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[2016] ZAGPPHC 754
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Mahlangu v S (A651/13) [2016] ZAGPPHC 754 (26 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: A651/13
DATE:
26 AUGUST 2016
In
the matter between:
AARON
MORGAN
MAHLANGU
.........................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGEMENT
NKOSI: AJ SITTING WITH: MOLAHLEHI J
INTRODUCTION
[1]
The Appellant is an adult male person who was 37 years old
at the time of his arrest. He was arrested on the 23 April 2003 and
charged
with the following offences:-
[a]
Count 1: Housebreaking with intent to commit robbery and
robbery with aggravating circumstances.
[b]
Count 2: Rape
[c]
Count 3: Theft of a motor vehicle.
[2]
He pleaded not guilty to all three charges. The date when
the trial commenced is not clear from the record. However there is a
note
made by them Magistrate on the 9 December 2004 which reads:-
“
Uitgestel
14 Maart 2005 hof 6 vir pleit en
verhoor
”
On the 14 March
2005, the Magistrate made a note which reads as follows:-
“
Uitgestel2
en 3 Junie 2005 Hof 3 verder verhoor”.
I
can safely assume that the trial commenced on the 14 March 2005.
[3]
At the end of the trial, the Appellant was found guilty of
all the charges and on the 19 July 2007 he was sentenced as follows:-
[a]
Count 1: 15 years imprisonment
[b]
Count 2: 15 years imprisonment
[c]
Count 3: 5 years imprisonment
The sentence in
respect of count 3 was to run concurrently with the sentence in
respect of counts 1 and 2. Effectively the Appellant
was sentenced to
30 years imprisonment.
[4]
The Appellant applied for leave to appeal on the 16 August
2007. The Application was refused. However upon petitioning the High
Court, leave to appeal was granted only in respect of the sentence.
MERITS
IN BRIEF
[5]
The complainant testified in detail what happened on the
night of the 9 December 2002. She arrived at home driving her motor
vehicle,
parked it and got into her house. She locked the doors
behind her. She went into the kitchen to unlock the door in order to
allow
her dog into the house. At that stage the Appellant and his
co-perpetrator were already in the house having gained forceful entry
through one of the doors at the back. Holding knives, they ordered
her not to make noise and escorted her into a spare room. One
of the
assailants left to ransack the house and the other remained with her.
She was tied up. The one remaining with her, raped
her and left
together with the other taking with them the complainant's goods and
the motor vehicle.
PERSONAL
CIRCUMSTANCES OF APPELLANT
[6]
The Appellant’s personal circumstances were placed
on record and they are the following:-
6.1
He was 41 years old at the time of his conviction and
sentence.
6.2
He is married with 3 children aged 19,12, and 8 years.
6.3
All the children reside with their mother and grandmother.
6.4
He was employed earning R2 400,00 per month.
6.5
He passed grade 10 in school.
APPELLANT’S
GROUNDS OF APPEAL
[7]
The Appellant’s grounds of appeal are:-
7.1
The trial court erred in not finding that there were
substantial and compelling reasons to justify the imposition of a
sentence
less than the prescribed minimum sentences. This argument is
advanced in respect of the first charge (housebreaking with intent
to
commit robbery and robbery with aggravating circumstances) as well as
the second charge of rape.
7.2
Further, that the trial court misdirected itself in not
attaching sufficient weight to the following factors:-
7.2.1
The Appellant spent 4 years and 3 months awaiting trial whilst
in custody.
7.2.2
No evidence was presented in respect of the complainant’s
injuries. The J88 only reflects bruising to the Fossa Navicularis.
7.2.3
No evidence was presented to establish the extent of the
trauma suffered by the complainant.
7.2.4
The rape was not one of the worst.
7.2.5
The trial court foiled to consider the accumulative effect of
the sentence.
RESPONDENT’S
SUBMISSIONS REGARDING GROUNDS OF APPEAL
[8]
On the other hand, the Respondent argued that the sentence
was appropriate for the following reasons: -
8.1
The Appellant has previous convictions relevant to the first
charge. He therefore has no respect for the norms of the society, the
rights and property of other individuals and the justice system. He
has poor prospects of being rehabilitated.
8.2
The trial court was correct in imposing the minimum sentence
in respect of count 1.
8.3
The impositions of the maximum sentence of 15 years in respect
of rape was warranted given the facts and circumstances of the case
in that:-
8.3.1
The rape did not occur in the spur of the moment It was
planned.
