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[2019] ZAFSHC 32
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Mogoje and Others v S (A109/2017) [2019] ZAFSHC 32 (12 February 2019)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case Nr: A109/2017
In
the appeal of:
MOGOJE JOHANNES
MOGOJE 1ST
APPLICANT
LESOLE ELIAS
MALETE 2ND
APPLICANT
DAVID
MOGOTSI 3RD
APPLICANT
PHENTANI
JOEL
MBAMBO 4TH
APPLICANT
and
THE
STATE RESPONDENT
CORAM:
MUSI, AJP
et
VAN
SCHALKWYK, AJ
JUDGMENT
BY:
VAN
SCHALKWYK, AJ
HEARD
ON
;
14 AUGUST 2017
DELIVERED
ON:
12
FEBRUARY 2018
[1] The Appellants
were convicted of two counts of robbery with aggravating
circumstances in the Regional Court on the 14th of November
2014.
The appellants were each sentenced to eight year imprisonment in
respect of accused numbers one and six, and ten and
twelve years
respectively in respect of accused number two and four. The Regional
Magistrate found their individual involvement
in the crime and their
subsequent previous convictions to be the ratio for the remarkable
difference in sentence. An application
for leave to appeal was
refused by the Regional Magistrate. The petition for Leave to Appeal
against the respective sentences,
imposed was granted by this Court,
on the 01st of February 2017.
[2] Although the
seriousness of the offences justify the imposition of at least the
minimum sentence, the Regional Magistrate found
that the offences
were not coupled with unnecessary violence. Firearms were
exposed at the scene of the offences but were
not utilized.
This single factor the Court has taken into account in consideration
to deviate from the prescribed minimum
sentence.
Although there is hardly any
difference in the personal circumstances of the accused, there is a
remarkable difference in their
respective, previous convictions which
warranted the Regional Magistrate to consider those previous
convictions, as aggravating
circumstances.
For purposes of
sentence the Regional Magistrate has taken the two charges together
due the fact that the offences were committed,
simultaneously.
In conclusion the Regional Magistrate found that a sentence of direct
imprisonment will be apposite.
In accordance with
Section 51
(3) (a) of the
Criminal Law Amendment Act 105 of 1997
, if
any Court referred to in subsection (1) or (2) is satisfied that
substantial circumstances exist which justifies the imposition
of a
lesser sentence than those prescribed in the subsections, it shall
enter those circumstances on the record of the proceedings
and
thereupon impose a lesser sentence.
[3] In the
State
vs Malgas 2001 (2) (SA) 1222 (SCA)
,
it was held in determining whether there are substantial and
compelling circumstances, a Court must be conscious that the
legislature
has ordained a sentence that should ordinarily be imposed
for the crimes specified, and that there should be truly convincing
reasons
for a different response. It is for the Courts,
imposing sentence, to decide whether the particular circumstances
call for
the imposition of a lesser sentence. Such
circumstances may include those factors traditionally taken into
account in sentencing
– mitigating factors – that lesson
an accused moral guilt. These might include the age of an
accused or whether
or not he or she has previous convictions.
Of course these mitigating factors must be weighed together with the
aggravating
factors, but none of these need to be exceptional.
[4] In
Malgas
,
the Supreme Court of Appeal, in considering "substantial and
compelling circumstances", stated the following (1231A-D)
"whatever nuances of meaning may lurk in those words, their
central thrust seems obvious. The specified sentences were
not
to be departed from lightly and for flimsy reasons which could not
withstand scrutiny. Speculative hypotheses favourable
to the
offender, maudlin sympathy, aversion to imprisoning first offenders,
personal doubts as to the efficacy of the policy implicit
in the
amending legislation, and like considerations were equally obviously
not intended to qualify as substantial and compelling
circumstances.
Nor were marginal differences in the personal circumstances or
degrees of participation of co-offenders which,
but for the
provisions, might have justified differentiating between them.
But for the rest I can see no warrant for deducing
that the
Legislature intended a court to exclude from consideration,
ante
omnia
as
it were, any or all of the many factors traditionally and rightly
taken into account by courts when sentencing offenders".
[5] Earlier in the
Malgas
(at 1230E-G), Marais JA said the following concerning the Act:
"In what respects was it no longer business as usual?
First, a court was not to be given a clean slate on which to inscribe
whatever sentence it thought fit. Instead, it was required
to
approach that question conscious of the fact that the Legislature has
ordained life imprisonment or the particular prescribed
period of
imprisonment as the sentence which should ordinarily be imposed for
the commission in the listed crimes in the specified
circumstances.
In short, the Legislature aimed at ensuring a severe standarised, and
consistent response from the Courts
to commission such crimes unless
there were, and could be seen to be, truly convincing reasons for a
different response.
When considering the sentence the emphases
were to be shifted to the objective gravity of the type of crime and
the public's need
for sanctions against it. But that does not
mean that all other considerations were to be ignored. The
residual discretion
to decline to pass the sentence which the
commission of such an offence would ordinarily attract plainly was
given to the courts
in recognition of the easily foreseeable
injustices which could result from obliging them to pass the
specified sentences come
what may".
[6] Notwithstanding
the fact that the Magistrate has taken into account the personal
circumstances, ages and the previous convictions
of the Appellants,
it is important to take cognisance of the Judgment of Navsa JA
in S
vs
Rosslee
2006 (1) SACR537 (SCA) at paragraph 33 thereof, where he said the
following: "although there is no onus on an accused to prove
the
presence of substantial and compelling circumstances, it must be so
that an accused who intends to persuade a court to impose
a sentence
less than that prescribed should pertinently raise such circumstances
for consideration. In a given case it may
not be enough for an
accused to argue that such circumstances should be inferred from or
found in the evidence adduced by the State".
[7] An appellate
court is entitled to vitiate a sentence imposed by a trial court in
the exercise of its sentence discretion, where
there is
inter
alia
a material mis-direction committed by that court, or if it has
exercised its discretion upon a wrong principle or if the sentence
is
shockingly inappropriate.
[8] In this
instance, the Regional Magistrate has measured all the circumstances
relevant to sentence against the composite yardstick
(substantial and
compelling), and as such, found circumstances which justify its
deviation from the minimum sentence ordained by
the Legislature.
[9] The Regional
Magistrate has exercised his discretion towards sentence, properly
and reasonably and this Court may therefore
not interfere with the
sentence imposed by the Trial Court.
The following order is issued:
1. The Appeal is dismissed.
2. The convictions and sentences are
confirmed.
_______________________
O.J. VAN SCHALKWYK, AJ
I concur.
_______________________
C.J. MUSI, AJP
On behalf of the appellants: Mr. P.L.
van der Merwe
Legal Aid SA
Bloemfontein.
On behalf of the respondent: Adv D.W.
Bontes
Director Public Prosecutions
Bloemfontein