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[2013] ZAGPPHC 19
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T.M v S (A590/2012) [2013] ZAGPPHC 19 (4 February 2013)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: A590/2012
DATE:04/02/2013
In
the matter between:
TM
.........................................................
…................................
APPELLANT
vs
THE
STATE
...............................................................................
RESPONDENT
Coram:
TEFFO J et HUGHES AJ
JUDGMENT
Delivered
on: 04 February 2013 Heard on: 28 January 2013
HUGHES
AJ
1.
The applicant, T S M, was charged with count 1 housebreaking with the
intent to commit a crime unknown to the state, count 2
and 3 Robbery
with aggravating circumstances. On 19 July 2010 he was found guilty
on all three counts and sentenced to five (5)
years imprisonment in
respect of count 1, fifteen (15) years imprisonment in respect of
count 2 and a further fifteen (15) years
imprisonment in respect of
count 3. The sentence in count 1 and seven (7) years of the sentence
in count 3 were to run concurrently
with the sentence imposed in
count 2. The appellant's effective term of imprisonment being
twenty-three (23) years.
2.
The appellant filed a petition with this court against both his
conviction and sentence. Leave to appeal was granted on 10 August
2011 by, Legodi J and Sapire AJ. In respect of count 1 and 2 leave
was granted on conviction and sentence, whilst in the case of
count 3
leave to appeal was granted in respect of sentence only.
3.
At the commencement of the proceedings an application for condonation
for the late filing of the appellant's heads of argument
was made on
behalf of the appellant. The respondent did not oppose this and in
the interest of justice condonation was granted.
h.
Initially the appellant pleaded not guilty to the offences set out in
counts 1 and 2. In his plea explanation he admitted that
a break-in
took place, that the goods set out in the charge sheet were taken
from the premises of John McDonald and that a firearm
was used,
however he denied that he was present when the incident took place.
During the course of the proceedings, the appellant
submitted formal
admissions in terms of section 220 and therein he admitted having
committed the offences as set out in counts
1 and 2.
5.
Briefly, as regards count 1 the appellant admitted that he broke into
the premises of John McDonald on 21 January 2009 by using
a
screwdriver to remove the window. Further, that he removed the goods
comprising of a mini hi-fi, handbag, and cellphone. He however
denied
having any weapons, more so, a firearm as alleged by the complainant
John Me Donald.
6.
Count 3 is a separate incident that took place on 18 November 2009.
He admitted that indeed the robbery of the shop did take
place, that
during the course of the robbery a hammer was used to injure the
complainant. That the items mentioned in the charge
sheet of R900.00,
airtime and a cellphone were in fact taken and that during the
commission of this offence he was apprehended
by the community.
Memory Mtachi, the complaint in this incident, evidences differed
from that of the appellant, in that the complainant
states that the
assailants had an axe and not a hammer as alleged by the appellant.
7.
From the outset I must point out that both counsel indicated that the
appellant should have been convicted of "housebreaking
with
intent to rob" and not housebreaking with intent to commit a
crime unknown to the state. Both counsel argued that count
1 and 2
were interlinked and that the housebreaking was committed with the
intention to rob the complainant McDonald. I must add
though that
both differed as to whether the appellant had been armed with a
firearm when he robbed the complainant.
8.
The charge as it appears in count 1 is to be read with the provisions
of
Section 262
of the
Criminal Procedure Act 51 of 1977
. Of
importance is
Section 262
(2) which states:
"If
the evidence on a charge of house-breaking with intent to commit an
offence to the prosecutor unknown, whether the charge
is brought
under the statute or the common law, does not prove the offence of
house-breaking with intent to commit an offence to
the prosecutor
unknown, but the offence of housebreaking with intent to commit a
specified offence, or the offence of malicious
injury to property,
the accused may be found guilty of the offence so proven.
9.
The respondent's case against the appellant as regards the robbery
with aggravating circumstances, in count 2, relates to the
fact that
the appellant was armed with a firearm when the robbery, of McDonald,
took place. However, the appellant's version was
that no weapon was
used at all. Counsel for the appellant further argued, that the
complainant had at trial presented two versions
relating to this
firearm. Initially he testified that the firearm was pointed at his
face and the assailant said, "I am going
to shoot you". His
testimony then changed and he stated that the firearm was pointed at
him through the gate and the assailant
said" "I am going to
shoot you, I got a gun".
10.
In light of the facts above it is correct that the conviction should
have been housebreaking with intent to rob, as the intention
of the
appellant was to rob McDonald. See S v Jasat
1997 (1) SACR 489
(SCA).
11.
In my view the discrepancy as regards the firearm is but a minor
issue, what is evident from McDonald's testimony is that in
both of
his accounts he persists that a firearm was used. In the
circumstances I do not believe that McDonald's account as regards
the
firearm is a recent fabrication as alluded to by the appellant's
counsel.
12.
I am therefore satisfied that a firearm was used when the commission
of counts 1 and 2 took place.
13.
I now turn to deal with sentence; both counsel were ad idem that the
sentence of fifteen (15) years imprisonment was appropriate
for count
3, As regards count 2 the respondent submitted that the punishment
metered in this instance was too harsh. The appellant
should have
been considered as a first offender as regards these specific
offences. Though he had a previous conviction of theft
that
conviction dates back to 18/02/2002. Since then he had managed not to
have any brushes with the law. Besides, the appellant
was relatively
young as he was 25years of age when he committed these offences and
as such there was still an opportunity for him
to be rehabilitated.
ik.
