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[2019] ZAFSHC 204
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Mlangeni v S (A230/2017) [2019] ZAFSHC 204 (24 October 2019)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case number: A230/2017
In
the matter between:
VUYANI
MLANGENI
Appellant
And
THE
STATE
Respondent
CORAM:
MHLAMBI,
Jet
MURRAY,
AJ
JUDGMENT
BY:
MHLAMBI, J
HEARD
ON:
14 OCTOBER 2019
DELIVERED
ON:
24 October 2019
MHLAMBI,
J
[1]
The
appellant was convicted in the regional court on charges of robbery
with aggravating circumstances and kidnapping. He was sentenced
to 17
and 5 years imprisonment respectively and the sentences were ordered
to run concurrently.
[2]
His application for leave to appeal
against both conviction and sentence were dismissed on 11 December
2014. His petition to this
court was successful and granted against
the sentence of count 1 only.
[3]
The
appellant's grounds of appeal against sentence are stated as follows:
1.
An
effective term of 17 years' imprisonment is strikingly inappropriate
in that it is out of proportion to the totality of the accepted
facts
in mitigation, is excessive in the circumstances and induces a sense
of shock.
2.
The
court erred by not finding that there were substantial and compelling
circumstances to enable the court to deviate from the
imposition of
the prescribed minimum sentence, having regard to the totality of all
the circumstances of the case, more particularly
in view of the
following factors:
1.
The appellant is not married and has a
one year old child who resided with his mother. Both are supported by
the applicant;
2.
The rehabilitation element;
3.
He has previous convictions of robbery
(2006), theft (2008) and assault (2009);
4.
He is 25 years old, a security officer
at CPIESA Engineering and earned, as the owner of a fruit and
vegetable stand, R 700.00 a
week;
5.
His mother's health is poor and needed
his support.
[4]
In
passing sentence, the court a
quo
stated that:
"In
this instance I am of the view, in particular in count- firstly in
count 1that as
a
result
of
the
fact that there was
a
minimum
measure
of
violence,
except for the pointing of the firearm, the fact that the-
no
one was injured or harmed in any
particular manner, this would justify or render the sentence of
-
in respect of accused number 1, 4 and
5
of
15 years inappropriate and in respect of accused 2 and 3 also render
the such sentence of 20 years inappropriate."
The
appellant's co-accused numbers 1, 4 and 5 were each sentenced to 12
years' imprisonment while the appellant was sentenced to
17 years
imprisonment. In the court a
quo's
view, the appellant's previous
convictions distinguished him from the rest of the accused as he was
a second offender for the same
offence.
[5]
The
sentence imposed by the court a
quo
is not supported by the state. The
state submitted orally and in its heads of argument that in imposing
the sentence it did, the
trial court evidently had regard to the
provisions of
sections 51(2)
of the
Criminal Law Amendment Act 105 of
1997
. The said section provides as follows:
"Notwithstanding any other
law but subject to subsections (3) and (6),
a
regional court or
a
High
Court shall-
Sentence
a
person who has
been convicted of an offence referred to in
(a)
Part 2
of schedule 2, in
the case of:
(i)
A first offender,
to
imprisonment for
a
period not less than 15 years;
(ii)
A second offender of any such
offence to imprisonment for
a
period
not less than 20 years; and
(iii)
A third
or
subsequent offender of any such
offence,
to
imprisonment
for
a
period
not less than 25 years"
[6]
The
state submitted that the trial court's view that the appellant was a
second offender for the purposes of
Part II
of Schedule 2 as
contemplated in
section 51(2)
of the Act was erroneous as the
previous conviction of the appellant of robbery was not a previous
conviction as contemplated in
section 51(2)
of the Act. This
constituted a material misdirection by the trial court which
justified interference by this court. The trial court
should have
imposed a sentence of 15 years' imprisonment. In the circumstances of
this case, an appropriate sentence would have
been the imposition of
12 years' imprisonment.
[7]
The
appellant's legal representative confirmed this view and submitted
that it was not sufficient that the appellant had a previous
conviction for robbery, but that the conviction must be robbery with
aggravating circumstances. Furthermore, the court convicted
the
appellant as an accomplice and not as a perpetrator. He was picked up
after the robbery was committed and was involved with
the selling of
the stolen cigarettes. None of the complainants were injured during
the commission of the offence and the appellant
was not on the scene
of the crime as at the time the robbery was committed. Consequently,
the sentence of 17 years1 imprisonment
is disturbingly inappropriate.
[8]
It
was submitted on behalf of the appellant that the court should
consider imposing a sentence of 12 years' imprisonment, of which
2
years should be suspended for a period of 5 years as a deterrence to
the appellant not to commit offences of a similar nature.
That would
also distinguish him as an accomplice from the perpetrators who were
sentenced to 12 years' imprisonment each.
[9]
On
a consideration of the trial court1s reasoning on sentence, it is
apparent that it would have imposed a sentence of 12 years'
imprisonment to bring it in par with the sentences of the other
accused, had it not been influenced by the notion that the appellant
was a second offender with a previous conviction. I agree with the
submissions made on behalf of the appellant and that an appropriate
sentence would be the imposition of 12 years1 imprisonment, two of
which should be suspended for a period of five years.
[10]
In the result I make the following
order:
Order
1.
The sentence of 17 years’
imprisonment in respect of count 1 is set aside and is substituted by
the following sentence:
1.1
12 years1 imprisonment 1 of which 2
years is suspended for a period of 5 years;
1.2
The sentence is antedated to 10 November
2014.
MHLAMBI
, J
I
concur
MURRAY,
AJ
Counsel for the
Appellant:
MS VC Abrahams
Instructed by:
Bloemfontein Justice Centre
Southern Life Plaza Building
1
st
Floor, South Wing
41 Charlotte Maxeke Street
Bloemfontein
Counsel
for the Respondent:
Adv. Lesie-Shale
Instructed by:
The Director of Public Prosecutions
Waterfall Centre
3
rd
Floor
Bloemfontein