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[2016] ZAGPPHC 99
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Mngoma v S (23/2/2016) [2016] ZAGPPHC 99 (23 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION.
PRETORIA
23/2/2016
CASE NO: A741/2015
Not reportable
Not of interest to other
judges
Revised
In the matter between:
BONGINKOSI ANTONIE
MNGOMA APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
KEKANA AJ
2
[1] On 24 May 2013, in
the Regional Court Pretoria
("the court a quo”
)
,
the Appellant pleaded guilty and was convicted on a charge of
fraud. On 29 August 2013 he was sentenced to 8 years imprisonment and
on 18 May 2015 the court a quo granted him leave to appeal against
sentence.
[2] Prior to his arrest,
the Appellant was employed as a truck driver by Total Power, a
delivery firm based in Durban. On 20 July
2012 He was sent to deliver
a consignment of cosmetics worth R1, 2 million at a Shoprite
Warehouse in Olivievenhoutbosch, Centurion.
On his way to Shoprite he
was approached by one Harry with an offer to divert the delivery to a
different destination against payment
of R100 000.00. The Appellant
accepted the deal and diverted the delivery to Boksburg, where he
delivered the consignment as directed
by members of the syndicate. He
had been given a fraudulent proof of delivery to submit to his
employer, which he did. When confronted
by his employer, admitted
that he was approached by a syndicate to deliver the consignment in
Boksburg and he was also promised
payment of R100 000.00.
[3] At the trial, the
accused pleaded guilty to the charge of fraud laid against him. His
counsel submitted a statement in terms
of
section 112
(2) of the
Criminal Procedure Act 51 of 1977
.
3
[4] It was submitted by
the defence counsel that the court should take into account the
Appellant's personal and mitigatory circumstances
into account when
it metes out the sentence.
[5] It is the principle
of our law that the punishment is a matter for the discretion of the
sentencing court. In
S
v Pillay
1977 (4) SA 531
(A) at
535,
The appeal court stated that as the essential inquiry in
the appeal against sentence, is not whether the sentence was right or
wrong,
but whether the court imposing it exercised its discretion
properly and judiciously. A mere misdirection is not by itself
sufficient
to entitle the Appeal Court to interfere with the
sentence. It must be of such a nature, degree, or seriousness that it
shows directly
or inferentially that the court did not exercise its
discretion at all or exercised it improperly or unreasonably.
[6] The presiding
Magistrate has discretion when passing sentence. However, he has a
duty to consider fairly and equally the personal
circumstances of the
convicted person, the severity of the offence and the interest of the
society.
[7] The learned
Magistrate in his judgment demonstrated some level of unhappiness
into how the case was handled by the prosecutor.
[8] The learned
Magistrates, regardless of his unhappiness, he proceeded to sentence
the appellant. Sentencing is a judicial function
sui generis.
4
It should not be governed
by considering actions based on notion akin to onus of proof.
At
this stage of the trial, public interest requires the court to
play a more active, inquisitorial role. The accused should not be
sentenced unless and until all the facts and circumstances necessary
for the responsible exercise of such discretion have been
placed
before the court"
(
S v
Siebert
1998(1) SARC 554 AD).
[9] The learned
Magistrate in sentencing the appellant, put more emphasis on the fact
that the crime that the appellant committed
is the one that ought to
have been prosecuted in terms the minimum sentence legislation,
namely
Section 51
of Act 105 of 1997 which in effect would have put
the appellant at risk of being sentenced to a minimum of 15 years
imprisonment.
[10] Considering the
circumstances of this case, it seems the court a
quo
misdirected
itself in regard to sentence. This court is at large to interfere
with the sentence imposed for the following reason:
[10.1] the learned
Magistrate has not exercised his discretion judiciously;
[10.2] the sentence
imposed by the learned Magistrate is unduly harsh and induces a sense
of shock;
[10.3] the learned
Magistrate misdirected himself by failing to attach proper weight to
the fact the appellant is a first offender,
his age being 38 and that
he co-operated with the investigating officers. The fact of
cooperation with the investigating officers
5
demonstrates his
appreciation
(S v M 2007(2) SACLR 539 CC)
and acknowledgment
of the extent of his error and therefore remorse on his part;
[10.4] the learned
Magistrate misdirected himself by dismissing the correctional
supervision report. The introduction of correctional
supervision has
to focus on rehabilitation and assist in the shift of emphasis from
retribution.
[11] Having regard to all
the circumstances, it is my view that the sentence of 8 years
imprisonment without any portion of it suspended,
is harsh and ought
to be set aside.
[12] In the premises, I
propose the following order:
1. The appeal against
sentence succeeds;
2. The sentence of 8
years imprisonment by the Regional Court Pretoria, imposed on the
appellant is set side and substituted by
a sentence of six (6) years
imprisonment, half of which is suspended for five (5) years on
condition the appellant is not convicted
of fraud or an offence
involving an element of dishonesty; and
3. The new sentence of 6
years is antedated to 29 August 2013.
______________________
T.S KEKANA AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I concur, it is so
ordered.
________________________
S.P MOTHLE J
JUDGE OF THE HIGH
COURT OFSOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
ADV FOR THE APPELLANT:
A.B BOOYSEN
INSTRUCTED BY: DU TOIT
ATTORNEYS
ADV FOR THE RESPONDENT:
P. VOSTER
INSTRUCTED BY: STATE
ATTORNEY