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[2016] ZAGPPHC 1243
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Mohlabine and Others v S (A551/2015) [2016] ZAGPPHC 1243 (11 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
11/11/2016
CASE
NO: A55/1/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
TSHEPO
MOHLABINE
FIRST
APPELLANT
MOSES
SEROTA
SECOND
APPELLANT
MPHO
MAZIBUKO
THIRD
APPELLANT
SIBUSISO
MBATHA
FOURTH
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
PRETORIUS
J,
(1)
The four
appellants were convicted in the Benoni Regional Court on 16 April
2014 on a charge of housebreaking with intent to steal
and theft.
They were all sentenced on the same date to 10 years' imprisonment
each. The appellants were legally represented throughout
the trial.
(2)
They all applied
for leave to appeal against their respective convictions and
sentences, but the trial court refused to grant leave
to appeal. The
appellants thereafter petitioned the High Court. The petition to
appeal against convictions was refused, but the
petition to appeal
against the sentences was granted.
(3)
Counsel for the
defence, representing all four appellants, argued that a sentence of
10 years' imprisonment on a charge of housebreaking
with intent to
steal and theft is too harsh and induces a sense of shock.
(4)
It is trite that
sentencing falls within the discretion of a trial court and that this
court's right to interfere with a sentence
is limited to where the
court
a quo
materially
misdirected itself or committed an irregularity when considering all
the facts, before imposing sentence.
(5)
The
position was clarified in
S
v Rabie
[1]
where
Holmes JA held:
"1.
In every appeal against sentence, whether imposed by
a
magistrate or a Judge, the Court hearing the appeal
-
(a)
should be
guided by the principle that punishment
is
"pre-eminently a
matter for the discretion of the trial Court";
and
(b)
should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the discretion
has not
been 'Judicially and properly exercised"."
And
in
S
v Khumalo
[2]
Holmes
JA held:
"Punishment
must fit the criminal as well as the crime, be fair to society, and
be blended with
a
measure of mercy
according to circumstances."
(6)
The
triad set out in
R
v Zinn
[3]
is
applicable in all cases. The personal circumstances of the accused,
the offence of which he had been convicted and the interests
of
society are the factors which should be considered in a balanced
manner.
(7)
The first
appellant is 26 years old, unmarried, has two children and was
earning between R200 to R300 per day at a taxi rank. He
has a
previous conviction for possession of ammunition, for which he was
sentenced to 3 years' imprisonment on 13 April 2006.
(8)
The second
appellant is 32 years old, is single with no dependants. He has a
previous conviction for theft and was sentenced to
R1 500 or 3
months' imprisonment suspended for 5 years on 14 June 2005 and a
further conviction for assault for which he was fined
R1 000 or 3
months' imprisonment on 7 December 2009.
(9)
The third
appellant is 26 years of age, is single but is the father of a young
baby. He was earning R300 per day as a street vendor.
He was
sentenced on 28 April 2006 to 8 years' imprisonment on a count of
robbery. He was released on parole on 27 April 2012 and
was still on
parole when the crime in the present case was committed.
(10)
The fourth
appellant is 27 years of age, single, has 3 young children and was
employed at Checkers earning R1 900 per month. He
was sentenced on 23
February 2006 on a charge of theft and the passing of sentence was
postponed for a period of 5 years. This
period had lapsed by the time
of the commission of the crime in the present case.
(11)
It is quite clear
that the court a
quo
had the bare minimum
before him in relation to the appellants when he sentenced them to 10
years' imprisonment. The learned magistrate
seems to have paid lip
service only to the principle of individualisation of the sentences
when he stated:
"Our
high courts have stated that any kind of sentence that is influenced
by the public opinion is inherently flawed and as
such this court
cannot just follow what public opinion is saying, but we will just
mete out the punishment that is balanced and
adequate for the crime
that has been committed, having taken into account the personal
circumstances of each individual accused.
”
[4]
(12)
His judgment on
sentence deals solely with the interests of society and nowhere can
this court find where he had taken the personal
circumstances of each
accused into consideration. Had he done so he would have
differentiated between the sentences imposed on
appellants 1, 2 and 4
and that of appellant 3, who was still on parole when he committed
this crime. There is no indication what
standard of schooling the
appellants had attained, whether they grew up in single parent
households which may have caused their
early introduction to crime.
Appellants 1 and 4's previous convictions are almost 10 years old. It
is clear that all the appellants
were in their youth when they were
previously sentenced.
(13)
It is furthermore
mentioned that the appellants spent at least 9 months in custody,
awaiting trial. Although the learned magistrate
mentions it, it does
not seem that he had taken in into consideration when determining
that 10 years' imprisonment would be the
correct sentence.
(14)
In
S
v Siebert
[5]
the
court held:
"Sentencing
is a judicial function sui generis. It should not be governed by
considerations based on notions akin to onus of
proof. In this field
of law, 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.
An
accused should not be sentenced on the basis of his or her legal
representative's diligence or ignorance.
If
there is insufficient evidence before the court to enable it to
exercise a proper judicial sentencing discretion, it is the duty
of
that court to call for such evidence."
(Court
emphasis)
(15)
It is trite that
although an accused is legally represented the court has a duty to
ensure that all the relevant evidence is available
when sentencing
accused persons.
(16)
The
appellants were found guilty as charged, but according to the
evidence the amount of money stolen was not R90 000, but R15 000.
Most of the other stolen items were recovered and returned to the
complainant. This court cannot find that the punishment in the
present case was based on the
Zinn
trial
[6]
or
that the sentence was
"blended
with
a
measure
of mercy according to the circumstances”
[7]
.
(17)
Therefore this
court finds it necessary to interfere in the sentence. After
considering all the facts, the arguments by counsel
and the
principles set out in the authorities referred to, the court finds
that the sentence is too harsh and should be set aside.
There should
also be a differentiation between the sentences of appellants 1, 2
and 4 and that of appellant 3, who was out on parole
when he
committed this crime.
(18)
In the result the
following order is made:
1.
The sentences
imposed on the four appellants on 16 April 2014 is set aside;
2.
Appellants 1, 2
and 4 are sentenced to 5 years' imprisonment each of which 2 years
are suspended for a period of 5 years on condition
that the
appellants are not convicted of housebreaking with intent to steal or
theft committed during the period of suspension;
3.
Appellant 3 is
sentenced to 8 years' imprisonment of which 3 years are suspended for
a period of 5 years on condition that appellant
3 is not convicted of
housebreaking with intent to steal or theft committed during the
period of suspension;
4.
The sentences
imposed on all the appellants are antedated to 16 April 2014.
I
agree.
Acting
Judge N Davis
Case
number
: A551/2015
Matter
heard
on
: 3 November 2016
For
the
Appellant
: Adv H Steynberg
Instructed
by
: Pretoria Justice Centre
For
the
Respondent
: Adv Maritz
Instructed
by
: Director of Public Prosecutions
Date
of
Judgment
:
[1]
1975(4) SA 855 (A) at 857 D – E
[2]
1973(3) SA 697 (A) at 698 A
[3]
1969(2) SA 537 (AD)
[4]
Page 87 - 88 of the record
[5]
1998(1) SACR 554 (A) at 558i to 559b
[6]
Supra
[7]
Khumalo case (
supra
)