-8.3.2—The
complainant was at her home When attacked.
8.3.3
She suffered anguish in particular when the Appellant had to
rub his penis against her body to induce an erection.
8.3.4
The DNA evidence linked the Appellant to the rape but he still
pleaded not guilty and continued to deny raping the complainant.
8.3.5
The fact that the trial court ordered sentence in respect of
count 3 to run concurrently with count 1 and 2 clearly indicates that
the trial court did apply its mind.
[9]
The complainant’s version is to a very large extent
corroborated by that of the Appellant except that the Appellant
denies
raping the complainant. He alleged that it was his
co-perpetrator who raped the complainant This explains why leave to
appeal against
conviction and sentence was refused by the trial
magistrate. Further, why the High Court considering the petition
granted leave
to appeal only in respect of the sentence.
ISSUES
TO BE DECIDED
[10]
The Appeal is against the sentence and is opposed. The
court is called upon to decide if there were substantial and
compelling reasons
to persuade the trial court not to impose the
minimum sentence. The court is further called upon to order that the
sentences in
respect of count 1 and count 2 should also run
concurrently. He argues further that the trial court misdirected
itself by failing
to consider the accumulative effect of the
sentence.
CONSIDERATION
OF ISSUES
[11]
Section 5(2)
(a) of the
Criminal Law Amendment Act 105 of
1997
prescribes a minimum sentence of 15 years imprisonment for a
first offender convicted of robbery with aggravating circumstances.
The undisputed
evidence on record is that, the Appellant had a knife with him,
ordered the Complainant not to make any noise, raped
her threatened
her to a state of submission and robbed her of her belongings. There
can be no doubt that all of these factors constitute
aggravating
circumstances which would normally persuade the trial court to
consider imposing the minimum sentence.
[12]
I agree with the Respondent’s submission that the
learned Magistrate’s decision to impose the minimum sentence of
15
years imprisonment in respect of count 1 cannot be faulted. I have
considered the Appellant’s personal circumstances. It is
true
that he has had previous encounters with the law as indicated in his
criminal record. There are a number of previous convictions
which are
similar in nature with the present conviction of house breaking with
intent to rob and robbery.
It was argued on
his behalf that the fact that he spent 4 years and approximately 3
months in custody awaiting trial should have
been given sufficient
weight and regarded as a substantial and compelling reason persuading
the learned Magistrate not to impose
the minimum sentence. I do not
agree with this submissions for reasons I shall give later herein.
[13]
In S v Rabie 1975(4) SA 855(A) at p 857D-E. it was stated
that:-
”
In every
appeal against sentence, whether imposed by the magistrate or a
Judge, the court hearing the appeal should be guided by
the principle
that punishment is pre-eminently a matter for the discretion of the
trial court; and should be careful not to erode
such discretion:
hence the further principle that sentence should only be altered if
the discretion has not been judicially and
properly exercised The
test under (b) is whether the sentence is vitiated by irregularity or
by misdirection or is disturbingly
inappropriate. ”
In this case,
housebreaking with intent to rob and robbery was proved beyond a
reasonable doubt. In fact the commission of the said
offence is
corroborated by the Appellant’s own evidence. The aggravating
circumstances are apparent from the evidence on
record. I can
therefore not falter the learned magistrate in passing a minimum
sentence in light of the evidence before him. I
am therefore
satisfied that he exercised his discretion judicially and did not
misdirect himself.
[14]
I now turn to deal with the submission by the Appellant
regarding the period of 4 years and 3 months spent in custody
awaiting trial.
In S v Radebe 2013 (2) SACR165 at 170 (B) it was
stated by Lewis J.A that:-
“
A better
approach, in my view, is that the period in detention pre-sentencing
is but one of the factors that should be taken into
account in
determining whether the effective period of imprisonment to be
imposed is justified whether it is proportionate to the
crime
committed Such an approach would take into account the conditions
affecting the accused in detention and the reason for a
prolonged
period of detention ”
The pre-sentence
period spent in custody should be considered together with all the
evidence in mitigation and in aggravation of
the sentence in order to
decide whether there are substantial and compelling reasons to
deviate from the minimum sentence.
[15]
The reasons for the prolonged period of detention
pre-sentencing appear from bundle of documents which form part of the
appeal record
as well as the record itself viz:-
15.1
A trial date was set The Appellant decided to terminate the
service of his Legal Aid Attorney.
