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[2014] ZAGPPHC 467
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Mdudi v S (A70/2014) [2014] ZAGPPHC 467 (9 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:
A70/20I4
In the matter
between;
NKOSOHLANGA
MDUDI
........................................................................................................
APPELLANT
and
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGMENT
Date
of Hearing: 26 May 2014
Date
of Judgment: 3 June 2014
KUBUSHI, J
[1] The appellant,
Nbosohlanga Mdudi, was charged before the regional magistrate in
Springs, with one count of robbery with aggravating
circumstances.
The appellant pleaded guilty and was convicted as charged. The trial
court sentenced him to 15 years imprisonment.
He was also declared
unfit to possess a firearm. He is before us, leave to appeal having
been granted on petition to the High Court
against sentence only.
[2] The factual
matrix in respect of the conviction is that the appellant was in the
company of two other assailants when they robbed
the complainants of
their cell phones. The appellant in his plea explanation in terms of
s 112
(2) of the
Criminal Procedure Act 51 of 1977
admitted that he
together with his two accomplices waylaid the complainants and robbed
them of their cell phones. He in particular
grabbed one of the
complainants and one of his accomplices threatened the complainants
with a knife. After robbing the complainants
they ran away. The
complainants pointed them out to the police who gave chase and the
appellant was as a result apprehended. He
was not found in possession
of either the knife or the two cell phones.
[3] The appellant
was charged with robbery with aggravating circumstances read with
s
51
(2) of the
Criminal Law Amendment Act 105 of 1997
. The appellant
was legally represented throughout the trial and was made aware at
the beginning of the trial that
s 51
of the minimum sentences Act was
applicable in respect of the offence of robbery with aggravating
circumstances.
[4]
It is trite that the decision as to what an appropriate punishment
would be is preeminently a matter for the discretion of the
trial
court. The court hearing the appeal should as such be careful not to
erode that discretion and would be justified to interfere
only if the
trial court’s decision is not judicially and properly exercised
which would be the case if the sentence imposed
is vitiated by
irregularity or misdirection or is disturbingly inappropriate. See
S
v Rabie
1
[5]
When considering the appropriate sentence to impose, the trial court
took into account, the nature of the crimes, the interest
of society
and the personal circumstances of the appellant. The trial court,
found, correctly so, that the offence committed by
the appellant was
serious; the offence of robbery with aggravating circumstances occurs
far too frequently and the
modus
operandioi
the
facts in this instance is also common.
[6] The trial court
did not lose sight of the personal circumstances of the appellant: he
was 23 years old at the time of the commission
of the offence; not
married; had no children; had a grade it qualification; was
self-employed he owned a tucbshop and earned approximately
Rl 000 per
month; he spent just over 4 months in custody pending trial. No
previous convictions were proved against him. The trial
court refused
to accept his plea of guilty as showing remorse since he was caught
red handed.
[7] In terms of
s 51
(2) read with
s 51
(3) of the
Criminal Law Amendment Act, a
person
who is convicted of the offence of robbery with aggravating
circumstances and is a first offender should be sentenced to
imprisonment for a period of 15 years unless there are substantial
and compelling circumstances justifying deviation from the prescribed
minimum sentence. Having considered the circumstances of the case in
the light of the well-known triad of factors relevant to sentence,
namely, the nature and gravity of the offence, the interest of
society and the personal circumstances of the appellant as enunciated
in paragraphs [5] and [6] of this judgment, the trial court did not
find any substantial and compelling circumstances which justified
deviation from the prescribed minimum sentence, it therefore imposed
the minimum sentence of 15 years imprisonment.
[8] The appellant’s
contention is that the trial court misdirected itself by imposing the
prescribed minimum sentence. The
contention is based on the following
grounds: the appellant was a first offender; he pleaded guilty and
did not waist the court’s
time; he was not the one who was in
the physical possession of the knife; the complainant was not
injured; and he was not found
in possession of the stolen articles.
[9] The respondent
on the other hand submits that there was no misdirection on the part
of the trial court. The respondent contends
that the fact that there
were two people affected by the crime should be taken as an
aggravating factor since the appellant was
not charged with two
counts of robbery with aggravating circumstances. My view on this
point is that the appellant should not be
prejudiced by the fact that
the prosecutor did not proffer two charges against him. As the matter
stands he is facing only one
charge and sentence should be considered
in respect of that charge alone.
[10] In respect of
the sentence imposed by the trial court, it is my view that the
circumstances of this case render the prescribed
sentence unjust or
disproportionate to the crime, the criminal and the legitimate needs
of the society and should the sentence
be carried out an injustice
would be done, it is indeed so that when viewed individually the
appellant's personal circumstances
cannot be regarded as substantial
and compelling to justify deviation from the prescribed sentence.
However, when considered cumulatively
and balanced against the
circumstances that pertain to the commission of the offence and the
interest of society they are such
that the trial court ought to have
characterised them as substantial and compelling justifying the
imposition of a lesser sentence.
And in this sense the trial court
misdirected itself and the sentence ought to be looked at afresh.
[11] In assessing
the sentence to be imposed in lieu of the prescribed sentence, 1 am
enjoined not to lose sight of the fact that
robbery with aggravating
circumstances is a crime that has been singled out for severe
punishment and I should as such pay due
regard to the bench mark
already set in the Act. In the circumstances, in my opinion, a just
and appropriate sentence should be
imprisonment for a period of 10
years.
[12] I therefore
make the following order:
1. The conviction is
confirmed.
2. The appeal
succeeds and the sentence is set aside and replaced by the following:
“
1.
The accused is sentenced to imprisonment for a period of 10 years.
2. The accused is
declared unfit to possess a firearm.”
E. M. KUBUSHI, J
I concur
S A THOBANE, AJ
Appearances
On
behalf of the appellant: Adv. M J Mogotsi
Instructed by:
PRETORIA JUSTICE
CENTER
FNB Building
2
nd
Floor,
Church Square
PRETORIA 0001
On behalf of the
respondent: Adv C P Harmzen
Instructed by:
DIRECTOR OF
PUBLIC PROSECUTIONS
Presidential
Building
28 Church Square
PRETORIA 0001
1
197S
(4) SA 855
(A) at 057