About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 189
|
|
Moshata v S (A136/2014) [2014] ZAFSHC 189 (30 October 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: A136/2014
In
the matter between:-
LEBOHANG
MOSHATA
….....................................................................................................
Appellant
and
THE
STATE
…........................................................................................................................
Respondent
CORAM:
VAN ZYL, J
et
TSATSI, AJ
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
13
OCTOBER 2014
DELIVERED
ON:
30
OCTOBER 2014
[1]
This is an appeal against the sentence of the regional magistrate in
Parys. The appellant and co-accused were charged
with two
counts of robbery with aggravating circumstances as defined in
section 1 of the Criminal Procedure Act 51 of 1977 (“the
Act”). The appellant pleaded guilty on both counts.
A plea explanation was handed to court by the appellant’s
legal
representative.
[2]
The appellant was convicted of robbery with aggravating circumstances
on 11 October 2010. He was declared to possess a
firearm in
terms of section 103 of Act 60 of 2000.
2.1
The appellant’s leave to appeal against the sentence only and
condonation for late filing of leave to appeal were granted
on 31
March 2014 by the regional court.
[3]
On 8 May 2010 at or near Vredefort in the Regional Division of Free
State, the appellant and one Seun Selema Ramabodu, who was
accused
number two wrongfully and intentionally, assaulted Boropo Thabe and
Moses Mpafa (“the complainants”).
The appellant
used a knife and inflicted serious injuries on both complainants.
Appellant and accused number two stabbed
Boropo Thabe, helped each
other to search the complainant. They subsequently robbed
Boropo Thabe of his cellphone worth R1 900,00
and R15 cash.
On the same day, appellant and accused number 2, stabbed Moses Mpata,
pushed him to the ground searched him
and robbed him of his
cellphone, driver’s licence and R30 cash. Both appellant
and accused number two were later arrested
by two police officers who
found the stolen items in their possession.
[4]
The issue to be decided in this appeal was whether or not the 15
years sentences on count one and 15 years’ sentence on
count 2,
wholly suspended, handed down against the appellant were appropriate.
4.1
The question was whether the court
a quo
erred and thus misdirected itself in finding that no substantial and
compelling circumstances existed to deviate from minimum sentence.
[5]
The appellant’s counsel submitted that the sentence imposed on
count 2 be set aside and replaced with the following sentence:
10
years imprisonment to run concurrently with the sentence imposed on
count 1.
5.1
Otherwise he further submitted that a shorter sentence did not
guarantee that the appellant would be rehabilitated.
[6]
Counsel for the respondent argued that, it was trite that the appeal
court will interfere with sentence only is of the opinion
that such
sentence was unreasonable, unjust or vitiated by irregularities or
the court
a quo
misdirected itself. Counsel for the appellant referred us to
S
v Kibido
1998 (2) SACR 213
SCA at
216 I – J where Olivier JA said the following:
“…
a
mere misdirection is not by itself sufficient to entitle a court of
appeal 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.”
It
was further submitted on behalf of the respondent that the court
a
quo
considered are relevant factors and
the provisions of the
Criminal Law Amendment Act 105 of 1997
.
The trial court did not find that substantial and compelling
circumstances existed to warrant a lesser sentence.
6.1
The respondent’s counsel submitted that the imposed sentence be
confirmed and appeal be dismissed. He told the court that
the
appellant did not behave like a boy of his age.
[7]
Counsel for the appellant argued that the appellant was still young
and attending school. The appellant showed remorse
by pleaded
guilty. He could still be rehabilitated. The applicant
was a first offender. It was further submitted
on behalf of the
appellant that the court
a quo
erred in suspending the minimum sentence on count 2. The court
a quo
should have ordered that sentence in count 2 run concurrently with
sentence imposed in count 1.
[8]
The court with appellate jurisdiction will interfere with the
exercise of sentencing discretion only if it is of the opinion
that
such sentence is unreasonable, improper, unjust or vitiated by
irregularities (
S v De Jager
1965 (2) SA 626
(AD) at 629A – B).
When
imposing a sentence a court must have regard to the fact that the
imposition of sentence is a matter of judicial discretion.
The
sentencing court should have regard to, the peculiar facts of each
case, the crime and the personal circumstances of the offender
(
S
v Zinn
1969 (2) SA 537
(A) at 540
G).
[9]
Our courts regard crimes involving violence, like robbery, in a
serious light. The crime committed by the appellant is
very
serious and prevalent in society. However in the assessment of
an appropriate sentence, the court must have regard to
the main
purpose of punishment which is deterrence, preventive, reformative
and retribution (see
R v Karg
1961 (1) SA 231
(A) at 236A – B. There are strong
mitigating factors weighing heavily in favour of the appellant.
The appellant
was only 19 years at the time of the commission of the
offence, he was still at school study matric and not working, he
spent 8
months in prison awaiting finalisation of his trial, he was
the first offender, and he was remorseful. The complainant’s
injuries were serious but not substantial.
[10]
In contrast to the mitigating factors are the appellant’s
aggravating factors. Such factors are the nature and
seriousness of the offence and the interest of society. The
complainants were attacked for no reason and stabbed with knives.
The offences were well planned and pre-meditated.
[11]
I have given consideration to the cases cited in both the appellant’s
and respondent’s heads of argument.
It is clear that
considering all the factors the circumstances weigh in favour of the
imposition of reducing the sentence.
In my view the cumulative
impact of all relevant factors constituted substantial and compelling
circumstances to justify deviation
from the prescribed minimum
sentence of 15 years in both count 1 and 2, wholly suspended on
certain conditions. There is
reason for this court to
interfere, which I will therefore do. The rehabilitative
objective of sentencing should prevail
over the retributive and
deterrent objectives thereof. It is my view that 10 year
sentence on both counts running concurrently
will be appropriate in
the circumstances.
[12]
I am of the view that the court
a quo
erred in suspending a minimum sentence wholly. This is in
conflict with the provision of
section 51(5)(a)
which provides that
the operation of a minimum sentence imposed in terms of this section
shall not be suspended as contemplated
in
section 297(4)
of the
Criminal Procedure Act. Even
though we have instituted the
suspended sentence, this is negated by the fact that both sentences
of count 1 and 2 run concurrently.
[13]
I therefore make the following order:
13.1
The appeal as regards sentence succeeds. The sentence of the
court
a quo
is set aside and is substituted as follows:
“
Ten
(10) years imprisonment on each count, to run concurrently with the
sentence imposed on count 1.”
________________
E.
K. TSATSI, AJ
I
agree.
________________
C.
VAN ZYL, J
On
behalf of appellant:Adv. Van Rensburg
Instructed
by:
Jacques
Groenewald Attorneys
KROONSTAD
On
behalf of respondent: Adv. Bontes
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN