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[2015] ZAFSHC 58
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Moliko v S (A211/2014) [2015] ZAFSHC 58 (19 March 2015)
THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No. A211/2014
DATE:19 MARCH 2015
In the matter between:
KOTSOANE JOSEPH
MOLIKO
...........................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:RAMPAI, J et NAIDOO, J
JUDGMENT BY:NAIDOO,J
HEARD ON:9 FEBRUARY 2015
DELIVERED ON:19 MARCH 2015
NAIDOO J
[1] The appellant and another person
(accused 2) were charged in the Kroonstad Regional Court, with
Robbery with Aggravating Circumstances,
as defined in
section 1
of
the
Criminal Procedure Act 51 of 1977
, read with
section 51
of Act
105 of 1997 (the Minimum Sentences Act). The appellant pleaded not
guilty but was found guilty and sentenced on 9 December
2013 to
twelve years’ imprisonment. The appellant comes before us after
having successfully petitioned the Judge President
for leave to
appeal against his conviction and sentence. Mr JS Makhene appeared
for the appellant in this court and Ms S Giorgi
appeared for the
State.
[2] In the early hours of 4 March 2012,
the complainant, Trynos Makanga, was in the company of the appellant
and accused 2. He was
robbed of his cellular telephone by accused 2
and of his wallet and R450.00 in cash by the appellant who threatened
the complainant
with a knife, inducing him to hand over his wallet
containing the cash. The appellant proffered an alibi defence,
stating that
he was earlier in the evening at a tavern, but had later
gone home to sleep. He alleged that the complainant had mistakenly
identified
him as one of the people that had robbed him. In his Heads
of Argument, Mr Makhene argued strongly against the appellant’s
conviction on the basis that the appellant was not properly
identified by the complainant. However, at the hearing of this
matter,
Mr Makhene advised that he re-considered the totality of the
evidence and reflected on the submissions he had made. After such
reflection, he was unable to sustain his earlier submissions and
conceded that the appellant was correctly identified by the
complainant.
Ms Giorgi agreed that the appellant was properly
identified. The issue of the appellant’s conviction, therefore,
need not
detain us further. I am, in any event, satisfied that the
appellant was correctly convicted.
[3] As regards sentence, Mr Makhene
argued that twelve years’imprisonment was excessive. He
conceded that the Minimum Sentences
Act prescribes a minimum sentence
of 15 years’ imprisonment, but that the sentence imposed ought
to be reduced further.
One of the reasons he cited is that although
the complainant’s wallet was worth R900.00 this was not
mentioned by the trial
court and therefore did not appear to have
been taken into consideration. In effect, therefore, he was sentenced
to twelve years’
imprisonment for taking R450.00 in cash. I do
not agree. In my view, the cash was contained in the wallet, and the
fact that the
trial court did not specifically mention the value of
the wallet should not be interpreted to mean that such value was not
taken
into account. In any event, that is but one factor amongst the
many that the court considered in imposing the sentence that it did.
[4]It is well settled in our law that
an appeal court should interfere with the sentence imposed by a trial
court only if the trial
court has misdirected itself in the
imposition of sentence, resulting in a sentence which is so
inappropriate that it induces a
sense of shock. The principle in this
regard is expressed as follows by Trollip JA in S v Pillay
1977 (4)
SA 531
(A) at p 535 E-F:
"Now the word 'misdirection' in
the present context simply means an error committed by the Court in
determining or applying
the facts for assessing the appropriate
sentence. As the essential inquiry in an appeal against sentence,
however, is not whether
the sentence was right or wrong, but whether
the Court in imposing it exercised its discretion properly and
judicially, a mere
misdirection is not by itself sufficient to
entitle the Appeal Court to interfere with the sentence; it must be
of such a nature,
degree, or seriousness that it shows, directly or
inferentially, that the Court did not exercise its discretion at all
or exercised
it improperly or unreasonably. Such a misdirection is
usually and conveniently termed one that vitiates the Court's
decision on
sentence."
In the case of S v Rabie
1975 (4) SA
855
(A) Holmes JA set out on page 857 the following guiding
principles with regard to interference with a sentence on appeal:
“1. In every appeal against
sentence, whether imposed by a magistrate or a Judge, the Court
hearing the appeal –
(a) should be guided by the principle
that punishment is “pre-eminently a matter for the discretion
of the trial Court”;
and
(b) should be careful not to erode such
discretion: hence the further principle that the sentence should
only be altered if the
discretion has not been “judicially and
properly exercised”.
2. The test under (b) is whether the
sentence is vitiated by irregularity or misdirection or is
disturbingly inappropriate.”
This principle was confirmed by Holmes
JA in S v Giannoulis
1975 (4) SA 867
(A).
[5]In the present matter, the
appellant’s personal circumstances are that he was a 25 year
old unmarried man with no dependants.
He passed grade 10 at school
and was employed at the time of his arrest. He had a previous
conviction for being in possession of
goods reasonably suspected to
be stolen and for which he was sentenced to three years’
imprisonment. At the date of sentencing
in this matter, he had spent
1 year and 9 months in custody.
[6] The trial court balanced the
appellant’s personal circumstances against what it considered
to be aggravating factors,
namely that the crime committed by the
appellant was serious, that he had used a knife to threaten the
complainant and that he
was not deterred from committing crimes by
the three year sentence he had served in respect of the previous
conviction. The court
took into account in the appellant’s
favour the time spent in custody awaiting trial, that the complainant
suffered no physical
injuries, and that there was no evidence of
pre-meditation or pre- planning on the appellant’s part. It is
clear that the
trial court did consider that the personal
circumstances of the appellant were substantial and compelling,
justifying it in not
imposing the prescribed minimum sentence of 15
years’ imprisonment.
[7] I cannot fault the reasoning of the
trial court with regard to sentence. It is also apparent that it gave
proper consideration
to all pertinent circumstances for the purpose
of sentencing, and in the fine balancing act that it was required to
perform, it
imposed a sentence which took account of the interests of
society, the seriousness of the crime and the interests of the
appellant.
[8] I am, therefore, unable to find any
misdirection on the part of the trial court to warrant the
interference of this court in
the sentence imposed in this matter. In
my view the sentence is not inappropriate or so excessive as to
induce a sense of shock.
[9] In the circumstances, the following
order is made:
The appeal against the conviction and
sentence is dismissed.
S. NAIDOO, J
I agree
M. H. RAMPAI, J
On behalf of the Appellant: Mr. J.
S. Makhene
Instructed by: Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the Respondent: Ms S.
Giorgi
Instructed by: The State
BLOEMFONTEIN