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[2010] ZAGPPHC 214
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Mthembu and Others v S (A609/2010) [2010] ZAGPPHC 214 (2 December 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
Case
No: A609/2010
Heard
on 25/11/2010
Delivered
on 02/12/2010
In
the matter between
Sibusiso
Mthembu
...........................................................................................
1
st
Appellant
Sibusiso
Ngwenya
..........................................................................................
2
nd
Appellant
Abel
Sibusiso
Nkosi
........................................................................................
3
rd
Appellant
And
The
State
…...................................................................................................
Respondent
CORAM
W THLAPI et B PAKATI AJ
JUDGMENT
PAKATI
AJ
I.
The
appellants, Sibusiso Mthembu, Sibusiso Ngwenya and Abel Sibusiso
Nkosi, were charged in the Regional court, Nigel, with two counts
of
robbery with aggravating circumstances, one count of possession of an
unlicensed firearm and illegal possession of one live
round of
ammunition. They pleaded not guilty to all the charges. They were
found guilty of robbery with aggravating circumstances
on count 1. On
count two they were found not guilty and discharged. They were all
convicted of the illegal possession of a firearm.
The 2
nd
appellant was convicted of illegal possession of one live round of
ammunition in count 4. The 1
st
and
3
rd
appellants
were found not guilty and discharged in respect of count 4. Counts 1
and
3
were
taken together for purposes of sentence in respect of appellants
1
and
3.
In
respect of the 1
st
appellant the trial court took counts 1,
3
and
4 together for purposes of sentence. They were each sentenced to
fifteen (15) years imprisonment and were declared unfit to
possess a
firearm.
2.
The
magistrate refused leave to appeal against their convictions and
sentences but, court granted leave to appeal it only against
sentence
only.
3.
In
sentencing the appellants the magistrate took into account the nature
of the offence, the appellant's personal circumstances
and the
interests of society. He also took into account the purpose of
punishment namely, prevention, deterrent, retribution and
rehabilitation. He considered the fact that the appellants were first
offenders but that does not mean that they cannot be given
a
custodial sentence.
4.
A
brief synopsis of the case against the appellants is that on 14
October 2006 around 20h00 at Bluegum, Duduza, the complainant,
Nomvula Rosleen Similane, was alighting from a taxi proceeding home
in the company of her friend, Rosina Ramasela Lekgodi, when
they were
robbed by the three appellants. She only managed to identify
appellants 1 and two. When they crossed the street they
demanded her
handbag and her phone. She handed over her phone to 1
st
appellant and the bag to the 2
nd
appellant. At that stage the 2
nd
appellant pointed a firearm at her. From the bag the 2
nd
appellant took a sum of R260 (two hundred and sixty rand) and threw
her cards on the ground. According to Rosina the three appellants
appeared and followed them. The 2
nd
appellant took out a firearm and demanded the cell phone from her and
also demanded Nomvula's handbag which was handed over to
him. When
she screamed the 1
st
appellant hit her from behind and told her to not to look at him.
5.
The
1
st
appellant ordered the 2
nd
appellant to shoot them because they were known to them but they
fortunately left
them
unharmed. When the incident took place visibility was good. The
high-mast light was on.
6.
The
next day Rosina, Nomvula and Tebo Goligodi, the brother to Rosina,
proceeded to where the appellants stay. Goligodi demanded
the return
of cell phones and the money from the appellants. The appellants told
them that they should return later as the phones
were not with them.
When they returned later they found the
2
nd
appellant
who handed the phones over to them. Nomvula's phone did not have a
sim card but Rosina's was still in order.
7.
Rosina
knew the first appellant. She also knew where he stayed which is not
far from her home. She regarded him as a brother. She
did not know
the other appellants before the incident.
8.
The
Magistrate stressed that robbery with aggravating circumstances is a
serious offence and for that reason the legislature has
prescribed
minimum sentences. He indicated that the court has a duty to protect
the members of the community against gangs who
waylay law-abiding
citizens when they alight from taxis and rob them of their property.
He was satisfied that there were no substantial
and compelling
circumstances in their personal circumstances.
9.
