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
>>
2016
>>
[2016] ZAGPPHC 1170
|
|
Morakane v S (A849/2012) [2016] ZAGPPHC 1170 (26 October 2016)
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 COUT OF SOUTH AFRICA
GAUTENG
DIVISION
26/10/2016
Case
No: A849/2012
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THABO
MORAKANE
AND
THE
STATE
Heard:
17 October 2016
Delivered:
26 October 2016
JUDGMENT
Molahlehi
AJ with Senyatsi AJ
Introduction
[1]
This is an appeal against the decision of the magistrate court made
on 7 August 2012. The appellant was charged and convicted
of the
following offences:
Count
1: Robbery with aggravating circumstances.
Court
2: Theft of a motor vehicle; and
Court
3: Robbery with aggravating circumstances.
[2]
The appellant was sentenced to an effective 13 years imprisonment and
was declared unfit to possess a firearm in terms of s
103 of the
Firearms Control Act.
[1]
The
appellant was legally represented thought the hearing.
[3]
The state in support of its case presented the testimony of two
witnesses. The first witness, Mr M., testified that he had visited
his cousin who stays in Pretoria during September 2008. The incident
of the robbery occurred on 21 September 2008. Both witnesses
did not
know the appellant. They testified that they were robbed by a group
of men who took their TV and other items from the flat.
The group
also stole their motor vehicle.
[4]
The appellant, Mr Morokane, was the only witness for the defense. He
testified that on the night in question he was at a nightclub
where
he met with Mr M., one of the complainants, who invited him to his
table. He thereafter invited him to his flat where on
arrival they
played music and watched some gay movies. They thereafter had sex and
slept together. In the morning Mr M. dropped
the appellant at corners
Van Der Walt and Bloed streets in Pretoria. According to him Mr M.
then gave him R50,00. It is not clear
why the money was given to him.
[5]
It is common cause that there was no direct evidence to identify the
appellant as part of those who perpetrated the robbery
at the
complainant's flat. The state in support of its case relied on the
fingerprints which were uplifted from the items which
were taken from
the flat and those from the stolen motor vehicle. The fingerprints
were not disputed. The explanation for their
presence on the items,
according to the appellant, is that he touched those items whilst he
was enjoying himself with the complaint
and that happened also
because he was told to feel free by the person who invited him into
the house.
The
grounds for appeal
[6]
It was submitted on behalf of the applicant that although his offence
attracted the legislated minimum sentence the trial court
imposed a
sentence less than that because it found substantial and compelling
circumstances in his case. It was however, submitted
that the
sentence of 13 years imprisonment was disproportionate to the
circumstances of the offence. In other words, the sentence
of 13
years imprisonment was disproportionate when considering the
appellant's personal circumstances.
[7]
It was further contended that the trial court ought to have been
persuaded to impose a sentence less than 13 years particularly
when
regard is had to the following:
71.
The appellant had spent one year in custody awaiting trial;
7.2
The complainants were no injured;
7.3
Most of the properties were recovered; and
7.4
It was not the worst kind of robbery.
The
decision of the magistrate court
[8]
In its decision the court found that it was common cause that the
fingers prints which had been uplifted from the items which
were
taken from the items in the flat and those from the motor vehicle
were those of the appellant. The admission by the appellant
was made
in terms of s 220 of the Criminal Procedure Act (CPA).
[2]
It was further found that the admissions complied with the
requirements of s 217 of the CPA.
[9]
It is eminently clear from the reading of the record that the court
was faced with two mutually destructive versions of the
parties. It
resolved that by following the well-established principles of dealing
with two conflicting versions.
[10]
As indicated earlier there was no direct evidence to identify the
appellant. The court accordingly resorted to the use of
circumstantial evidence to link the appellant to the crime. In this
respect, the court drew the inference that the applicant was
one of
the group of people that robbed the complainant of his belongings,
from the fingerprints which were found on the stolen
items.
The
sentencing
[11]
It is trite that the trial court has the discretion to exercise when
considering the sentence to impose on an accused person
who has been
found guilty of an offence. It is for this reason that the appeal
court will not readily interfere with the sentence
imposed by the
trial court. The power of the appeal court to interfere with the
sentence imposed by the trial court is constrained
by the
consideration that sentencing is the prerogative of the trial court.
There are generally two instances where the appeal
court will
interfere with the sentence imposed by the trial court and that is
where (a) there is a misdirection in the exercise
of the discretion
or (b) where the sentence is disproportionate to the crime.
