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
>>
2018
>>
[2018] ZAGPPHC 340
|
|
Conzo v S (A412/2016) [2018] ZAGPPHC 340 (16 February 2018)
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
CASE NO: A412/2016
16/2/2018
In
the matter between:
MARIO
FERNANDO
CONZO
APPELANT
And
THE
STATE RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
The appellant appeared in the regional
court, Vereeniging facing various charges, namely, 10 counts of
housebreaking with intent
to steal and theft; 1 count of theft; 2
counts of housebreaking with intent to rob and robbery with
aggravating circumstances;
1 count of robbery with aggravating
circumstances; 1 count of attempted murder; 1 count of murder; 1
count of unlawful possession
of a fire-arm and 1 count of possession
of ammunition. He was found guilty on all counts except count 2 and
3. He was positively
linked to the crime scenes in counts 1 and 4 to
12 by his fingerprints which were uplifted from the various scenes of
crime. The
crime scenes were situated in different areas from
Virginia in the Free State Province to Boksburg and Springs in
Gauteng Province.
The offences were committed over a period of
approximately nine years, starting from 2002 and culminating in 2010.
As regards the
other counts the appellant was positively identified
by some of the State's witnesses as the person who committed those
crimes.
[2]
The trial court imposed the following
sentences in respect of the convictions: 5 years imprisonment for
each of the 10 convictions
of housebreaking with intent to steal and
theft; 5 years imprisonment for theft; 15 years imprisonment for each
of the 2 convictions
of housebreaking with intent to rob and robbery
with aggravating circumstances; 15 years imprisonment for robbery
with aggravating
circumstances; 5 years for attempted murder; life
imprisonment for murder; 3 years for possession of an unlawful
firearm and 1
year for possession of ammunition. The trial court made
an order for the sentences to run concurrently as follows: the
sentences
in counts 1 and 4; the sentences in counts 5 and 6; the
sentences in counts 7, 8, 9, 10 and 11; the sentences in counts 12,
13
and 14; and the sentences in counts 15, 16, 17 and 18. The
appellant was also declared unfit to possess a firearm in terms of
s
103
of the
Firearms Control Act 60 of 2000
.
[3]
It appears from the perusal of the appellant's notice of appeal and
the heads of argument
that the appeal is only against the conviction
of murder and the resultant sentence of life imprisonment. The
appellant is, thus,
before us having exercised his automatic right of
appeal in terms of
s 309
(1)
(a)
of the
Criminal Procedure Act
51 of 1977
read with s 10 of the Judicial Matters Amendment Act 42 of
2013. He is, thus, appealing both the conviction and sentence in
count
15.
[4]
The factual background as regards count 15 is as testified by the
deceased's wife,
Maria Magdalena Jansen, his daughter Adele Lotz and
the deceased's nephew, Gavin Fouche, who were present at the time the
deceased
was shot. It appears from the evidence that the deceased was
shot at his house whilst sleeping by one of the two black men who
accosted them in the early hours of the morning. The deceased was
asleep in bed with his wife when the two men entered their bedroom.
The two men had obtained access into the house through one of the
windows in Adele's bedroom. Adele was woken up when a light was
shined on her face. The two men moved from Adele's bedroom to her
parents' bedroom where they shot and killed the deceased. During
the
time they were ransacking the house they also went to the bedroom
where Gavin was sleeping and that is when he (Gavin) saw
them and was
able to positively identify the appellant in an identification parade
.
[5]
Before us, the appellant's counsel, correctly so, did not pursue the
conviction appeal
and conceded that the trial court had correctly
convicted the appellant on that charge. She only proceeded to argue
the appeal
on sentence.
[6]
The ground raised by the appellant for
the appeal in his heads of argument is that the trial court
misdirected itself in not finding
that the cumulative effect of the
following factors as well as the personal circumstances of the
appellant amounts to substantial
and compelling circumstances,
namely-
6.1
The age of the appellant in that he was
relatively young at 31;
6.2
That the appellant spent almost 5 years
in custody awaiting trial; and
6.3
He was a first offender, and can be
rehabilitated.
The
contention is that the cumulative effect of these factors should have
persuaded the trial court to find substantial and compelling
circumstances to exist.
[7]
It was submitted on behalf of the
respondent that there were no substantial and compelling
circumstances which would have empowered
the trial court to deviate
from the prescribed minimum sentence- of life imprisonment. According
to the respondent , the appellant
was a first offender and his age
could not be taken as a mitigating factor but a neutral factor and
the time spent in custody awaiting
trial is only one of the factors
to consider. A further factor was that the appellant was convicted of
a number of offences but
showed no remorse for those offences. In
this regard the respondent's counsel referred us to the judgment in
5
v Matyitji
2011 (1) SACR 40
(SCA)
paras 18 and 23 and to the unreported judgment in
5
v Solomon Nendangwana Oupa Mashile
A360/15
delivered by Mabuse J on 29 April 2016 paras 14 and 15.
[8]
The
trial court was well aware that the offence in count 15 was a murder
committed during a robbery and that more than one robbery
was
committed during the murder, therefore, it had the jurisdiction to
impose a sentence of life imprisonment unless it found substantial
and compelling circumstances.
[1]
[9]
It is trite that in determining whether
there are substantial and compelling circumstances the sentencing
court must consider all
the factors traditionally taken into
account
when sentencing, that is, the nature and gravity of the offence, the
personal circumstances of the offender and the interest
of
society.
