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
>>
2019
>>
[2019] ZAGPPHC 13
|
|
Mahlo v S (A61/2017) [2019] ZAGPPHC 13 (31 January 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
NOT REVISED
CASE NO: A61/2017
In
the matter between:
MMUSE
MAHLO
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOKOSE
J
[1]
The
appellant had been tried in the Regional Court sitting at Sebokeng of
the following charges:
(i)
Count
1 - Housebreaking with intent to commit theft;
(ii)
Count
2 - robbery with aggravating circumstances read with the provisions
of Section 51 and 53 and Schedule 2 of the
Criminal Law Amendment Act
105 of 1997
as amended by Act 38 of 2007;
(iii)
Count
3 - rape in contravention of Section 3 read with Section 1, 56(1),
57,58 , 59 , 60 and 61 of the Sexual Offences Act 32 of
2007 read
with Section 92(2), 94, 256, 257 and 281 and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
.
[2]
The appellant, who was legally
represented, was convicted and sentenced as follows :
(i)
Count 1 - three (3) years imprisonment;
(ii)
Count 2 - fifteen (15) years
imprisonment;
(iii)
Count
3 - ten (10) imprisonment. The Magistrate ordered that the sentence
in respect of Count 1 run concurrently with the other
sentences
making the appellant serve an effective twenty-five (25) years
imprisonment.
[3]
Leave
to appeal on sentence in respect of Counts 2 and 3 was granted by the
Regional Court.
[4]
The
charges arise from an incident which occurred on 20 November 2014
when the complainant, Ms M M testified that she and her two
children
were sleeping at their home when she was woken by people who invaded
her home having gained entry through the bedroom
window. She was
pointed with a firearm and robbed of several items from her tuckshop.
She was also raped by the appellant who was
wielding a firearm.
[5]
After
the complainant had given her evidence, the appellant's legal
representative opted not to challenge the complainant's version
and
indicated that the appellant wished to make formal admissions in
terms of
Sections 220
of Act 51 of 1977 pertaining to the elements of
all the charges as alleged in the charge sheet.
[6]
The
appellant appeals the sentence on the ground that the court
misdirected itself in finding that there are no substantial and
compelling circumstances to deviate from the minimum sentences. The
appellant submitted further that the effective sentence of
twenty-five (25) years is shockingly inappropriate and induces a
sense of shock.
[7]
It
is trite law that sentence is pre-eminently at the discretion of the
trial court. The court of appeal may interfere with the
sentencing
discretion of the trial court if such discretion had not been
judicially exercised. The test which has been enunciated
in numerous
cases is whether the sentence imposed by the trial court is
shockingly inappropriate or was violated by misdirection.
The trial
court considers for the purposes of sentence, the following:
(i)
The seriousness of the case;
(ii)
The personal circumstances of the
Appellant;
(iii)
The interests of society.
[8]
The
provisions of Section 51(1) of Act 105 read with Part 1 of Schedule 2
of the Criminal Law Amendment Act 51 of 1977 were explained
to the
Appellant prior to him pleading to the charges. The section states
that an offender shall be sentenced to imprisonment as
per the
minimum sentence unless there are compelling and substantial reasons
to deviate from the prescribed minimum sentence. The
specified
sentences are not to be departed from for flimsy reasons and must be
respected at all times.
S v Matyityi
2011 (1) SACR 40
(SCA) at 53 E-F
[9]
There
is no definition of what constitutes compelling and substantial
reasons. The court must consider all the facts of the case
in
determining whether compelling and substantial circumstances exist.
The overall guiding principle is that the sentence must
befit the
crime. The approach was followed by the court in the matter of
S
v Rabie
1975 (4) SA 855
at 862 G - H
where
Holmes JA said:
"Punishment should fit the
criminal as well as the crime, and be fair to society, and be blended
with a measure of mercy according
to the circumstances."
[10] In
mitigation of sentence, the Magistrate considered the following
circumstances of the appellant:
(i)
that
the appellant was a thirty-two (32) year old unmarried man with two
children aged eight (8) and five (5) years;
(ii)
the
appellant who had attended school until Grade 6 was unemployed at the
time of the commission of the crime;
(iii)
he
had been in custody for two (2) years and was a first offender.
[11]
In aggravation of sentence, the
following circumstances were considered:
(i)
the
appellant had broken into the complainant's house in violation of her
right to privacy;
(ii)
the
complainant had to endure the humiliation of having to ask her
children to go to another room to allow the appellant to rape
her out
of sight of her children;
(iii)
rape
by its nature is an invasion of the complainant’s right to
sexuality and dignity.
[12] In
argument, Counsel for the appellant argued that the court a quo
failed to take into account the
fact that the appellant had owned up
to the crimes and as such, took responsibility for the crimes he had
committed. She argues
further that this in itself prevented the
cross-examination of the complainant and showed remorse for crime
committed. She argued
that this shows that he is a person who can be
rehabilitated.
[13]
Counsel for the respondent was of the view that the court had shown
leniency in sentencing the appellant.
She brought it to the court's
attention that the appellant had been refused bail on the ground,
inter alia,
that he was a Lesotho national who was illegally
in the country. He had also been charged on other counts which had
been withdrawn
and even cautioned and discharged in respect of
another robbery charge. She argued that the court had a duty to take
a holistic
view of the charges and sentences imposed.
[14]
Poonan JA in the matter of
S v Matyityi
2011 (1) SA 40
(SCA) at
para 19
said:
"There is, moreover, a
chasm between regret and remorse. Many accused persons might well
regret their conduct but that does
not without more translate to
genuine remorse. Remorse is
a
gnawing pain of
conscience for the plight of another. Thus, genuine contrition can
only
come
from
an appreciation and acknowledgement of the extent of one's error.
Whether the offender is sincerely remorseful and not merely
feeling
sorry
for
himself at having been caught is a factual question. It
is
the surrounding
actions of the accused rather than what he
says
in court that one
should look. In order for the remorse to be a valid consideration,
the penitence must be sincere and the accused
must take the court
fully into his or her confidence. Until and unless that happens the
genuineness of the contrition alleged to
exist cannot be determined.”
[15] Given
the seriousness of the crime as well as the mitigating and
aggravating circumstances which were
taken Into consideration by the
Magistrate in the court a quo, I am of the opinion that the
Magistrate did not err in sentencing
the Appellant. There were no
substantial and compelling reasons to sentence the Appellant to a
lesser sentence than that prescribed
by the provisions of Section
51(1) of Act 105 read with Part 1 of Schedule 2 of the Criminal Law
Amendment Act 51 of 1977 nor is
there any evidence of the discretion
of the Magistrate having been incorrectly exercised.
ORDER
[17]
In the premise . the following order is made:
The
appeal against sentence is accordingly dismissed.
MOKOSE J
Judge of the High Court
of South Africa
Gauteng Division,
Pretoria
I
agree and is so ordered
MABUSE J
Judge of the High Court
of South Africa
Gauteng Division,
Pretoria
For
the Appellant:
Adv
Me Moloi instructed by
Legal Aid South Africa
Pretoria
For
the State:
Adv MM Maponya instructed by
The
Office of the Director of Public Prosecutions
Pretoria
Date
of hearing: 28 January 2019
Date
of judgement: 31 January 2019