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[2015] ZAGPPHC 515
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Mashishi and Another v S (A734/14) [2015] ZAGPPHC 515 (17 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC OF SOUTH AFRICA
17/7/15
CASE NUMBER: A734/14
In the matter between:
AUBREY
MASHISHI
First Appellant
THABISO
MOTSATSI
Second Appellant
and
THE
STATE
Respondent
JUDGMENT
JANSE
VAN
NIEUWENHUIZEN
J
[1] The appellants were convicted on a
charge of theft and a charge robbery with aggravating circumstances.
In respect of
the theft, the appellants received a sentence of
six months imprisonment and in respect of the robbery, the prescribed
minimum
sentence of 15 years imprisonment was imposed.
[2] The appellants appeal against both
conviction and sentence.
THEFT AND SIX MONTHS IMPRISONMENT
[3] Mr Matlapeng, counsel for the
appellants, conceded from the outset that the court a
quo
did
not err in convicting the appellants on the charge of theft. He,
furthermore, conceded that the sentence of six months imprisonment
is
an appropriate sentence. Having regard to the record, the concessions
were well made.
ROBBERY WITH AGGRAVATING
CIRCUMSTANCES
[4] The only issue in dispute in respect
of the robbery charge was the identification of the appellants.
[5] In respect of identification, the
court a
quo
aptly analysed the evidence presented by
the state as follows:
"As far
as
count
2 is concerned,
the whole
matter
revolves
around
the
question
of identity
of the
perpetrators. It is not
in dispute that
a
robbery
took place
at the house of
Mr Mahoza
on the date in
question.
It is not in
dispute
that
candles
were used to provide
light.
From
the evidence
it
appears
that
the light
created by
the candles
was
sufficient
to
distinguish
people
from
each
other.
It
was
sufficient
for
Ms
Mghemo
to
find money.
It
was
sufficient
for the perpetrator
to
locate
the cell phone
of Mr Alpheus.
·
Lighting
was a/so
sufficient
for
them to
see
that one of the perpetrators carried
a
firearm.
One must
also bear
in mind
that
clearly
this
incident
did not last just
a
minute.
I
do accept
that it
was something
that happened
quickly,
in
the sense that robbery
do not
normally
take hours
in those
circumstances.
One must
bear
in mind
that
the people
were seen
where they
stood
in
the door.
They
ordered
them
to go
down
to the ground. There was conversation.
Ms
Mghemo peeped
as
well as did
Ms Zita
and most importantly
Ms
Zita
was the one that indicated
that she
knew
both
accused
1 and
accused
2
prior
to the incident.
Mr
Mahoza
was honest
as
far
as
identification
was concerned
as he
only
actually identified
accused
2
the person
carrying
the firearm
in
court,
whereas
he
could
easily have indicated
that
accused
1 was the
other
perpetrator
which he did not.
I
find that circumstances
that prevailed
at
the time
of the robbery
was indeed
favourable
for
the witnesses
to make
a
reliable
identification
of
the assailants."
[6] Having perused the record, I agree
with this finding. In the premises, the appeal against conviction on
the robbery charge falls
to be dismissed.
15 YEARS IMPRISONMENT
[7] Mr Matlapeng referred to the
following mitigating circumstances in his heads of argument:
"a)
both
the Appellants were employed
before
the incident;
b)
both
of them
are
first
offenders;
c)
the
complainant
in
count
2
and
his
family
members
did not
sustain
physical injuries
during
the robbery;
d)
the
appellants
were severely
beaten
up by
members
of
the community
at
the time they
were apprehended. The Second Appellant
had
to be
taken
to
a
doctor.
e)
both Appellants
spent
more
than
a
year
in custody
awaiting
trial."
[8] Mr Matlapeng submitted that the
above circumstances, cumulatively considered, constitute substantial
and compelling circumstances
as contemplated in the
Criminal Law
Amendment Act, 105 of 1997
justifying a deviation from the prescribed
minimum sentence of 15 years imprisonment.
[9] Mr Maritz, counsel for the state,
submitted that the court a
quo
did not misdirect itself in
imposing the prescribed minimum sentence and referred,
inter
alia,
to the following aggravating circumstances in his
heads of argument:
"15.1
The Appellants were armed
with
a
firearm
(illegal)
which
was
cocked,
ready for use during the robbery.
15.2
A
shot
was fired
at
Mr
Mahoza
when he followed
Appellants.
The shot missed
and
penetrated
the shack
wherein his family
was at
that
time, putting their
lives
in
danger
as well.
15.3
It can be accepted
that
the
incident
was traumatic
for the whole
family.
Ms Mghemo
testified
that
Alpheus,
whose cellphone
was robbed,
did not
attend court
because
he
was still
traumatised.
15.4
It is
clear that
the family
was not
well off and that the loss
of
the money
would have
affected
them
negatively.
15.5
The appellants
showed
no
remorse.
15.6
There must
have
been
a
degree
of planning,
because
Mr
Mahoza
saw
them at his
workshop previously.
The appellants
knew
accused
3
who
stayed
in the area
and
the
night
of the robbery
accused
3
was locked
in his house."
[10] I take due cognisance of the
gravity of the offence. Mr Mahoza and his wife were robbed at
gunpoint of their hard earned money
in the sanctity of their house.
Their daughter and her baby were in the room, next to the room where
the robbery occurred. It must
no doubt have been a horrific
experience. The interest of society demands that people who act as
callously as the appellants be
severely punished. The legislator
deems crimes, as the one perpetrated by the appellants, in such a
serious light that it promulgated
the Act prescribing minimum
sentences for robbery with aggravating circumstances.
[11] A court would, however, fail in its
duty, if the personal circumstances of an accused is not properly
considered and viewed
holistically with the circumstances in which
the crime was committed.
[12] The fact that the appellants are
both first offenders and spend more than a year in custody awaiting
trial, does, in my view,
constitute substantial and compelling
circumstances justifying a deviation from the minimum sentence.
[13] Having regard to the factors and
circumstances mentioned
supra,
I am of the view that a
sentence of 10 years imprisonment will be an appropriate sentence.
ORDER
I propose the following order:
1.
The appeal against conviction and sentence in respect of the
theft
charge is dismissed.
2.
The appeal against conviction in respect of the robbery with
aggravating circumstances charge is dismissed.
3.
The appeal against the sentence of 15 years imprisonment succeeds.
4.
The sentence is set aside and substituted with the following:
"In respect
of account
2 the
accused
is
sentenced
to
10
years
imprisonment."
5.
The sentence is antedated to 18 March 2014.
JANSE VAN NIEUWENHUIZEN
JUUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
I agree.
MOLOTO
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
(ACTING)
GAUTENG DIVISION, PRETORIA
It is so ordered.
ADVOCATE FOR THE APPELLANT
ADVOCATE R S MATLAPENG
Pretoria Justice Centre 2nd Floor,
FNB Building 206 Church Street Pretoria
0001
ADVOCATE FOR THE RESPONDENT
ADVOCATE GJC MARITZ
The Director of Public Prosecutions
Private Bag X300
Pretoria 0001
DATE OF HEARING: 11 May 2015