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[2013] ZAFSHC 12
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Khati and Another v S (A180/2011) [2013] ZAFSHC 12 (7 February 2013)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Appeal No.:A180/2011
In the appeal of:
MOHAU KHATI
......................................................................................
1
st
Appellant
MOLEFI PETRUS KHOLONG
..............................................................
2
nd
Appellant
and
THE STATE
..............................................................................................
Respondent
______________________________________________________________
CORAM:
MOLEMELA, J
et
THAMAGE, AJ
______________________________________________________________
HEARD ON:
15 OCTOBER
2012
______________________________________________________________
DELIVERED ON:
07
FEBRUARY 2013
______________________________________________________________
MOLEMELA, J
[1] This is an appeal against
sentence. The appellants were convicted of robbery with aggravating
circumstances on the 28
th
October 2009. They were
sentenced on the same day to twelve years’ imprisonment. The
appeal is only directed against their
sentence and is brought with
leave of this court.
[2] The robbery took place at a
crossroad between Welkom and Kroonstad, where the complainant was
waiting for a taxi. He was robbed
of his bag and its contents at
knife-point.
[3] The grounds on which the appeal is
based are that the sentences imposed on the appellants is shockingly
inappropriate and did
not take proper cognizance of the appellants’
personal circumstances.
[4] It was argued that the court
a
quo
committed a material irregularity by considering the
appellants to be second offenders in respect of the offence of
robbery and
thus moved from the premise that the applicable minimum
sentence for robbery with aggravating circumstances was 20 years
imprisonment
as contemplated in section 51(2)(a)(ii) of Act 105 of
1997. It is common cause that even though both appellants had
previous convictions,
their previous convictions were not for robbery
with aggravating circumstances. They were accordingly not second
offenders in respect
of this offence.
[5] The state conceded that the court
a quo
had misdirected itself materially by considering the
appellants to be second offenders in respect of the offence of
robbery with
aggravating circumstances and conceded that the
applicable minimum sentence was 15 years and not 20 years
imprisonment. The state
however submitted that notwithstanding this
misdirection the sentence imposed by the court
a quo
was not
shockingly inappropriate, given the aggravating factors.
[6] It is trite law that a court of
appeal will interfere with the imposed sentence if it is of the view
that such sentence as unreasonable,
unjust is vitiated by
irregularities or if the court
a quo
has misdirected itself
materially.
[7] As stated before, the state
conceded that the court
a quo
’s consideration of a
period of 20 years imprisonment as a minimum sentence instead of 15
years imprisonment constitutes a
material misdirection. In my view,
this concession was correctly made as it can be accepted that the
court
a quo
, in its consideration of an appropriate sentence,
used the twenty years’ imprisonment as its benchmark in
accordance with
the principle laid down in the case of
S v
Malgas
2001(1) SACR 469 (SCA)
. I am of the view that
this material misdirection warrants the setting aside of the sentence
and a fresh consideration of the sentence.
[8] I now turn to consider sentence
afresh. This exercise warrants a balanced consideration of the
well-known triad of sentence
as well as the objectives of sentencing.
[9] The offence committed by the
appellants, i.e. robbery with aggravating circumstances is of a
violent nature. There is no doubt
that it falls under the category of
violent crimes. This offence is unfortunately prevalent, not only in
the court’s area
of jurisdiction but in the country as a whole.
Members of the public are outraged by the prevalence of violent crime
in this country.
It comes as no surprise that the offence committed
by the appellants is one of those singled out by parliament for
imposition of
lengthy sentences as minimum sentences. It is important
for the courts to impose sentences that will assure the community
that
the courts are striving to maintain peaceful and safe living
conditions. See
S v B
1985 (2) SA 210
(a).
[10] The first appellant’s
mitigating factors are as follows:
(i) He was 18 years old at the time of
commission of the offence.
(ii) He attended school up to grade
11.
(iii) Both his parents passed away and
he was raised by his grandmother.
