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[2016] ZAGPPHC 946
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Mofokeng v S (A622/15) [2016] ZAGPPHC 946 (17 November 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC OF SOUTH
AFRICA
CASE NO: A622/15
17.11.2016
In the matter between:
NEO
MOFOKENG
Appellant
and
THE
STATE
Respondent
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1] The appellant pleaded
guilty to one count of robbery and was convicted accordingly. A
sentence of 12 years imprisonment was
imposed by the court a
quo.
[2] The appeal is only
against sentence.
[3] Mr van As, counsel
for the appellant, relying on the judgments in
S v Ma/gas
2001
(1) SACR 469
SCA and
S v Pi/lay
1977 (4) SACR 531
A, correctly
referred to the principle applicable in considering an appropriate
sentence on appeal, to wit: sentencing is pre-eminently
a matter for
the discretion of the trial court and a court of appeal will only
interfere if the trial court materially misdirected
itself or where
the sentence imposed is shockingly inappropriate.
[4] The appellant pleaded
guilty to the robbery of R 190, 00 cash and jewellery of an unknown
value. In his pea explanation he stated
that he came into contact
with the complainant whilst looking for work. He accosted the
complainant in her house and tied her hands
with a charger cord in
order to rob her of the items mentioned
supra.
The fact that
the complainant was robbed in the sanctity of her home contributes to
the serious nature of the crime.
[5] The appellant is a 23
year old unemployed male. He is not married and has no children.
[6] In imposing 12 years
imprisonment, the court a
quo
placed a lot of emphasis on the
fact that the appellant has two previous convictions, to wit: in 2008
he was convicted on a charge
of housebreaking with the intent to
steal and theft and sentenced to 4 years imprisonment wholly
suspended for 5 years; in 2010
he was convicted on a similar charge
and sentenced to 7 years imprisonment of which 2 years were suspended
for 5 years, resulting
in an effective sentence of 5 years
imprisonment.
[7] The appellant was
released on parole on 23 October 2012 and committed the present
offence on16 July 2013.
[8] The court a
quo
found that the previous sentences did not deter the appellant and
taking all the other relevant factors into account imposed the
12
years imprisonment sentence.
[9] Although the
appellant has two previous sentences, his youth, the fact that the
complainant was not injured, the fact
that the appellant pleaded
guilty and the relative small value of the stolen items, renders the
sentence imposed by the court a
quo,
in my view, shockingly
inappropriate.
[10] In such event, this
court may interfere with the sentence and impose a sentence that is
proportionate to the nature of the
crime and the circumstances under
which it was committed.
ORDER
In the premises, I
propose the following order:
1. The appeal against
sentence is upheld.
2. The sentence of 12
years imprisonment is set aside and substituted with the following
sentence:
"The accused is
sentenced to 8 years imprisonment. In terms of section 280 of the
Criminal Procedure Act, 51 of 1977 the court
orders that this
sentence is to run concurrently with the sentence the accused is
presently serving."
3. The sentence is
ante-dated to 17 February 2014.
___________________________
E VAN NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I agree.
____________________________
N DAVIS
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
It is so ordered.
APPEARANCES
Counsel for the
Appellant: Advocate F Van As
Instructed by: Legal Aid
South Africa
Counsel for the State:
Advocate Jacobs
Instructed by: The State