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[2013] ZAGPPHC 380
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Makgalo and Another v S (A481/2013) [2013] ZAGPPHC 380 (18 November 2013)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: A481/2013
DATE: 18 NOVEMBER 2013
In
the matter between:
MOJELA THABISO
MAKGALO
………………………………
FIRST
APPELLANT
JOSEPH
NGOEPE
…………………………………………..
SECOND
APPELLANT
And
THE
STATE
……………………………………………………………
RESPONDENT
JUDGMENT
Date
of Hearing:
5 Oc
tober
2013
Date of Judgement
:
18/11/2013
KUBUSHI,
J
[1]
The
appellants and the third accused were charged with two counts of
Housebreaking with intent to rob and robbery with aggravating
circumstances and sexual assault. They pleaded not guilty to all the
charges. At the end of the trial they were all acquitted on
the count
of sexual assault. The trial court having found no aggravating
circumstances convicted the appellants of housebreaking
with intent
to rob and robbery. Each of the appellants was sentenced to fifteen
(15) years imprisonment, which is ordinarily the
maximum sentencing
jurisdiction of the regional court. They are therefore appearing
before us the trial court having granted them
leave to appeal against
sentence only.
[2]
At
the beginning of the hearing the appellants' counsel applied for
condonation for the late filing of the appellants' heads of
argument
which was granted.
[3]
The
state's case is that three men, two of whom are the appellants,
unlawfully entered the house of the complainant, an 82 year
old
woman. They gained access into the house by breaking the burglar bars
to the kitchen window. They went to the complainant's
bedroom. One of
them assaulted the complainant by hitting her with fists on the face.
The complainant suffered bruises on her face
and had to spend a few
days in hospital as a result. During the ordeal the complainant's
pyjamas and panties were removed and she
was threatened with rape.
The complainant took out an envelope with R3 000 in it and handed it
to the man who assaulted her. The
other two assailants rummaged
through the bedroom and removed certain items.
Some
of these items were found in the possession of the third accused. The
complainant could not identify the man who assaulted
and threatened
her with rape which resulted in the trial court concluding that the
state did not prove aggravating circumstances
beyond reasonable
doubt.
[4]
The
appellants appeal is based on the ground that the sentence of fifteen
years imposed by the trial court is shockingly inappropriate
and
induces a sense of shock. At the hearing the appellants' counsel
conceded that the offence of housebreaking with intent to
rob and
robbery is a serious offence and calls for a sentence of
imprisonment. She contended however that imprisonment for fifteen
(15) years in the circumstances of this case was grossly
inappropriate. She based her contention on the ground that the trial
court found no proof of assault or common purpose or aggravating
circumstances.
[5]
The
respondent's counsel disagreed with the contention by the appellants'
counsel. She is of the opinion that, firstly, this court
cannot
temper with the sentence as the trial court did not in any way
misdirect itself when passing the sentence imposed. Secondly,
the
sentence is proportionate to the offence committed and as such the
trial court was not incorrect to sentence the appellants
to
imprisonment for fifteen (15) years. According to her, even though
the trial court found otherwise, the offence was pre-meditated,
there
was common purpose and the aggravating circumstances in this
case far outweigh the personal circumstances of
the appellants.
[6]
According
to her, what is important is that the complainant was an elderly
person, a woman of 82 years, she was vulnerable, she
was alone in the
sanctity of her home, she must have suffered massive trauma. The
complainant's son did everything to ensure that
the complainant was
safe.
[7]
As
is trite, the imposition of sentence is the prerogative of the trial
court. The exercise of its discretion in that regard is
not to be
interfered with merely because an appellate court would have imposed
a heavier or lighter sentence. Where, however, there
exists a
'striking' or 'startling' or 'disturbing' disparity between the trial
court's sentence and that which the appellate court
would have
imposed, interference is justified. The approach to appeals against
sentence on the ground of excessive severity or
excessive leniency
where there has been no misdirection on the part of the court which
imposed the sentence is that the appellate
court must conclude that
its choice of penalty is the appropriate penalty and that of the
trial court is not. See S v Sandler
2000 (1) SACR 331
at para [8] -
[10].
[8]
It
is my view that the choice of sentence imposed by the trial court is
inappropriate in the circumstances of this case. The submission
by
the respondent's counsel that the sentence is proportionate on the
basis that the aggravating circumstances outweigh the appellants'
personal circumstances because the offence was premeditated, the
complainant was an elderly person and the effect of the trauma
she
experienced, does not persuaded me otherwise. F
irstly, the
submission that the
offence was planned has no
factual basis and should in my view be rejected. There is no evidence
on record that indicates that the
offence was planned. The contention
by the respondent's counsel that normally where robbery is committed
in a house there is prior
planning is in this instance mere
speculation as it is factually unsubstantiated. The evidence placed
either before the trial court
or this court does not support such
assumption.
[9]
I
am also mindful of the submission by the respondent's counsel that
the age of the complainant, the fact that she was vulnerable
and that
she was attacked in the sanctity of her home where she had lived for
more than thirty years which resulted in her having
to move are
factors which should be considered in aggravation of sentence. To my
mind, in the circumstances this case, these factors
do justify
imprisoned for a long time. They however, do not justify imprisonment
for a period of fifteen (15) years.
[10]
In
my opinion, a just and appropriate sentence in the circumstances of
this case is nine (9) years imprisonment. The appellants
should each
be sentenced to nine (9) years imprisonment.
[11]
In
terms of
section 282
of the
Criminal Procedure Act 51 of 1977
the
sentence should be ante-dated to 31 August 2010 being the date on
which the appellants were sentenced.
[12]
In
the premises I make the following order:
a.
The
conviction is confirmed.
b.
The
sentence imposed by the trial court is set aside and replaced by the
following:
"Accused
1 and 2 are sentenced to nine (9) years imprisonment."
c.
The
sentence is ante-dated to 31 August 2010.
KUBUSH1,
J
I
concur
MOGOTSI
,
AJ
Appearances:
On behalf of the appellant:
Adv. L. AUGUSTYN
PRETORIA JUSTICE CENTRE
Legal Aid South Africa First National
Building 206 Church Street PRETORIA 0001
On behalf of the respondent:
Adv. N. P. MARRIOT
DIRECTOR
OF PUBLIC PROSECUTIONS
Presidential Building
28 Church Square PRETORIA 0001