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[2017] ZASCA 104
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Mogoba v S (01219/16) [2017] ZASCA 104 (6 September 2017)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 01219/16
In
the matter between:
TOVEY
HLOGI JEROME MOGOBA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mogoba
v
The
State
(
01219/2016
)
[2017] ZASCA 104
(06 September 2017)
Coram:
Shongwe
AP, Seriti JA
and
Mokgohloa AJA
Heard:
16
August
2017
Delivered:
6
September 2017
Summary:
Criminal
Procedure - Appeal against sentence - whether substantial and
compelling circumstances exist to justify deviation from
prescribed
life sentence - whether misdirection by trial court and full court -
no misdirection found - appeal dismissed.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Ranchord J, Polson and Msimanga
AJJ sitting as Court of Appeal):
The
appeal is dismissed.
JUDGMENT
Mokgohloa
AJA (Shongwe AP and Seriti JA concurring):
[1]
The appellant, Mr THJ Mogoba was convicted by the
Limpopo
Local Division of the High Court
(for
the Northern Circuit District, Polokwane) on two counts of murder,
one count of robbery with aggravating circumstances, and
one count of
unlawful possession of a firearm and ammunition. The appellant was
sentenced to life imprisonment on each of the two
counts of murder,
15 years’ imprisonment on the count of robbery with aggravating
circumstances, three years’ imprisonment
on the count of
unlawful possession of a firearm, and one year imprisonment on the
count of unlawful possession of ammunition.
The trial court ordered
that the sentences in respect of the other counts run concurrently
with the life sentences.
[2]
Subsequent to the sentence, the appellant applied for leave to appeal
and leave was granted to the full court of the Gauteng
Division of
the High Court, Pretoria against his sentence only. The full court
dismissed the appeal. However this court granted
appellant special
leave to appeal to this court on 31 August 2016 against sentence
only.
[3]
It is pertinent at this juncture to note that the appellant was
initially charged and convicted along with two co-accused. The
sentence of one of the co-accused was reduced by this court on 1
December 2015.
[4]
The issue in this appeal is whether the trial court erred in its
conclusion that there existed no substantial and compelling
circumstances that justified the deviation from the prescribed
sentence of life imprisonment in respect of the conviction on both
counts of murder.
[5]
Before
turning to consider whether the sentence imposed on the appellant was
appropriate, a brief consideration of the background
facts is
necessary. On 14 January 2005 the appellant, together with his
accomplices, proceeded to Ga–Raoleka Supermarket,
Lebowakgomo,
in the district of Thabamoopo to commit a robbery.
The
group met at one of the co-accused’s home to plan the robbery
and the appellant provided the group with two firearms which
were
kept in a red bag. The appellant then entered the shop under the
pretext of buying Grandpa headache medication.
Mr
Aslam Mohammad and Mr Foster Mashimbye were shot during the robbery
and died at the scene. During the robbery an undisclosed
amount of
cash was stolen.
[6]
Sentencing rests pre–eminently in the discretion of the trial
court. A court of appeal hearing argument on sentence should
always
guard against eroding the trial court’s discretion and should
only interfere when the discretion was not exercised
judicially and
properly.
[1]
In determining the
sentence the trial court took a number of factors into account: the
appellant was the eldest of the co-accused
and matured at the time of
the commission of
the
crime; the appellant produced the firearms; the appellant made false
pretenses to commit the crime.
[7]
In refusing leave to appeal against sentence, the full court said
that:
‘
In
my view he was fully aware of the fact that weapons and the
possibility that weapons could be used either to persuade people
into
submission to depart with their assets or in some form of defence or
offence and he reconciled himself with that possibility
in the
planning and his attendance at the time.
…
This
Court has not been persuaded that circumstances exist which allow
this Court to interfere or to deviate from the judgment given
by the
Court a quo’.
[8]
The appellant’s conviction made him liable for punishment under
s
51 (1) of the Criminal Law Amendment Act read with Part 1 of Schedule
2.
[2]
In relation to his
conviction for murder, which was committed during the robbery the
court is obliged to impose a sentence of life
imprisonment unless
there exist substantial and compelling circumstances that justify a
deviation from the prescribed sentence.
[3]
[9]
Counsel for the appellant submitted that the full court misdirected
itself in confirming the trial court’s finding that
there
existed no substantial and compelling circumstances that justified
the deviation from the prescribed sentence. It was submitted
that the
appellant’s age, the fact that he lost his father when he was
16 years old, the role that he played during the commission
of the
offences and the fact that he spent two and a half years in custody
before he was sentenced, taken cumulatively, constitute
substantial
and compelling circumstances.
[10]
It is clear from the evidence that the appellant was 24 years and
some 8 months old at that time, having been born on September
1980.
He was the eldest in the group. He played an active role during the
planning and execution of the robbery. The group met
at one of the
accused’s home to plan the robbery. The appellant provided them
with two firearms which were kept in a red
bag. He was the one who
entered the shop under the pretext of buying Grandpa headache
medication. He was the one who took the money
and put it in the red
bag before he could hand it over to one of the group members.
[11]
The trial court took all relevant factors into consideration and
found, correctly so in my view, that there exist no substantial
and
compelling circumstances justifying deviation from the prescribed
sentence. I can find no misdirection by the trial court or
the full
court that warrants interference by this court. Therefore this appeal
cannot succeed. Accordingly the following
order is made. The
appeal is dismissed.
__________________
FE
MOKGOHLOA
ACTING
JUDGE OF APPEAL
APPEARANCES
:
For
Appellant: LM Manzini
Instructed
by: Justice Centre,
Polokwane
Justice Centre,
Bloemfontein
For
Respondent: No Appearance
[1]
S v Barnard
2004 (1) SACR 191
(SCA);
S v Kgosimore
1999 (2) SACR 238
(SCA) para 10.
S v Giannoulis
1975 (4) SA 867
(A) at 868G-H.
[2]
105 of 1997.
[3]
S v Malgas
2001
(2) SA 1222
(SCA) para 12.