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
>>
2015
>>
[2015] ZAGPPHC 313
|
|
Mokoena v S (A569/2014) [2015] ZAGPPHC 313 (3 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG: PRETORIA
CASE
NO.: A569/2014
DATE:
3 MAY 2015
NOT
REPORTABLE
In the matter
between:
MR
MOKOENA
.......................................................................................................................
APPELLANT
and
THE
STATE
...........................................................................................................................
RESPONDENT
JUDGMENT
1. The present
matter came on appeal before this court against the sentences imposed
upon the accused on 1 August 2008 by Victor
J sitting in the circuit
division for the Vereniging district.
2. The accused was
charged with four counts namely murder, robbery with aggravating
circumstances, the unlawful possession of a
firearm and the unlawful
possession of ammunition. He was convicted in respect of all four
counts and sentenced to life imprisonment
in respect of the murder,
15 years imprisonment in respect of the robbery and four years
imprisonment in respect of each of the
unlawful possession charges.
3. The events which
led to the charges against the appellant are briefly the following:
at approximately 03:30 in the early hours
of 4 March 2007 the
deceased, Mr Donald Mona, and his friend Mr Tsepo Mofokeng, were on
their way to a Tavern in Orange Farm in
the district of Vereniging to
buy liquor. They had attended a party and wanted to buy more liquor.
On their way back to the party
the appellant confronted them and told
them to lie down on the ground. The appellant was armed with a pistol
and pointed it at
them. It is clear that he intended to rob the
deceased and Mr Mofokeng. The appellant bent over Mr Mofokeng in
order to search
him. The next moment Mr Mofokeng kicked out at the
appellant and struck him on the leg. This caused the appellant to
fall down
whereupon Mr Mofokeng grabbed him around the upper part of
his body. A struggle ensued with both of them still on the ground. At
this point the appellant started to get up from where he was laying.
The next moment the appellant discharged a shot from his firearm
which struck the deceased which was some 4 m away. The deceased
managed to move away from the scene.
4. When the shot was
discharged Mr Mofokeng let go of the appellant. The appellant asked
him what he had in his pockets whereupon
Mr Mofokeng responded that
he had a cellphone and money with him. The appellant then took Mr
Mofokeng's cellphone and money and
moved away. Mr Mofokeng then moved
in the direction of where the party was and on his way found the
deceased lying on the ground.
He was in a bad state and his upper
body on the left side was covered in blood. The deceased died a short
while later as a result
of a gunshot wound in his chest.
5. The state proved
one previous conviction for theft for which the appellant was
convicted during may 2001. The sentence for that
conviction was
postponed for a period of three years. The appellant was never called
upon to appear again to receive a sentence.
6. The appellant was
22 years of age when he committed the present crimes. He was
unmarried and had one child, a boy who was 3 years
old at the time of
the trial. He worked as a builder earning approximately R1 500 per
month which he used to support his mother
and his child. He never
knew his father and left school when he was in grade 10. The
appellant was incarcerated as an awaiting
triallist for one year and
four months.
7. The appellant's
evidence that he was not sober at the time of the incident was not
challenged by the state. In aggravation of
sentence the State
presented the evidence of the deceased's wife. She and the deceased
had one child and she was struggling to
make ends meet.
8. As the murder of
the deceased was committed by the appellant whilst he was committing
the offence of robbery with aggravating
circumstances as defined in
section 1
of the
Criminal Procedure Act, 1977
, the prescribed
sentence, unless substantial and compelling circumstances are
present, is life imprisonment. The trial court found
no such
circumstances to be present.
9. In order to find
whether substantial and compelling circumstances are present, the
factors traditionally relevant to sentence
must be considered. These
are the legitimate needs and interests of the accused as well as of
the society and the nature of the
crimes and the circumstances
attending its commission. The court must consider all these factors
and all the facts of the particular
case, in conjunction. These
factors must also be considered in light of the fact that the
legislature indicated that the sentence
which should normally be
regarded as appropriate for offences of this nature, if no
substantial and compelling circumstances are
present, is one of life
imprisonment. It is only when the cumulative effect of the
circumstances to which I have referred above,
are such that it would
be unjustifiable to impose such a sentence or, to put it differently,
if the prescribed sentence would be
disproportionate to the
cumulative effect of the crime, the accused and the lawful interests
of the community, that a lesser sentence
should be imposed.
10. The murder of a
fellow human being is an offence of the most serious kind. Robberies
of the kind that was committed in this
case are daily occurrences in
our country and it often ends with a victim being killed. Communities
live in fear and cannot move
about freely, especially after dark. The
loss caused by the death of the deceased in the present matter was
described by his widow
and what makes this act even more deplorable
is the fact that it was done for a mere R40 and a cellphone worth a
few hundred rand.
11. On the other
hand, there are mitigating circumstances present. Firstly, the
appellant was a young person of 22 years of age.
The circumstances
relating to his previous conviction are not known but it could not
have been serious if regard is had to the
fact that no sentence was
imposed. Furthermore, the appellant was intoxicated when he robbed
the deceased and Mr Mofokeng. Also
of importance is the fact that the
appellant was suddenly grabbed by Mr Mofokeng and that they wrestled
whilst on the ground. It
was during this process that the shot was
fired at the deceased.
12.The firearm was
loaded, presumably only with one bullet, but the clear impression
created by the facts of the case is that the
sudden attack on the
appellant and the wrestling with him on the ground, together with his
intoxicated state and the fact that
he acted alone, contributed to
him discharging the shot in the direction of the deceased. This is
not in the least to say that
any blame is attributable to the actions
of Mr Mofokeng, quite the contrary, but it does, in my view, to some
degree diminish the
moral reprehensibility of the appellant's deed.
There is furthermore nothing to indicate that the appellant is not a
good candidate
for rehabilitation. For such to occur a sentence must
be imposed which allows for the appellant to have hope of one day
entering
society as a reformed person. These factors, in conjunction
with his young age and the fact that he was for all practical
purposes
a first offender and the fact that he had been incarcerated
as an awaiting trial prisoner for one year and 4 months, in my view
constitute substantial and compelling circumstances allowing for a
lesser sentence to be imposed than the sentence of life imprisonment.
In my view the aforesaid factors are such that even if weighed with
the aggravating circumstances, it would not be just and justifiable
to impose upon the appellant the most severe sentence which can
possibly be imposed in our country. It is in this regard that I
find
that the trial court had erred and which allows for this court to
interfere with the sentences imposed.
13. Having come to
this decision all the aforesaid factors must again be considered in
order to decide what a just and justifiable
sentence would be. Having
regard to the nature of the crimes, the interests of the accused and
of society, and the circumstances
of this particular case, I propose
that the appeal succeeds and that the following order be made:
1. The appeal
against sentence succeeds and the sentences imposed are set aside and
replaced with the following:
1.1 in respect of
count 1 the accused is sentenced to 15 years imprisonment;
1.2 in respect of
count 2 the accused is sentenced to 10 years imprisonment;
1.3 in respect of
count 3 the accused is sentenced to 4 years imprisonment;
1.4 in respect of
count;
;
the accused is sentenced to 4 years imprisonment.
2. The sentences in
respect of counts 2, 3 and 4 shall be served concurrently with the
sentence in respect of Count 1.
3. The sentences
imposed above is backdated to the date on which the trial court
imposed the original sentences.
C.P. RABIE
JUDGE OF THE HIGH
COURT
I
concur
M.F.
LEGODI
JUDGE OF THE HIGH
COURT
I concur
R.G. TOLMAY
JUDGE OF THE HIGH
COURT