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[2010] ZAGPPHC 102
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Nkomo v S (A1121/2009) [2010] ZAGPPHC 102 (2 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
GAUTENG DIVISION)
CASE
NO: A1121/2009
Appeal
Date: 30 August 2010
DATE:
02/09/2010
In
the matter between: -
THEMBA
NKOMO
APPELLANT
and
THE
STATE
RESPONDEN
CORAM:
MAVUNDLA J et EBERSOHN AJ
DATE
HEARD: 30/9/2010
DATE
JUDGMENT HANDED DOWN: 2/9/2010
JUDGMENT
ON APPEAL
EBERSOHN
AJ.
[1]
The appellant is the second of two accused who were charged in the
Regional Court held in Springs, as follows:
Count
1: attempted robbery (of a motor vehicle) with aggravating
circumstances,
Count
2: attempted murder,
Count
3: possession of an unlicensed firearm, and
Count
4: unlawful possession of ammunition;
[2]
The appellant was arrested on 17 July 2004 and remained in custody
awaiting trial, up to being sentenced on 28 February 2005.
[3]
Leave to appeal was granted with regard to sentence only.
[4]
On 28 February 2005 the appellant was found guilty on the attempted
robbery count (count 1) and was acquitted on the remaining
three
counts. The appellant was sentenced on 28 February 2005 to 15 years'
imprisonment. The learned magistrate did not find "substantial
and compelling circumstances" to exist with respect to count 1
and, being under the mistaken impression that a minimum sentence
was
prescribed, imposed what the magistrate thought the minimum sentence
was, namely 15 years imprisonment as if the appellant
had been found
guilty of robbery with aggravating circumstances.
[5]
The application for leave to appeal against the conviction and the
sentence was dismissed by the magistrate. This appeal is
brought
against the sentence after leave to appeal against the sentence only
was granted on petition by this Court.
[6]
It seems that the records kept by the Department of Correctional
Services is incorrect as it reflects that the appellant was
convicted
on all four counts, and if so, must be amended to reflect the correct
facts. The appellant was accused 2 in the trial
before the magistrate
and page 86 of the judgment, lines 1 and 2, read as follows:
"Accused
2 is found GUILTY on count 1 and ACQUITTED on counts 2, 3 and 4."
[9]
It was clearly a misdirection, because: (a) there is no prescribed
minimum sentence for attempted robbery with aggravating
circumstances; (b) the appellant was neither charged with, nor
convicted of robbery with aggravating circumstances; (c) the trial
court seemingly sentenced the two accused to virtually the same
effective sentence despite the fact that the appellant's co-accused
was further convicted of attempted murder and the unlawful possession
of a
firearm
and
ammunition.
[10]
It is clear that this Court accordingly may interfere with the
sentence imposed on the appellant.
[11]
The traditional mitigating aspects constitute reasons justifying this
Court to impose a substantially lesser sentence than
the imposed
sentence.. See in this regard
S
v
Ndlovu
2007
(1) SACR 535
(SCA) par (13) at 538 Q-i
[12]
Despite the accused being shot at and the appellant's co-accused
being wounded, no one. including the complainant, Mr Tocher,
was
injured or killed. 1 he violence involved was limited to the bare
minimum and was directed solely at attaining the goal of
robbery, and
not at injuring any one. Mr Tocher clearly testified that he was not
injured or attacked, but forced to the ground
in such a manner that
he did not sustain any injury. He also stated that the assailants
warned the approaching rescuers to not
interfere. It is clear that
they were not trigger happy or prone to wanton violence as instant
retaliation without prior warning
is to be expected in such
circumstances. This incident did not erupt in an orgy of violence,
despite the appellant's co-accused
being armed.
[12]
The facts on appeal certainly cannot be deemed as one of the most
serious failed robbery attempts considered on appeal Both
the
appellant and his armed co-accused refrained from taking a life or
causing injuries. It is trite that a fair number of robberies
devolve
into brutal violence and senseless murders, especially in
circumstances where a robbery in progress is, subjectively viewed,
resisted, and frustrated, as were the facts in this matter. The
vehicle was not damaged and shock aside, the complainant did not
suffer damage and harm.
[13]
The appellant is a reasonably young. 21 year old single first
offender without any dependents, self employed and he earned
approximately R800-00 per week. He attained standard 9 at school. He
ought to be considered an excellent candidate for rehabilitation,
especially in the absence of any evidence to the contrary. The extent
and nature of the violence applied at the scene as well as
the
finding that the appellant did not associate himself with the actions
of his gun toting co-accused, support this finding. The
term of 15
years will not facilitate rehabilitation: it will probably break the
appellant as it leaves little room for incentives
to rehabilitate.
The item they attempted to take was not lost, taken or damaged, no
one was injured except one of the assailants,
and the complainant did
not suffer any loss. The appellant was arrested close to the scene
and there is no evidence of financial
loss or damage to property.
[14]
The guidance provided by the principle of proportionality between the
nature of the offence and the deserts of the offender
was re-affirmed
by the Supreme Court of Appeal in
S
v
Vilakazi
2009
{1) SACR 522 (SCA) at paras [13)-[19J at 559e-562d. In that matter
the appellant's sentence was commuted to fifteen years from
life
imprisonment.
[15]
This Court therefore must set the 15 year sentence aside and replace
it with an appropriate sentence, having regard to the
cumulative
effect of the factors constituting mitigating, suitably balanced
against the crime and the interests of society.
[16]
The appellant was arrested on 17 July 2004 and remained in custody
for the duration of the trial representing a period of 7,5
months. He
started serving his sentence on 28 February 2005. The record does not
reflect that the period spent in custody awaiting
trial was
considered although it was placed on record and seemingly referred to
by the trial court. The reasons for sentence do
not reflect that this
period was considered, nor is it reflected by the sentence imposed.
This omission also constitutes a material
misdirection, warranting
this Court's interference on appeal.
S
v
Vilikazi and Others
2000
(1) SACR 140
(W)
S
v
May
2005
(2) SACR 331
(SCA)
S
v
Brophy
and Another
2007
(2)
SACR
56
(W)
See:
Record
P
90
line 20, 21
[17]
Mr. van Rooyen. who appeared for the appellant submitted that a
suitable sentence would be a period of imprisonment of 8 years
and
Mr. Mashile. who appeared for the State, very correctly conceded that
the sentence imposed was incorrect and submitted a period
of
imprisonment between 8 and 10 years.
[18]
Having studied the record and having considered the arguments of both
counsel I am of the opinion that the following order
should be made:
1.
The conviction of the appellant on the count of attempted robbery is
confirmed.
2.
The sentence imposed by the magistrate is set aside and is
substituted with the following sentence:
"Eight
(8) years imprisonment antedated to the 28
th
February 2005, being the date on which he was originally sentenced.
The appellants disqualification to obtain a firearm licence
is
affirmed."
3.
In so far as any official records may exist which reads that the
appellant was convicted on counts 2, 3 and 4 . also, by the
magistrate are to be corrected forthwith."
4.
The Registrar of this Court is requested to inform the Prison
Authorities immediately of the outcome of this appeal.
P.Z.
EBERSOHN
ACTING
JUDGE OF THE HIGH COURT
I
AGREE AND IT IS ACCORDINGLY ORDERED.
N.M.
MAVUNBLA
JUDGE
OF THE HIGH COURT
Counsel
for the State Adv. MASHILE
Appellant's
counsel Mr. J. VAN ROOYEN