence
is fatal to the sentences imposed by the court
a quo.
This
court is entitled for that reason alone to depart from the sentence
imposed by the court
a quo
.
[10] It was argued on behalf of the
appellants that the fact that they spent a period of 20 months
in
custody awaiting finalization of this matter was not afforded
sufficient weight by the court
a quo
. It was further argued
that this period constitutes substantial and compelling factors
justifying a departure from the prescribed
minimum sentence. It is
further argued on behalf of the first appellant that his previous
convictions are not relevant for the
purpose of sentence as they do
not relate to the current charge. Therefore, the first
appellant should have been treated
as a first offender for the
purpose of sentence. Accordingly, counsel for the appellant submitted
that this court is at large to
interfere with the sentence imposed by
the court
a quo
.
[11] For the State it was submitted
that the appeal against the sentence in
respect of the first appellant be dismissed for the reason that he
has no respect for other people’s property. The State
further
submitted that the appeal against the sentence for the second
appellant be reduced as he is a first offender.
[12] The court
a quo
claims to
have considered the fact that the appellants were incarcerated for a
period of almost 2 (two) years while awaiting trial
but fails to
state what bearing this has on the sentence it considers an
appropriate sentence.
[13]
In the case of
S v
Radebe
[3]
it was held that the time an accused person spent in custody
while awaiting trial is only one of the factors that should
be taken
into account when determining whether the effective period of
imprisonment to be imposed is justified and whether
it is
proportionate for the crime committed. Therefore the test is
not whether on its own the period of detention while awaiting
trial
constitutes a substantial and compelling circumstance, but whether
the effective sentence proposed is proportionate to the
crime or
crimes committed and whether the sentence in all the circumstances,
including the period spent in detention prior to conviction
and
sentence, is a just one, taking into account the conditions affecting
the accused in detention and the reason for the prolonged
period of
detention.
[14] This court does not find that
there are substantial and compelling circumstances that justify
a
deviation from the prescribed minimum sentence.
[15] No reason is provided as to how
the previous conviction are related the offence the first appellant
is currently sentenced for. No reason is provided why the second
appellant was subjected to the same treatment as he has no previous
convictions. This is very inconsistent and can only lead to an
improper exercise of the discretion by the court
a quo.
Therefore, for the purpose of sentence, this court finds it
appropriate to regard both appellants as first offenders.
[16] A record of
the pre-trial proceedings in the court
a quo
reveals that
another person who was charged with the appellants was largely
responsible for the long delay in the commencement
of the trial.
Ultimately his trial was separated from the appellants’ trial.
Following the separation, the appellant’s
trial including
sentencing was concluded within a week. It is therefore appropriate
that the period the appellants spent in custody
while awaiting trial
is taken into account when sentencing the appellant. Considering that
the prescribed sentence of 15 years
is applicable, this court finds
that a sentence of 13 years and 6 months imprisonment is the
appropriate sentence to impose on
each appellant.
[17] Therefore
the appeal against sentence by the first and second appellants stands
to be upheld.
[18] In the premises, I proposed the
following order:
ORDER
1. The appeals against sentence by the
first and second appellants is upheld.
2. The sentence of 18 (eighteen) years
imprisonment imposed on the first appellant on the charge of robbery
with aggravating
circumstances is set aside and substituted with a
sentence of 13 (fifteen) years and 6 (six) months imprisonment.
3. The sentence of 16 (sixteen) years
imprisonment imposed on the second appellant on the charge of robbery
with aggravating
circumstances is set aside and substituted with a
sentence of 13 (thirteen) years and 6 (six) months imprisonment.
4. The sentences imposed in paragraph 3 and 4
above are ante-dated to the date of sentencing, being 17 April 2015.
4. The declaration against the appellant that
they are unfit to possess a firearm in terms of section 103 of Act 60
of 2000 is confirmed.
I agree and it is so
ordered.
MADAM JUSTICE L T MODIBA
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
SIGNED ON BEHALF OF
NE RAMAPUPUTLA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
APPEARENCES:
Applicant’s Counsel: E Tlake
Instructed by: Johannesburg Justice Centre
Respondent’s Counsel: SJ Khumalo
For the Director of Public Prosecutions, Johannesburg
Date application heard: 22 November 2018
Date of judgment: 19 March 2019
[1]
Zinn
v The State
1969
(2) SA 537 (A)
[2]
2005
(1) SACR 415
(SCA) F at 417.
[3]
2013
(2) SACR 165
(SCA) held at paras [13] and [14]