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2017
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[2017] ZAFSHC 104
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Mokhobo v S (A32/2017) [2017] ZAFSHC 104 (15 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A32/2017
In
the matter between:
THABO
SIEFIED
MOKHOBO
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE, J
et
MHLAMBI, J
HEARD
ON:
12 JUNE 2017
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
15 JUNE 2017
Summary:
Criminal Procedure and Minimum Sentences Act- Appeal against
sentences. No cause shown to interfere with sentences imposed.
Trial
court finding cause to depart from prescribed minimum sentence but
not entering such cause, in the form of substantial and
compelling
circumstances, on record. The requirement to specify and record
such circumstances reiterated with reference
to section 51(3)(a) of
Act 105 of 1997. Appeal dismissed.
[1]
On 2 December 2014 the appellant, who was legally represented,
appeared before the regional court at Welkom on 1 count of theft,
1
count of unlawful possession of semi-automatic pistol and 1 count of
possession of ten rounds of ammunition as charges 1, 2 and
3
respectively. He was found guilty on all counts in accordance
with his plea of guilty and was, on 10 December 2014, sentenced
to an
effective 12 years imprisonment with the 2 year sentence on charge 3
being directed to run concurrently with the 10 year
sentence on
charge 2, while 3 years of the 5 year sentence on charge 1 being
conditionally suspended. He feels aggrieved
by the effective
sentence and now approaches us on appeal against the same with leave
granted by this court on petition.
[2]
On imposing the impugned sentences the court below,
inter
alia
,
found that the appellant stole from his employer, who also happened
to be his mother’s employer. The trial court,
further,
inferred from the aforegoing fact that the appellant’s mother
probably lost her employment as a result of,
inter
alia
,
the appellant’s conduct. The court
a
quo,
further,
observed that there was no evidence that the relevant firearm was
used to commit any violent crimes. In conclusion
the trial
court relied on
State
v Madikane
2011 (2) SACR 11
(ECG) where the accused was sentenced to 7 years
imprisonment on appeal for unlawful possession of semi-automatic
firearm.
[3]
On the papers and in argument before us the appellant, through Mr
Reyneke appearing for Mr Van der Merwe, effectively contends,
inter
alia
,
to the effect that the trial court failed to strike a healthy balance
between his personal circumstances as a 35 year old terminally
ill
first offender who was staying with and supporting a 13 year old
child together with his mother, the crimes he committed and
the
interests of society. In his view the fact that he was
remorseful also turned the scales in favour of a far lesser effective
sentence. In his opinion the trial court erred in failing to
direct that all the sentences should run concurrently regard
being
had to the fact that the crimes were closely related in both time and
place and that they flowed from the same action.
He
concludes that 5 years imprisonment is appropriate as effective
sentence in the circumstances of this matter.
[4]
The state, through Mr Simpson, on its part supports the sentences and
submits,
inter
alia
,
that the trial court correctly found that substantial and compelling
circumstances existed to justify a lesser sentence and gave
due
emphasis
to
the elements of punishment.
[5]
Sentencing is pre-eminently the duty of the sentencing court and the
powers of the court of appeal to interfere with a sentence
are
limited. It can only interfere if the sentencing court did not
exercise its discretion properly or at all by failing
to strike a
balance between the triad consisting of the personal circumstances of
the accused, the nature of the crime committed
and the interests of
society. (See
S
v Pieters
1987 (3) SA 717
(A))
[6]
Where the provisions of Criminal Law Amendment Act 105/1977 as
amended (the Minimum Sentences Act) are applicable the court
can only
depart from prescribed minimum sentences if legal cause, in the form
of substantial circumstances compelling such a deviation,
exists.
The test applicable being whether or not the cumulative impact of
mitigating factors on aggravating circumstances,
inclusive of the
interests of society, renders such a prescribed minimum sentence
unjust. (See
S
v Malgas
2001 (1) SACR 469
(SCA)).
[7]
In the event of the sentencing court finding such a cause to deviate
from prescribed minimum sentences, such court is required
to enter
substantial and compelling circumstances it found to exist on record
insofar as courts are not to deviate from prescribed
minimum
sentences lightly and on flimsy reasons. (See
S
v Malgas
(
supra
)
at
par
[9] and section 51(3)(a) of Minimum Sentences Act).
[8]
In the instant matter the trial court apparently found reason to
deviate from the prescribed minimum sentence of 15 years imprisonment
for unlawful possession of semi-automatic firearm but did not
specifically record its reasons for so doing. It can, however,
be inferred from the decision the court below relied upon that the
reason for the departure is the fact that there was no evidence
that
the firearm was used to commit any violent crimes whilst in the
appellant’s possession. In my view had the firearm
been
used to commit such crimes the appellant, as the accused,
would, most probably, have been charged for those crimes
and, if
convicted, been sentenced accordingly. On a charge and
conviction of unlawful possession of a firearm the accused
gets
sentenced for possession as convicted and nothing else.
[9]
The fact of the matter in the instant case is that the trial court
deviated from applicable prescribed minimum sentence and
had his
reason to do so. It must, however, be emphasized that
sentencing courts are obliged to record the relevant grounds
compelling them to deviate from such prescribed sentences so that
same can be seen to exist.
[10]
There exists nothing before us to suggest that the trial court did
not exercise its discretion properly or at all insofar as
he tempered
the cumulative effect of the sentences by suspending part of the
sentence in the theft charge and directing sentences
on counts 2 and
3 to run concurrently because the appellant was,
inter
alia
,
found to have shown remorse by pleading guilty. The parties
were correctly in agreement that the crimes were serious.
[11]
The learned Acting Regional Magistrate is urged to have regard to the
relevant provisions of Minimum Sentences Act in future
and to ensure
that the substantial and compelling circumstances found are, at the
very least, seen to exist on record.
ORDER
[12]
In the result the appeal fails.
[13]
The convictions and sentences are confirmed.
____________
LJ
LEKALE, J
I
concur
______________
JJ
MHLAMBI, J
On
behalf of appellant:
MR JD Reyneke
Instructed
by:
Bloemfontein Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Mr A Simpson
Instructed
by:
Office of Director of Public Prosecutions
Bloemfontein