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[2015] ZAGPPHC 248
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Masuku v S (A381/2014) [2015] ZAGPPHC 248 (30 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NUMBER: A
381/2014
DATE: 30 APRIL
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
SPHAMANDLA
DOUGLAS
MASUKU
...............................................................................
APPELLANT
and
THE
STATE
...........................................................................................................................
RESPONDENT
HEARD ON: 13
April 2015
JUDGMENT: 29
April 2015
STRIJDOM AJ
1. This is an appeal
against sentence. The Appellant, a 22 year old male was convicted in
the Regional Court Piet Retief on the
following charges:
1.1. Count 1:
Robbery with aggravating circumstances;
1.2. Count 2:
Robbery with aggravating circumstances;
1.3. Count 3:
Housebreaking with intend to commit a crime unknown to the State; and
1.4. Count 4:
Robbery with aggravating circumstances.
2. On 18 May 2012
the Appellant was sentenced to 15 (fifteen) years imprisonment in
respect of count 1, 15 (fifteen) years imprisonment
in respect of
count 2 and 15 (fifteen) years imprisonment in respect of count 3 and
4. Count 3 and 4 was taken together for purpose
of sentence.
3.
The Court a
quo
ordered
that the sentence in counts 3 and 4 should run concurrently with the
sentences on count 1 and 2. The effective term of imprisonment
was
thirty (30)years.
4.
Leave to appeal was refused by the Court a
quo
.
Subsequently leave to appeal was granted by the High Court.
SENTENCE:
5. The aspects
placed in dispute by the Appellant can be enumerated as follows:
5.1. It is submitted
that the trial court erred in over-emphasising the seriousness of the
offences which the Appellant has committed
and the interest of the
society whilst the personal circumstances of the Appellant were
under-emphasised. The trial court also
erred as the sentences is
shockingly harsh and induces a sense of shock.
5.2. It is further
submitted that the trial court has failed to carry out its duty to
make sure that sufficient evidence is placed
before it so that it can
carry its sentencing discretion judicially.
5.3.
It was contended by counsel for Appellant that the Court
a
quo
did
not give sufficient effect to the cumulative effect of the sentences.
5.4.
It was further contended that the Court a
quo
did
not consider the time period that the Appellant spent in custody
awaiting trial in this matter.
6. The personal
circumstances of the Appellant are as follows:
6.1. He was 22 years
old.
6.2. He was
unemployed.
6.3. He is not
married and has no children.
6.4.He went to
school up to standard 7.
6.5. Both his
parents have passed away.
6.6. He has spent
one year and six months in custody awaiting trial.
6.7. Almost all the
robbed items were recovered by the complainants.
7. The aggravating
factors to be considered are as follows:
7.1. The Appellant
was convicted of serious offences;
7.2. Violent crimes
are rife and prevalent in the country;
7.3. The complainant
in count 3 and 4 was attacked at the privacy of his home;
7.4. The Appellant
used a dangerous weapon (knife) to threaten and to stab the
complainants;
7.5. The Appellant
did not show remorse;
7.6. The Appellant
has previous convictions for theft, housebreaking and assault;
7.7. He has
committed these present offences whilst still serving sentence in the
above cases after being released under correctional
supervision.
8. The provisions of
Section 51 (2) of Act 105 of the
Criminal Law Amendment Act 105 of
1997
are applicable.
8.1.
Section 51
(2)
of the
Criminal Law Amendment Act 105 of 1997
provides that:
"Notwithstanding
any other law but subject to subsections (3) and (6), a Regional
Court or a High Court shall sentence a person
who has been convicted
of an offence referred to in -
(a)
Part 11
of Schedule 2, in the case of a first offender, to
imprisonment for
a
period
not less than 15 years
."
9.
The Court a
quo
was
of the view that the personal circumstances of the Appellant does not
constitute substantial and compelling circumstances to
deviate from
the minimum prescribed sentence. There was no contention by counsel
for the Appellant that substantial and compelling
circumstances
exist, to deviate from the minimum sentence.
10.
It
was stated in
S
v
Malaas
2001
(2) SACR 469
(SCA) at p 481 E-F
that:
"the
specified sentenced are not to be departed from lightly and for
flimsy reason, speculative hypothesis favourable to the
offender
under sympathy aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the
legislation,
marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded
."
11.
In
S
v
Vilakazi
2009
(1) SACR 522
SCA
the
court held as follows:
"That
in cases of serious crime the personal circumstances of the offender
necessarily receded into the background. Once it
was clear that a
substantial jail term was appropriate, questions of whether or not
the accused
was
married,
or employed, or how many children he had
,
were
largely immaterial. However, they remained relevant in assessing
whether the accused was likely to offend again."
12.
It was contended by counsel for the Appellant that the Court a
quo
did
not consider the time period that the Appellant spent in custody
awaiting trial.
13. 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. The test is not whether on
its own the period of detention constituted
a substantial and
compelling circumstances but whether the effective sentence proposed
was proportionate to the crimes committed.
See:
S
v Radebe and Another
2013 (2) SACR 165
SCA
14.
It was also submitted by counsel for the Appellant that the Court a
quo
did
not give sufficient effect to the cumulative effect of the sentences.
15.
The Court a
quo
ordered
that the sentence in count 3 and 4 should run concurrently with the
sentence in count 1 and 2. In my view the Court a
quo
sufficiently
considered the cumulative effect of the sentence.
16. It is trite that
a Court of Appeal has limited powers to interfere with the sentence
imposed by the Trial Court.
In
S
v Nkosi
2011 (2) SACR at
492 SCA
the issue of consideration of an appeal against sentence was again
restated as follows:
"It
should be re-iterated that sentencing is pre-eminently a matter for
the discretion of the Trial Court and that this Court
does not have
an overriding discretion to interfere unless the sentence imposed by
the Court below are vitiated by irregularity
or misdirection or are
disturbingly inappropriate
."
17.
In my view the Court a
quo
was
correct to impose the minimum prescribed sentence as no substantial
or compelling circumstance exist to deviate from the minimum
sentence. I am also not convinced that insufficient evidence was
placed before the Court a
quo
regarding
the personal circumstances of the Appellant.
18.
Having regard to the cumulative effect of all the factors pertaining
to sentence, I am of the view that the sentence imposed
by the Court
a
quo
is
not shockingly heavy or excessive, nor disproportionate to the nature
and seriousness of the crime, the criminal and the interests
of the
society.
19.
The Court is not satisfied that the sentence imposed has been
vitiated by any material misdirection. In my view the Court a
quo
properly
exercised its judicial discretion.
ORDER:
20. The following
Order is granted:
20.1. The Appeal
against sentence is dismissed.
J J STRIJDOM
ACTING JUDGE OF THE HIGH COURT
PRETORIA
DATE:
I
agree
KUBUSHI
J
JUDGE OF THE HIGH
COURT
PRETORIA
DATE:
APPEARANCES:
On behalf of the
Appellant: MB Kgagora
Legal Aid
On behalf of
Respondent: Adv L More
Director Public
Prosecutions