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[2015] ZAGPPHC 565
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Monare v S (A 416/2014) [2015] ZAGPPHC 565 (7 August 2015)
REPUBLIC OF SOUTH
AFRICA
GAUTENG DIVISION
PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO: A 416/2014
DATE: 07 AUGUST 2015
In the matter between:
BUTI JACOBS
MONARE
................................................................................................
APPELLANT
AND
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
MAKUME J
[1] The Appellant was convicted on one
count of robbery with aggravating circumstances and sentenced to 15
years imprisonment on
the 8th March 2013 by the Regional Court in
Pretoria. He was granted leave to appeal against sentence by that
Court.
[2] The facts leading to the conviction
and sentence are that on or about the 18th September 2006 the
complainants were attacked
at their small holding outside Pretoria by
four (4) men carrying firearms and robbed of their belongings namely
jewellery, a revolver
an Isuzu bakkie; cellular phones; and a hunting
knife.
[3] During the ordeal the Appellant who
appeared to be the leader of the group ordered the complainant Ms
Christina Myburgh as well
as Lizzy Blau to undress much to their
humiliation. The two ladies were assaulted and ordered to lie under
the bed and remain there
until the Isuzu bakkie had driven off. It is
not disputed that they were traumatised and humiliated by being left
naked in full
view of other people in the house.
[4] The state proved three previous
convictions against the Appellant two of which were for theft
committed during 1989 and 1990
and one for assault committed in the
year 2004 for which the Appellant was cautioned and discharged.
[5] The Appellant’s personal
circumstances were placed before court these appear from the
Magistrate’s summary on sentence.
The Appellant was at that
stage 41 years old and had one previous conviction which the court
deemed insignificant for purposes
of sentence. It appears that prior
to this conviction the Appellant had stood trial on the same facts
and had been convicted and
sentenced to 18 years imprisonment. On the
31st January 2009 that conviction and sentence was set aside on
appeal by this court.
The appeal court ordered that if the state
deems it fit it could recharge the Appellant on the same facts but
that the trial should
proceed before a different Magistrate.
[6] The Appellant was rearrested and
stood trial from the year 2010 until he was convicted in the year
2013. It is not disputed
that in respect of the first conviction he
had spent a period of over two years in custody and in respect of
this conviction he
spent some 18 months awaiting trial.
[7] The further personal circumstances
of the Appellant are that he has three children, whose ages are not
indicated in the court
record.
[8] The court aquo in arriving at the
sentence of 15 years found that the fact that the Appellant had spent
time in custody for
this matter as well as another matter should not
be taken as substantial and compelling circumstances. The Magistrate
said that
it would be speculating as to whether the Appellant would
have been granted bail because application for bail was never made.
The
court concluded that because of the seriousness of the crime for
which the Appellant had been convicted that the minimum sentence
of
15 years imprisonment was appropriate.
[9] It is trite law that an appeal
court will not interfere with the sentence imposed by the trial court
unless the appeal court
is satisfied that the court below made a
material misdirection or the sentence is disturbingly inappropriate.
[10] In the present matter it is not
argued by the Appellant that the sentence is disturbingly
inappropriate and correctly so. What
is in issue in this appeal is
that the court aquo failed to take into consideration the period that
the Appellant spent in custody
prior to being sentenced as well as
the period he served in the same matter before the Appeal court set
aside the conviction and
sentence and ordered a retrial.
[11] The court aquo having referred to
the matter S v Brophy as well as S v Malgas, concluded that the time
spent awaiting trial
for pre- sentence was over shadowed by the
seriousness as well the prevalence of the offence in the Pretoria
district. The learned
Magistrate accepted the fact that the Appellant
was a first offender and concluded that despite that the crime was
serious and
that it will be in the best interest of society to impose
the minimum sentence of 15 years.
[12] In my view the court a quo over
emphasised the seriousness of the crime and its prevalence and under
emphasised the personal
circumstances of the Appellant and in the
process misdirected itself.
[13] Counsel for the Respondent argues
that S v Vilakazi
2009 (1) SACR 552
( SCA) should be read against the
later decision also of the supreme Court of Appeal in S v Radebe
2013
(2) SACR 165
(SCA). Firstly the two cases cannot be compared when
dealing with the reasonableness or not of a minimum sentence because
the Vilakazi
matter was a rape matter involving a 16 year old child.
The matter of Radebe was for robbery. Secondly the accused in the
Radebe
matter had previous convictions involving theft.
[14] Nuget J A in S v Vilakazi said the
following at paragraph 15: (15) It is clear from the terms in which
the test was framed
in Malgas and endorsed in Dodo that it is
incumbent upon a court in every case before it imposes a prescribed
sentence to assess
upon a consideration of all the circumstances of
the particular case, whether the prescribed sentence is indeed
proportionate to
the particular offence’’'’
[15] It cannot be denied that the
Appellant spent in excess of 2years in custody as a sentenced
prisoner on the same case. I therefore
could not find any reason in
the judgment of the Magistrate dealing especially with that period
when he was sentenced. That period
should have been deducted.
ORDER
[16] (i) The Appeal against sentence is
upheld.
(ii) The sentence of 15 years imposed
upon the Appellant is set aside and substituted by the following:
(a) The accused is sentence to 13 years
(Thirteen years) imprisonment.
(b) The sentence of 13 years is
antedated to the 8 March 2013 in terms of Section 282 of the Criminal
Procedure Act 51 of 1997.
MAKUME A.M.
(JUDGE OF THE HIGH COURT)
I agree
MALULEKE J.
(ACTING JUDGE OF THE HIGH COURT)
Date of Hearing: 28 July 2015
Dated of Judgment: 7th August 2015
Counsel for the Appellant: Adv H. J.
Potgiter Instituted by: H. J. Groenewald Attorneys
656 Alouette Street Pretoria
Tel: 012 345-3966
Counsel for the Respondent: Adv. M.
J. Van Vuuren
Office of the DPP 28 Church Street
Pretoria
Tel: 071 1532917