In
S
v KIBIDO
1998 (2) SACR 213
(SCA)
at
216G-J Olivier JA held:
'Now,
it is trite law that the determination of a sentence in a criminal
matter is pre-eminently a matter for the discretion of
the trial
court. In the exercise of this function the trial court has a wide
discretion in (a) deciding which factors should be
allowed to
influence the court in determining the measure of punishment and (b)
in determining the value to attach to each factor
taken into account
(see S v Fazzie and Others
1964 (4) SA 673
(A) at 684A - B; S v
Pillay
1977 (4) SA 531
(A) at 535A - B). A failure to take certain
factors into account or an improper determination of the value of
such factors amounts
to a misdirection, but only when the dictates of
justice carry clear conviction that an error has been committed in
this regard
(S v Fazzie and Others (supra) at 684B - C; S v Pillay
(supra) at 535E).
Furthermore,
a mere misdirection is not by itself sufficient to entitle a court of
appeal to interfere with the sentence; it must
be of such a nature,
degree, or seriousness that it shows, directly or inferentially, that
the
court did not exercise its discretion at all or exercised it
improperly or unreasonably (see Trollip J A in S v Pillay (supra)
at
535E - G)."
10.
Mr
Van Vuuren for appellant 1 placed on record his personal
circumstances as follows:
10.1
That
he was 35 years old, unmarried and had two
minor
children aged five (5) and eighteen (18) respectively;
10.1.1
That before his arrest he was a contract worker and earned R1500-00
(one thousand five hundred rand) per month;
10.2
That
he is a first offender.
11.
Mr
Van der Merwe for 2
nd
appellant indicated that the appellant is 25 years old, unmarried and
has no children. He was unemployed at the time of his arrest.
He also
pointed out that he is a first offender. He requested the court to
find that there existed substantial and compelling circumstances.
12.
Mr
du Plessis for the 3
rd
appellant stated that the appellant was 28 years old, unmarried and
had three children aged eight (8), six (6) and five (5) respectively.
The children live with their mother. The appellant was working at the
time of his arrest and was earning R270-00 (two hundred and
seventy
rand) per week. He also asked the court to find that there were
substantial and compelling circumstances present. All the
appellants
spent about two years in custody awaiting trial In
S
v BROPHY AND ANOTHER
2007 (2) SACR 56
(W)
at
58 -59 para 15 Schwartzman J held:
'More
importantly,
and what the Court a quo overlooked entirely, was the period of time
spent by both accused awaiting trial and sentence.
Counsel for the
accused and the State agreed that this was a factor that should have
been taken into account by the trial Court.
That this factor was
overlooked entitles this Court to interfere with the sentence and
impose what it considers to be a proper
sentence"
13.
In the present case it is clear that the trial court overlooked the
period spent in custody by the appellants awaiting trial.
This is a
factor that should have been taken into account. It should also be
noted that the evidence shows that the two cell phones
were recovered
even though one of them did not have its sim card anymore. Another
factor that had to be taken account by the trial
Court was that the
value of the money taken from Nomvula was not particularly huge
(R260-00).
14.
The
trial court misdirected itself in not finding that there existed
substantial and compelling circumstances constituted by an
aggregate
of all the factors considered cumulatively.
15.
In
the circumstances I propose to make the following order:
1
.
The appeal against sentence is upheld.
2.
Counts 1 and 3 are taken together for purposes of sentence in respect
of appellants 1 and 3.
3.
Counts 1,3 and
4
are
taken together for purposes of sentence in respect of 2
nd
appellant.
4.
the
sentence of flfteen( 15) years is set aside and is replaced with a
sentence of eight(8) years imprisonment each antedated to
25/08/08.
B
M PAKATI
ACTING
JUDGE
NORTH
GAUTENG DIVISION
VV
TLHAPI
JUDGE
OF THE HIGH COURT
NORTH
GAUTENG DIVISION
On
behalf of the Appellant
:
Adv P.M Mositsa
Instructed
by
:
Legal Aid Centre
On
behalf of the state
:
Adv L Simpson
Instructed
by
:
Director of Public Prosecutions