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[2015] ZAFSHC 208
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Morake v S (A142/2015) [2015] ZAFSHC 208 (15 October 2015)
THE
HIGH COURT
OF SOUTH
AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No. A 142/2015
In the
matter between:
MOLAHLELI
JOSEPH
MORAKE
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA JP
et
NAIDOO, J
JUDGMENT
B
Y:
NAIDOO,J
HEARD
O
N:
5 OCTOBER 2015
DELIVERED
ON:
15 OCTOBER 2015
NAIDOO
J
[1] The
appellant was charged in the Regional Court, Welkom with one count of
Robbery with Aggravati ng Circumstances. He pleaded
not guilty to the
charge but was convicted as charged on 27 March 2015 and was
sentenced to Fifteen (15)
years'
imprisonment, The appellant is before us on appeal against his
sentence. The trial court refused his application to appeal
against
his conviction and granted leave to appeal against sentence only. He
petitioned the Judge President of this Division for
leave to appeal
against conviction but was unsuccessful in that application. Ms S
Kruger appeared for the appellant and Mr FJ Pienaar
appeared for the
State in this court.
[2] A
brief summary of the facts in this matter is that on 21
February 2014, at about 19h45 in the evening, the complainant,
was
stopped by a person who turned out to be the appellant. The latter
asked the complainant to give him a lift to Ventersburg,
which the
complainant agreed to do after they discussed that the complainant
would drop the appellant off at the junction of Ventersburg
and
Hennenman. The complainant and the accused then stopped at a garage
in Hennenman to buy airtime, where the complainant had
the
opportunity to observe the appellant as that garage was well lit. The
appellant then requested the complainant to drop him
off at another
destination to the one originally agreed upon, which the complainant
agreed to, for a fee. The appellant paid the
complainant and the
complainant proceeded to this place, being the junction between
Virginia and Hennenman. When they arrived there
the appellant again
changed his mind and asked the complainant to drop him off near a
farm called Kleinfontein, which the complainant
again agreed to. When
they arrived at this latter mentioned destination, the appellant
refused to get out of the car, but instead
attacked the complainant,
dragged him out of the car and robbed the complainant, at knife
point, of his motor vehicle and R450.00
in cash. The complainant
sustained a cut on his hand while he was struggling with the
appellant for the knife. He was also injured
on his ribs during that
scuffle.
[3] The
appellant appears to have had some problems with the car and enlisted
the help of someone at a tavern to start the vehicle,
which was done.
The police arrived at the tavern and asked about the owner of the
vehicle, after which the appellant drove off
with the person who
had repaired the vehicle. A high speed chase ensued, the appellant
almost ran the police off the road,
thereafter lost control of the
vehicle and collided with a fence. He fled the scene but was
subsequently arrested and pointed out
by the complainant at the
police station.
[4] The
appellant's version is that he was at a tavern when a person asked
him to get someone to help to start a car outside the
tavern. The
police arrived and the person that asked him for help left with the
police in that same car. He was later walking home
when the police
arrested him. He denied taking the complainant's vehicle or money. He
said the complainant had falsely implicated
him in this matter as a
result of a quarrel they had over a woman, fourteen years prior to
the incident in this matter. His version
was rejected by the court,
resulting in his conviction.
[5] I
turn now to deal with the issue of sentence. The grounds that
the appellant relies on in his appeal are, firstly, that
the trial
court erred in finding that no compelling and substantial
circumstances exist to justify it in deviating from imposing
the
prescribed minimum sentence and, secondly, that the sentence imposed
is shockingly inappropriate, in that it was out of proportion
to the
accepted facts of the case and the personal circumstances of the
appellant.
[6] The
appellant's personal circumstances placed on record are that he is a
forty (40) year old married man who has two children
aged 12 years
and 7 years. He resided, at the time of his arrest, with his wife,
sister and two children in Ventersburg. He was
self-employed and ran
a tuck shop, supporting his family with his earnings from the tuck
shop. His highest educational qualification
is grade 11. The
appellant is not a first offender, and I pause to note that the
appellant has at least six previous convictions
and was
sentenced to varying periods of imprisonment in respect of each
conviction. In this matter, he spent four months in custody
awaiting
trial from the date of his arrest, before the charge was withdrawn.
The charge was reinstated in August 2014 and he spent
another six
months in custody until he was convicted in this matter in March
2015.
[7] It is
generally accepted 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.
This principle was succinctly stated in the case of
Gregory
Lex
Blank
v The
State
1995(1) SACR
62
(A),
where the court said:
"It
has repeatedly been emphasized by this court that the imposition of
sentence is pre-eminently a matter falling within the
discretion of
the trial judge and that a court of appeal can interfere only where
such discretion was not properly exercised.
One of the ways in
which it may be shown that a trial court's discretion was not
properly exercised is by pointing to a misdirection
in the court's
reasons for sentence."
See
S
v
Pillay
1977
(4)
SA
531
(A)
at
p 535
E-F
and
S
v
Rabie
1975
(4) SA
855
(A),
which
we were referred to by Mr Pienaar, the respondent's counsel. In the
Rabie case, 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 also followed by Holmes JA in
S
v
Giannoulis
1975
(4) SA 867 (A).
[8] The
trial court balanced the personal circumstances of the appellant
against the aggravating circumstances that it considered
were present
in this matter, namely, that the offence is very serious and that the
interests of society demanded harsher
sentences in
such matters. It is
apparent from the reasons for
sentence that the trial court also took
into account the fact that the appellant's previous convictions did
little to deter or
rehabilitate him. The court correctly pointed out
that no sooner was he released from prison after serving a sentence,
he would
re-offend and go back to prison. His sentences ranged from
four months to seven years' imprisonment. By way of example, on 22
April
2008 he was released on parole supervision until 5 November
2009. He committed another offence three months after his release on
parole, for which he was sentenced to four years' imprisonment. The
current offence appears to have been committed one year after
he
served the latter mentioned sentence.
[9] It is
clear that the trial court thoroughly interrogated the mitigating as
well as the aggravating factors relevant to this
case. I cannot find
that that the court over-emphasised the aggravating factors or
attached too little weight, to the personal
circumstances of the
appellant, as argued by Ms Kruger in her Heads of Argument. A
sentencing court is required to perform a fine
balancing act, in
considering competing factors, to arrive at a just and appropriate
sentence. In my view, the trial court in this
matter properly
balanced the seriousness of the offences, the interests of society
and the interests of the appellant. I cannot
find any misdirection on
the part of the trial court which warrants the interference of this
court in the sentences that it imposed.
[10] In
the circumstances, the following order is made:
10.1
The appeal against sentence is dismissed.
10.2
The
conviction
and sentence
of the
appellant
are confirmed.
_______________
NAIDOO,
J
I agree
_______________
MOLEMELA,
JP
On behalf
of the Appellant:
Ms S Kruger
Instructed
by:
Bloemfontein
Justice
Centre
Ground
Floor, Office
No
11
2nd
Floor,
St Andrew
Centre
St
Andrew
Street
Bloemfontein
On behalf
of the Respondent: Mr FJ Pienaar
Instructed
by:
The State
Bloemfontein