[2]
[10]
From the perusal of the record it is
quite clear that the trial court took into account the traditional
triad of sentencing and
came to a conclusion that there are no
substantial and compelling circumstances warranting deviation from
the prescribed minimum
sentence of life imprisonment and hence the
sentence of life imprisonment meted.
[11]
The trial court took into account the
seriousness of the offence in that the offence of murder is a very
serious offence. It considered
the interest of society in that the
society expected it to mete out a sentence which will prohibit the
society from taking the
law into their hands. In this regard it
relied on the judgment in
State v
Naidoo
2000 (1) SACR 361
(SCA) at p
364(E) and
R v Kark
1961(1)
SA 231 (AD) at p 2368 - C.
[12]
In regard to the personal circumstances
of the appellant the trial court had the benefit of a pre-sentence
report which was compiled
by Gauteng Province Social Development and
forms part of the record. The personal circumstances of the appellant
were fully addressed
t herein . In addition it considered the factors
put forward in argument for mitigation on behalf of the appellant,
that is, the
age of the appellant being 31 years old; the fact that
the appellant had a clean record and stood before it as a first
offender;
the fact that the appellant had a stable life prior to his
arrest, which was January 2011 and also that [….]. The request
was that these factors be taken cumulatively as forming substantial
and compelling circumstances.
[13]
It is my
view
that the trial court's finding that
there are no substantial and compelling circumstances cannot be
faulted.
[14]
The appellant appeared before the trial
court as a first offender even though, in addition to the murder
conviction, he was convicted
of a plethora of offences. I am of the
view that the murder conviction should not be taken in isolation from
these convictions.
With all the offences taken together, it can be
noted that the appellant was on a crime spree. The offences were
committed over
a considerable number of years, from 2002 until 2010.
It is, indeed so, that at the time when he started committing the
offences
he was 17 years old, in 2010 he was already 24 years and at
the time he appeared before the trial court was 31 years old. In such
circumstances I have to hold that the fact that the appellant was a
first offender and his relative youth at the time of commission
of
the offences do not carry any weight because it does not seem as if
the appellant was in any way prepared to leave his life
of crime.
[15]
In the light of these two factor s, the
trial court went to the extent of considering the possibility of
rehabilitation and found
the appellant not a suitable candidate for
rehabilitation, in particular, because he showed no remorse. It, in
that respect, made
the following findings:
"what
is important to note is that the offences were committed over a
period of time from 2002 to 2010, and the gravity of
the offences
increased from housebreaking and theft to housebreaking with the
intent to rob and robbery, theft of a motor vehicle,
attempted murder
and eventually murder .
The
accused had the opportunity to rehabilitate himself since 2002 and
not commit anymore offences. If you look at the years in
which the
offences were committed it is clear to the court that there was a
route of a spree for the accused to commit an offence.
Except
for counts 15 and 18, which were committed on the same day and the
same incident as well as counts 13 and 14, which were
committed on
the same day, the other offences were committed in a very close
proximity from each other."
[16]
The findings of the trial court are
supported by the findings of the probation officer in the
pre-sentencing report who reported
as follows:
"
The
appellant denies having committed any of the offences he is convicted
of in circumstances where his fingerprints connected him
to the
crimes and was positively identified at an identity parade. Even at
the time he was being interviewed by the social workers
the appellant
kept giving the social workers instructions to inform the court that
he was innocent. The finding of the probation
officer is that the
appellant did not accept the court's finding of guilt. He also
refused to accept responsibility for his actions
and kept shifting
the blame. He showed no remorse for the crimes committed and was not
prepared to take responsibility for his
actions and he believed in
his own innocence which will make the process of rehabilitation very
difficult."
According
to the probation officer, except that the appellant was a first
offender, there was nothing else in the appellant's personal
circumstances that could be used in mitigating his sentence. She took
into account the many people who were involved in the crimes
committed by the appellant as an aggravation in the interest of
society.
[17]
The
period spent in custody awaiting trial is a factor which does not, in
the circumstances of this instance, assist the appellant
. This
factor has been held by the Supreme Court of Appeal
[3]
as
one of the factors to be taken into account when considering whether
substantial and compelling circumstances exist and ought
to be
weighted with other circumstances. On its own, it does not constitute
a substantial and compelling circumstance.
[4]
[18]
The sentence of life imprisonment
imposed by the trial court, in my view, does not constitute
misdirection and does not as such
call for interference. The sentence
is just and appropriate, it fits the crime and the offender and it is
in the interest of the
society. The appeal against sentence ought to
be dismissed.
[19]
I
make the following order:
The
appeal on conviction and sentence is dismissed .
E.M.KUBUS
JUDGE OF THE HIGH COURT
I
concur
F.
DIEDERICKS,
ACTING
JUDGE OF THE HIGH COURT
Appearances:
On
behalf of the appellant: Ms:
P.
VOSTER
Instructed
by:
PRETORIA
JUSTICE CENTRE
2
nd
Floor FNB Building
206
Church Street
PRETORIA
0001
On
behalf of the respondent:
Adv:
M. MOLOI
Instructed by:
DIRECTOR OF PUBLIC PROSECUTIONS
Presidential Building
28 Church Square
PRETORIA 0001
[1]
See
section 51
(1) of the
Criminal Law Amendment Act 105 of 1997
).
[2]
See S v Malgas
2001 (1) SACR 469
(SCA) p 470.
[3]
See S v Radebe and Another 2013 (1) SACR 165 (SCA.)
[4]
See the unreported judgment in S v Solomon Nendangwana Oupa Mashile
above para 14.