The respondent's conceded that counts 1 and 2 should have been taken
as one for purpose of sentencing, as these offences were
closely
linked. Further, that a sentence of ten (10) years should be imposed
for counts 1 and 2 instead of the minimum sentence
of fifteen (15)
years. That the sentence imposed for count 1 and 2 of ten (10) years,
five (5) years thereof should run concurrent
with the sentence in
count 3. Thus the appellant would serve an effective period of twenty
(20) years.
15.
It is prudent to highlight the remarks that are set out in S v TSUNGA
1993 (1) SACR 365
V at 370 B-I, where the Court makes the following
remarks:
"[4]
A judicial officer should not approach punishment In the spirit of
anger, because being human, that will make it difficult
for him to
achieve that delicate balance between the crime, the criminal and the
interest of society which his task and objects
of punishment demand
of him. Nor should he strive after severityf nor, on the other hand,
surrender to misplaced pity, While not
flinching from firmness where
firmness is called for, he should approach his task with a humane and
compassionate understanding
of human frailties and the pressures of
society, which contribute to criminality. It is in the context of
this attitude of mind
that I see mercy as an element in the
determination of the appropriate punishment in the light of ail the
circumstances of the
particular case.
[5]
Therefore, during the sentencing phase, the trial court is then
called upon to exercise its penal discretion judicially and
only
after a careful and objectively balanced consideration of all the
relevant material. Certain guidelines may be laid down in
this
regard. In my view the punishment must firstly be reasonable, that
is, it should reflect the degree of moral blameworthiness,
attaching
to the offender, as well as the degree of reprehensibleness or
seriousness of the offence. Punishment therefore, should
ideally be
in keeping with the particular offence and the specific offender. It
is necessary, secondlyf for the punishment to clearly
reflect the
balance process of careful and objective consideration of ail
relevant facts mitigating and aggravating. The sentence
should
thirdly, reflect consistency as far as is humanly possible, previous
sentences imposed on similar offenders committing similar
offences,
least society should believe that justice was not seen to be done.
[6]
Lastly, the penal discretion is to be exercised afresh in each case,
taking the facts of each case and the personality of each
offender
into account To this end I would add that the trial court does not
impose sentence in vacuum, it to the contrary, certainly
does so
within a certain time frame and at a certain stage in the development
of people of a district or a province or a country
or even a
continent. The criminal court is also an instrument in the hands of
society, applying its laws, reflecting its values
and its moral
indignations at unlawful conduct as well as the negative or harmful
effects thereof on third parties or society itself.
[7]
But in a civilised society punishment also reflects the interest of
the offender himself. The trial court in a criminal matter
then
functions not in a technical laboratory, but as a living instrument,
a vital component of the fabric of society, serving the
interest of
society and all its law abiding members."
I
align myself with the extract above.
16.
I am mindful of the various decisions and the approach to be adopted
when dealing with cases involving the prescribed minimum
sentence.
Even so, a court may be satisfied that substantial and compelling
circumstances exist which justifies the imposition
of a lesser
sentence than the prescribed minimum sentence. In that case these
must be entered on the record and clearly a lesser
sentence will be
imposed. To this end I refer to S v MALGAS
2001 (1) SACR 469
SCA at
18. I concede that the prescribed sentence should not be departed
from lightly and that one should weigh up all the traditional
relevant considerations pertaining to sentence and look at the
factors of a particular case cumulatively before one deviates from
the prescribed sentence.
17.
Having considered the argument advanced and the facts of the matter
at hand I am of the view that this court is in a position
to exercise
its discretion and interfere with the sentence so imposed by the
trial court. The appellant is regarded as a first
offender for
purposes of these offences, is still young and rehabilitation could
change his life around, the previous conviction
is ten (10) years old
and since then he did not have an encounter with the law. In my mind
these weigh in the appellants favour,
as he is clearly
rehabilitative.
18.
In the circumstances I agree with the arguments advanced by the
respondent and as a consequence I make the following order:
18.1.
The charge set out in count 1 is amended to read "House breaking
with intent to commit robbery".
18.2.
The appeal in respect of the convictions as regards count 1 and 2 is
dismissed.
18.3.
The appeal against sentence of all three counts succeeds and is
replaced with that which appears below:
18.3.1.
Count 1 and 2 will be treated as one count for purposes of sentence.
In respect of count 1 and 2 the accused is sentenced
to ten (10)
years imprisonment.
18.3.2.
Count 3 the accused is sentenced to fifteen (15) years imprisonment.
18.3.3.
Five (5) years of the sentence imposed for count 1 and 2 will run
concurrent with sentence imposed in count 3.
18.3.
The accused will serve an effective 20 years imprisonment and in
terms of
Section 282
of the
Criminal Procedure Act 51 of 1977
the
sentence is antedated to the 19th July 2010.
W.
HUGHES
Acting
Judge of the High Court
I
Agree;
M.
J. TEFFO
Judge
of the High Court
Delivered
on: 04 February 2013 Heard on: 28 January 2013
Attorney
for the Appellant: Pretoria Justice Centre Pretoria.
Ref:
254/12 Tel: 012 401 9200
Attorney
for the Respondent: Director of Public Prosecutions Pretoria Ref:
SA128/11 Tel: 012 351 6700