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2015
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[2015] ZAFSHC 159
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Mahlangu v S (A92/2015) [2015] ZAFSHC 159 (20 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A92/2015
In
the matter of:
BHEKI
MAHLANGU
Applicant
and
THE
STATE
Respondent
CORAM:
NAIDOO,
J
et
MOKOENA, AJ
JUDGEMENT:
MOKOENA,
AJ
HEARD
ON:
17
AUGUST 2015
DELIVERED
ON:
20
AUGUST 2015
[1]
This is an appeal against sentence only. The appellant was
convicted in the Bloemfontein Regional Court on a charge of
robbery
with aggravating circumstances and sentenced to 10 (ten) years
imprisonment. On 26 November 2012 the sentencing court
granted
him leave to appeal against such sentence.
[2]
The appellant and his two companions robbed NWJ Jewellers situated in
the Loch Logan Waterfront shopping mall in Bloemfontein
on 27 May
2009 at 14h00. They entered the store and ordered the employees
and customers to lie down whereafter they robbed
the shop of
jewellery to the value of R175 272,00.
[3]
The employees pressed the panic buttons and the security guards
arrived at the jewellery shop as the appellant was trying to
leave
the shop. He was then arrested with the result that all
jewellery was recovered. The appellant’s companions
managed to escape.
[4]
The sole issue to be determined by this court is whether the ten year
imprisonment imposed was such as to render the sentence
unreasonably
excessive. Counsel for the appellant argued that the ten year
imprisonment is shockingly inappropriate in that:
(a)
the appellant is a first offender;
(b) the
appellant was 24 years old when he was sentenced;
(c) the shop did
not suffer any loss due to the swift action of the security officers;
(d)
the appellant has a child and had been in custody before he was
released on bail.
[5]
Counsel for the appellant then submitted that in the circumstances,
an eight year jail term should have been imposed.
[6]
The sentencing discretion lies primarily with the trial court.
It is the duty of the trial court to determine which factors
will
influence the sentence. See:
S
v Kibido
1998 (2) SACR 213
(SCA) at 216g-i.
[7]
The appeal court will interfere with sentence where there is material
misdirection from the trial court.
[8]
In
S
v Malgas
2001 (1) SACR 469
(SCA) at 478f-g the following was said:
“
However
even in the absence of material misdirection, an appeal court may yet
be justified in interfering with the sentence imposed
by the trial
court. It may do so when the disparity between the sentence of
the trial court and the sentence which the appellate
court would have
imposed had it been the trial court is so marked that it can properly
be described as “shocking”,
“startlingly” or
“disturbingly inappropriate”.”
[9] The following factors
were considered as mitigating:
(a) The
appellant was a first offender;
(b) He was 24
years when he committed the crime;
(c) He spent
time in custody whilst awaiting trial;
(d) He has a
minor child;
(e)
All the goods were recovered.
[10]
In
S v Vilakazi
2009 (1) SACR 552
at 574 para [58]
Nugent JA remarked as follows regarding personal circumstances of an
accused person:
“
Once
it becomes clear that the crime is deserving of a substantial period
of imprisonment the questions whether the accused is married
or
single, whether he has two children or three, whether or not he is in
employment, are themselves largely immaterial to what
that period
should be, and those seem to me to be the kind of “flimsy”
grounds that Malgas said should be avoided.”
[11] The following
factors were considered as aggravating:
(a) the
seriousness and prevalence of the offence;
(b)
the interest of the community.
[12]
Robbery is undoubtedly one of the most terrible and cruel offences
our society is grappling with. It induces an untold
sense of
fear in the victims. Although it appears that this robbery was
not violent and that the goods have since been recovered,
I am of the
view that in sentencing the appellant, the court
a
quo
considered all relevant factors and the provisions of the
Criminal
Law Amendment Act 105 of 1997
. The trial court clearly
considered that there were compelling and substantial factors
justifying departure from imposing
the minimum sentence of 15 years
imprisonment. It endeavoured to strike a balance between the
personal circumstances of the
appellant and the society in arriving
at an appropriate sentence.
[13]
I am also of the view that in
casu
,
there does not exist a striking disparity between the sentence
imposed by the court a
quo
and the sentence which this court would have imposed if it was
sitting as a court of first instance.
[14]
In the result, I find that the ten year imprisonment sentence is
appropriate in the circumstances.
[15] I propose that the
following order be made:
The
appeal against sentence is dismissed. The sentence of the
appellant is confirmed.
_______________
R.
MOKOENA, AJ
I
concur, and it is so ordered.
____________
S.
NAIDOO, J
On behalf of the
appellant:
Ms. S. Kruger
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On behalf of the
respondent:
Adv. L. Zweni
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/eb