[11] The second appellant’s
personal factors are as follows:
(i) He was 26 years old at the time of
commission of his offence.
(ii) He has a son aged 12 years.
(iii) He attended school up to grade
11.
(iv) He was employed, earning R500,00
per week and using his earnings for the maintenance of his minor
child.
(v) His mother passed away and there
is no one else available to look after his child.
[12] Both appellants spent 16 months
in custody awaiting trial. This period will be taken into account.
[13] The aggravating factors are as
follows:
(i) Both appellants have previous
convictions,
viz
assault. Their previous convictions have
violence as one of the elements.
(ii) The crime was planned and
organised as part of a gang.
(iii) The appellants showed no remorse
for their actions.
[14] As stated before, the offence
committed by the appellants falls under the category of sentences for
which a minimum sentence
of 15 (fifteen) years’ imprisonment
must be imposed on a first offender unless there are substantial and
compelling circumstances
that warrant deviation from such sentences.
The first appellant was very young when he committed this offence and
his age is a
strong mitigating factor. I am satisfied that his
mitigating factors, cumulatively viewed, constitute substantial and
compelling
circumstances that warrant deviation from the applicable
sentence. Although the second appellant’s age is a neutral
factor,
I am satisfied that his mitigating factors, cumulatively
viewed, outweigh the aggravating circumstances and constitute
substantial
and compelling circumstances that warrant deviation from
imposition thereof.
[15] Despite the fact that I have
found a justification for deviating from the applicable minimum
sentence, this does not detract
from the fact that robbery with
aggravating circumstances is a serious offence that warrants
imposition of a lengthy sentence.
Although the first appellant is a
youthful offender, he already has a previous conviction
viz
assault. The sentence imposed for that conviction obviously failed to
deter him from further involvement in crime. This court needs
to send
a stronger message to him, that crime does not pay. Instead, he
graduated into committing a more serious offence as part
of a gang.
The offence previously committed by the appellants and the present
offence they have been convicted of both have violence
as one of
their elements. Although the age of the first appellant counts in his
favour, he has showed no remorse and thus failed
to take
responsibility for his actions. This lack of remorse impacts
negatively on his prospects of a quick rehabilitation. Under
the
circumstances, a lengthy imprisonment sentence is the only
appropriate sentence, especially on account of the seriousness of
the
offence that he has been convicted of. It should, however, not be so
lengthy as to kill his spirit.
[16] With regards to the second
appellant, he is much older than the first appellant and was a mature
adult at the time of commission
of the offence. He too showed no
remorse for his actions. He, too, had a previous conviction whose
sentence failed to deter him
from further involvement in crime. This
previous conviction is of a significant weight because it has
violence as one of its elements.
The difference in the ages of the
two appellants necessitates a distinction in their sentence. A
heavier sentence will thus be
imposed on the second appellant.
[17] It is trite law that the period
spent in prison while awaiting trial must be taken into account. See
S v Stephen and Another
1994 (2) SACR 163
(W). It was
further laid down in the case of
S v Brophy
2007(2)
SACR 56 (W) that the period spent in custody while awaiting trial is
equivalent to a sentence of twice that length.
[18] Having considered all the
circumstances of this matter, I find that the appropriate order is
the following:
1. Both appellants’ appeal
against their sentence succeeds.
2. The sentence imposed by the court
a
quo
on both appellants is set aside and replaced with the
following:
Appellant 1: 8 (Eight) years
imprisonment.
Appellant 2: 10 (Ten) years
imprisonment.
3. The sentence mentioned in paragraph
2 above, is antedated to 28 October 2009.
__________________
M. B. MOLEMELA, J
I concur.
__________________
S. J. THAMAGE, AJ
On behalf of the appellants: J. D.
Reyneke
Instructed by:
Bloemfontein Justice Centre
BLOEMFONTEIN
On behalf of the respondent: Adv. S.
Mthethwa
Instructed by:
The Director: Public Prosecutions
BLOEMFONTEIN
/eb