15.2
There was a further postponement at his request because he was
unable to raise funds to appoint a private attorney. In the meantime
state witnesses were excused from attending court purely to afford
the Appellant an opportunity to sort out his issue of legal
representation.
15.3
The Appellant re-applied to legal aid and was provided with a
legal representative.
15.4
His first attorney withdrew from the record on the 12 October
2014. Finally the subsequent Legal Aid Attorney appeared on his
behalf
on the 25 November 2004. The trial commenced on the 14 March
2005.
15.5
The matter was postponed at the request of the state on the 2
June 2005, on the 3
rd
October 2005 and on the 6
th
December 2016 because the Public Prosecutor was ill on those days. It
was also postponed on the 14 June 2006 because the investigating
officer was on leave.
15.6
The matter was also postponed on the 8
th
August
2007 because the Appellant’s attorney was ill.
15.7
On all other occasions, the trial proceeded and the matter was
postponed partly heard.
I have perused
the record and studied the reasons for postponement. I did not get an
impression that there was a deliberate and
concerted effort to delay
the trial. The state called six witnesses whose evidence was material
to the case. I have further taken
into account the fact that the
Appellant was not arrested at the scene but there had to be a lot of
investigation done by the police.
It is such evidence about the
investigation and eventually the arrest which had to be placed on
record before the court
[16]
I have considered the pre-sentencing period in custody
together with the Appellant’s mitigating factors and the
circumstances
of the case, I am persuaded that the evidence in
aggravation has more weight. Further the prolonged period of trial
cannot be attributed
to the prosecution authority. I therefore do not
find that the learned magistrate misdirected himself in not finding
that there
were substantial and compelling reasons to impose a lesser
sentence.
[17]
It was further argued that the presiding magistrate
misdirected himself by imposing the maximum sentence in respect of
the rape
charge without giving reasons.
[18]
A maximum sentence by its nature presupposes that there
must be extra ordinary circumstances which go beyond what would have
persuaded
the trial court to impose a minimum sentence. Such extra
ordinary circumstances must be justified by evidence on record. The
discretion
to impose the maximum sentence must and still be exercised
judicially and reasons given for such conclusion.
[19]
In
S
v
Matvitvi
2011
(2)
SACR 40
(SCA) at 53F.
the
court held that:-
“
Courts are
not free to subvert the will of the legislature by resort to vague,
ill- founded hypothesis that appear to fit the particular
sentencing
officer’s personal notion of fairness. Predictable outcome not
outcomes based on the whelm of an individual judicial
officer, are
foundational to the rule of law which lies at the heart of our
constitutional order. ”
The only reason
given by the learned magistrate for opting for the maximum sentence
is that he felt that the minimum sentence of
10 years imprisonment
was “too light”. The learned magistrate may be pardoned
for not recalling whether there were
other reasons which influenced
his decision. This is so because the trial record had to be
reconstructed 9 years after the sentence
was imposed.
[20]
The reconstructed record does justify the imposition of
the minimum sentence of 10 years in respect of the rape charge.
However
it does not go further to justify the imposition of the
maximum sentence. One would have expected all the role players
involved
in the reconstruction of the record to have canvassed the
reasons why the maximum sentence was imposed. In the alternative,
they
should have atleast indicated on record whether the reasons for
imposing the maximum sentence were given or not although same could
not be remembered. I have doubt in my mind whether the reasons for
imposing the maximum sentence were given. I therefore give the
Appellant the benefit of the doubt
[21]
The presiding magistrate ordered that the 5 year term of
imprisonment in respect of the third count should run concurrently
with
the sentences in respect of counts 1 and 2. This fact alone
convinces me that the learned magistrate did consider the
accumulative
effect of the sentence. I will therefore not interfere
with the discretion of the trial court.
[22]
I therefore propose the
following order:-
[a]
The
sentence in respect of count one is confirmed.
[b]
The
sentence in respect of count two is set aside and the following
sentence is imposed, 10 years imprisonment
[c]
The
sentence in respect of count 3 is confirmed.
[d]
The
sentence in respect of count three is to run concurrently with the
sentence in respect of count 1 and 2.
[e]
The
sentence is ante
dated to
the 19
tb
July 2007.
N
NKOSI
Acting
Judge of the High court, Pretoria
22
August 2016
1
AGREE.
E
MOLAHLEHI
Judge
of the High Court, Pretoria
22
August 2016