[3]
[12]
The guidelines to follow when dealing with the issue of sentencing on
appeal is set out in S v Malgas, by Marais JA in the
following terms:
"[12]
A court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach
the question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers
it. To do so
would be to usurp the sentencing discretion of the trial court.' But
an appellate court may interfere with the exercise
by the sentencing
court of its discretion, even in the absence of a material
misdirection, when the disparity between the sentence
imposed by the
trial court and the sentence which the appellate court would have
imposed, had it been the trial court, is 'so marked
that it can
properly be described as shocking, startling or disturbingly
inappropriate.”
[13]
In
S v Sadler
, (2000] ZASCA 13;
2000 (1) SACR 331
(SCA) para
10:
"[10]
[l]mportant to emphasise that for interference to be justified, it is
not enough to conclude that one's own choice of
penalty would have
been an appropriate penalty. Something more is required; one must
conclude that one's own choice of penalty
is the appropriate penalty
and that the penalty is chosen by the trial court is not. Sentencing
appropriately is one of the most
difficult tasks which faces courts
and it is not surprising that honest differences of opinion will
frequently exist. However,
the hierarchical structure of our courts
is such that where such differences exist it is the view of the
appellate Court which
must prevail.”
[14]
In dealing with the issue of the sentence that is disproportionate to
the crime Mpati P, in
S
v Cwele & another
,
[4]
had the following to say:
“
It
is in my view unnecessary to consider the question whether the trial
court misdirected itself when it considered the existence
or
otherwise of substantial and compelling circumstances. This is
because I consider the disparity between the sentence imposed
by the
trial court and that which this court would have imposed, had it been
the trial court, to be so marked that it can properly
be described as
disturbingly inappropriate.”
[15]
It is not every misdirection that would justify interference with the
sentence by the Appeal Court. It must be a material misdirection
in
order for it to vitiate the sentence. It was in this regard stated in
S V PILLAY, by Trollip JA, that:
“
...
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. Such misdirection is usually and
conveniently termed one that vitiates the court's
decision on
sentence."
Evaluation
and Analysis.
[16]
In my view the magistrate court cannot be faulted in the approach it
adopted in dealing with the sentencing of the appellant
for the
reasons set out below.
[17]
The reading of the judgment reveals clearly that the magistrate
applied his mind to all the factors relevant to the consideration
of
sentencing. In this regard, the magistrate noted at the beginning of
this judgment that he was bound by the principles applicable
in
sentencing, which requires the balancing act between the nature and
the seriousness of the offence, the interest of the society
as well
as the personal circumstances of the appellant.
[18]
At the time of the sentencing, the appellant was 28 years old, and
had two children who are looked after by his mother. The
appellant
had one conviction for robbery at the time of sentencing.
[19]
It was argued on behalf of the appellant during the trial that the
magistrate should take into account as substantial and compelling
circumstances the fact that the appellant had spent a considerable
time in custody awaiting trial.
[20]
It seems now well established that the period spent in custody
awaiting trial is a factor to take into account when considering
sentencing, it does not automatically serve as a substantial and
compelling circumstances for the purpose of sentencing. In this
respect the Supreme Court of Appeal in
S
v Radebe and another
,
[5]
held that:
"Such
an approach would take into account the conditions affecting the
accused in detention and the reason for a prolonged
period of
detention.... (T)he test is not whether on its own that period of
detention constitutes a substantial or compelling circumstance,
but
whether the effective sentence proposed is proportionate to the crime
or crimes committed: whether the sentence in all the
circumstances,
including the period spent in detention prior to conviction and
sentencing, is a just one" .
[21]
It is eminently clear from the reading of the judgment that the court
cannot be faulted for the approach it adopted in dealing
with the
period the appellant was awaiting trial. In the present of this case
the court found that in the circumstances of this
case, the period
awaiting trial constituted substantial and compelling reason to
deviate from the minimum sentence. The court further
found that but
for the substantial and compelling circumstances the appellant would
have been sentence to the minimum sentence
of 20 years.
[22]
The sentence of 13 years' imprisonment which was imposed was
influenced by the seriousness of the offence, committed by the
appellant.
[23]
In light of the above, I am of the view that the appellant's
application for appeal stands to fail.
Order
In
the circumstances the appellant's appeal application is dismissed.
________________
Molahlehi
AJ
Acting
Judge of the South
Gauteng
High Court
I
agree and it is so ordered
________________
Senyatsi
AJ
It
is so ordered
APPEARANCES
APPLICANT:
Mr M B Kgagara for the Legal Aid South Africa.
RESPONDENT:
Adv K H Van Rensburg for the Public Prosecutions: Gauteng, Pretoria
[1]
Act number 60 of 2000.
[2]
Act number 51 of 1997.
[3]
[4]
[2012] ZASCA 155; 2013 (1) SACR 478 (SCA).
[5]
2013 (2) SACR 165
(SCA).