About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2011
>>
[2011] ZAGPPHC 156
|
|
Leeto and Others v S (A35/2011) [2011] ZAGPPHC 156 (17 May 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NUMBER: A35/2011
Appeal Date: 17 May 2011
In
the matter between:
MODUPE
LEETO
.................................................................................................
First Appellant
SIBUSISO
BUTHELEZI
..................................................................................
Second Appellant
MOEKETSI
FONYA
............................................................................................
Third Appellant
THABO
PHOHU
...............................................................................................
Fourth Appellant
and
THE
STATE
.............................................................................................................
Respondent
JUDGMENT
GOODEY
AJ:
[1]
INTRODUCTION:
(1.1)
This is an appeal against sentence only.
(1.2)
Leave to appeal was refused by the Court a quo.
(1.3) On petition to the
High Court leave to appeal against sentence only was granted.
(1.4) The Appellants were
legally represented during the proceedings in the Court a quo.
(1.5) The Four Appellants
appeared in the Regional Court, Springs on a charge of robbery with
aggravating circumstances as intended
in section 1 of Act 51 of 1977,
read with the provision of section 51 of the Criminal Law Amendment
Act, 105 of 1977 as amended
by Act 38 of 2007.
(1.6) The Learned
Magistrate did not find substantial and compelling circumstances
which may have compelled the trial Court to deviate
from imposing the
prescribed minimum sentence and sentenced each of the Appellants to
fifteen years' imprisonment.
[2] ARGUMENT ON BEHALF OF
THE APPELLANTS:
(2.1) The gist in this
regard follows hereinafter.
(2.2) Paragraph 7 of the
Appellants' heads inter alia read as follows:
-
Finding that there were no substantial and compelling
circumstances.
-
Finding that the period spent in custody awaiting trial as
well as being first offenders 'does not warrant a sentence more than
more than (sic) the minimum prescribed, despite the fact that the
judgments of S v Vilikazi and Others
2000 (1) SACR 140
(W), S v May
2005 (2) SACR 331
(SCA) and S v Brophy and Another
2007 (2) SACR 56
(W) were all reported when this matter was tried.
-
Dismissing the submission that the complainant was not injured
by entertaining a speculative question with a multitude of possible
answers that are not supported by the facts on record (despite
referring to S v Vermeulen).
- Dismissing the
cumulative weight of the submissions (i) on the value involved, (ii)
the fact that some items were recovered, (Hi)
the relative
youthfulness of the appellants and that (iv) they are first
offenders.
Seemingly referring to
rehabilitation only as part of the purpose of punishment as the
reasons for sentence and the sentence does
not refer to, indicate or
reflect that the rehabilitation of the appellants were seriously
considered."
(2.3)
The Appellants also point to the following:
2.3.1 The period spent in
custody (8 months) awaiting trial was not considered by the trial
Court.
2.3.2 The personal
circumstances of the Appellants were not properly considered,
especially the needs and rights of the minor children
of the Second
and Fourth Appellants.
[3]
ARGUMENT ON BEHALF OF THE RESPONDENT:
In essence the argument
boils down to the following:
(3.1)
The Appellants have been convicted of a very serious offence which is
on the increase on a daily basis;
(3.2)
There is little respect of one' being; and
(3.3)
The complainant in casu was running his small business for living and
providing services for the legal community;
(3.4)
The Appellants motivated by greed;
(3.5)
The "stock" was valued at between R8 000,00 and R10 000,00;
(3.6)
Only a fraction of the stolen items were recovered by the
complainant;
(3.7)
No substantial and compelling circumstances exist.
[4]
CONCLUSION:
(4.1) It is trite law
that a Court of appeal will not likely interfere with the sentence of
a trial Court unless there was a miscarriage
of justice or the
sentence is shockingly inappropriate.
(4.2) The Appellants were
found guilty of an offence which falls squarely within the provisions
of section 51(2) of Act 105 of 1997
which prescribes a minimum
sentence of 15 years imprisonment for first offenders, save where the
Court finds that there are substantial
and compelling circumstances
justifying the imposition of a lesser sentence than the prescribed
minimum sentence.
(4.3) The circumstances
(age of the accused, families of accused no 2 and no 4 etc) are
circumstances which can and should be considered
as being
"substantial and compelling". The same goes for time spend
in custody awaiting trial.
(4.4) Having carefully
studied the heads of argument, the record of the proceedings and the
judgment of the Magistrate and his reasons
for judgment I am of the
opinion that considering all factors that there is room for
interference with the sentence.
(4.5) In the result I
suggest that the following order should be made:
"1. The appeal
(sentence only) is upheld;
2. The sentence of 15
years imprisonment imposed by the magistrate (per accused) is
substituted with 10 years imprisonment. "
Antidated to the 18
August 2011”.
MNGQIBISA-THUSI
J
Date
of hearing:17 May 2011
Date
of Judgment:17 May 2011
On
behalf of the Applicant:
JAN VAN ROOYEN: ATTORNEY
PRETORIA JUSTICE CENTRE
2
nd
Floor FNB
Building 262 CHURCH STREET
PRETORIA
Ref: J van Rooyen -
073/11
Tel:
(012)401 9200/0824691229
On
behalf of the Respondent
THE DIRECTOR OF PUBLIC
PROSECUTIONS
PRIVATE
BAG X300 PRETORIA
0001
REF
NO. 4/2011 (17/5KMM)