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[2013] ZAFSHC 61
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Godla and Another v S (A140/2012) [2013] ZAFSHC 61 (25 April 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.:A140/2012
In the matter of:
VICTOR SELLO TEBOHO
GODLA
....................................
1
st
Appellant
ZACHARIA MEPHA
............................................................
2
nd
Appellant
and
THE STATE
..........................................................................
Respondent
___________________________________________________
CORAM:
MOLEMELA, J
et
DA ROCHA-BOLTNEY, AJ
_____________________________________________________
JUDGEMENT BY:
MOLEMELA, J
_____________________________________________________
HEARD ON:
18 FEBRUARY 2013
_____________________________________________________
DELIVERED ON:
25 APRIL 2013
_____________________________________________________
[1] On the 14
th
April 2011 the two appellants and a third person were convicted of
robbery with aggravating circumstances by the regional court
in
Viljoenskroon and sentenced to 10 year’s imprisonment. The two
appellants unsuccessfully applied for leave to appeal against
both
conviction and sentence. They subsequently approached this court on
petition and were granted leave to appeal only against
their
sentence. The basis of their appeal is that the court
a quo
under-emphasised their personal circumstances and over-emphasised the
seriousness of the offence and the interests of the society,
culminating in a sentence that is shockingly inappropriate.
[2] The two appellants’
prosecution arose from the fact that on the night of the 27
th
August 2010 they, together with their co-accused, accosted the
complainant in the street, stabbed him with a knife and robbed him
of
an amount of R25.00 in cash and a waist belt. The complainant
sustained several cuts on the body.
[3] It was argued on
behalf of the respondent that the fact that the court
a quo
found that there were substantial and compelling circumstances
warranting deviation from the applicable minimum sentence of 15
years
imprisonment demonstrated that the court
a quo
had considered
the triad of sentence in a balanced fashion. It was further contended
that even though the sentence imposed by the
court
a quo
could
be regarded as severe, it was not so shocking as to warrant
interference therewith.
[4] The following are the
mitigating factors that were considered by the court
a quo
in
respect of the first appellant:
4.1 that the first
appellant was 20 years old and had impregnated his lover;
4.2 that he was
unemployed even though he had attended school up to grade ten level.
In respect of the second
appellant, the following mitigating factors
were considered:
4.3 that he was 19 years
old;
4.4 that he had no
dependants;
4.5 that he attended
school up to grade 10 level and did odd jobs.
[5] The following
aggravating factors were considered by the court
a quo
:
5.1. the seriousness and
prevalence of the offence;
5.2. the interests of
society;
5.3. the appellants’
previous conviction (
viz
assault with intent to do grievous
bodily harm).
[6] Although the two
appellant’s ages were, at the time of their sentencing,
accepted as 20 years (first appellant) and 19
years (second
appellant), respectively, it is evident from their date of birth as
reflected in the form setting out their criminal
record, known as
Form SAP69, that as at the time of the commission of the offence, the
first appellant was 18 years and 6 months
old while the second
appellant was 17 years and 10 months old. It is also evident from the
record that the court
a quo
considered the two appellants’ co-accused, who was
accused no. 1 during the trial, to have been the one that played a
leading
role in the attack.
[7] It is settled law
that a youthful offender should not be deprived of his or her liberty
except as a measure of last resort and,
if incarceration is
unavoidable, then his incarceration must be for the shortest possible
period.
In the case of
S
v Phulwane and Others
2003 (1) SACR 631
(T), the three appellants, aged 20 years, 22 years and 18 years
respectively had been convicted of housebreaking with intent to
steal
and theft of groceries worth R1 500,00. The trial court had
sentenced all three of them to an effective term of imprisonment
for
three years. On appeal the appellants’ sentences were set aside
and the matter was remitted to the trial court for acquisition
of
pre-sentencing reports and sentencing
de novo
.
It is apposite to quote from the following part of that judgment:
“
It is true
that where a crime is serious and prevalent, particularly where it
threatens the well-being of society, that courts should
impose
appropriate sentences. However, it remains a trite principle of
sentencing that each case has to be decided on its own merits
…
A sentencing officer must never allow the seriousness of the offence
and the interests of the community to receive undue
weight at the
expense of the personal circumstances of the accused. This will
inevitably lead to a sentence which is flawed.”
At p 634 the court went
on to state as follows:
“
When a youth
or juvenile strays from the path of rectitude to criminal conduct, it
is the responsibility of judicial officers entrusted
with the task of
sentencing such a youth to ensure that he or she receives all
relevant information pertaining to such a juvenile
to enable him or
her to structure a sentence that will best-suit the needs and
interests of the particular youth. It is after all
a salutary
principle that sentence must be individualised.”
[8] In the case of
S
v Nkosi
SACR 135 (W) at 143, the court remarked as follows:
“
The fine
balance that needs to be struck between society’s needs to
punish crime while not overlooking the interests of a
juvenile
offender was emphasised by Botha JA in
S
v Jansen & Another
1975 (1) SA 425
(A) at 427 – 428 in the following terms: The
interests of society cannot be served by disregarding the interests
of the juvenile,
for a mistaken form of punishment might easily
result in a person with a distorted personality being eventually
returned to society.”
I echo the sentiments
expressed in the afore-mentioned cases.
[9] I am alive to the
fact that the two appellants were not first offenders. They had a
previous conviction which had an element
of violence. Thus, they were
not entitled to be treated as first offenders and the court
a
quo
correctly took their previous conviction
into account. This, however, does not detract from the fact that the
second appellant was
a juvenile at the time of commission of the
offence. As for the first appellant, at 18½ years of age, he
was indeed already
an adult. Having achieved the age of majority a
mere six months prior to commission of the offence, few can quarrel
with the fact
that he was still a youthful offender. I am of the view
that all things considered, including the principles laid down in the
afore-mentioned
cases, as well as the value of the items the
complainant was robbed of, a proper consideration of the triad of
sentence ought not
to have resulted in the sentence imposed on the
appellants by the court
a quo.
The
court
a quo
thus
committed a material misdirection.
[10] The following was
aptly stated in the case of
S v Malgas
2001 (1) SACR 369
(SCA) at 478 d – h:
“A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the
question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers
it. To do so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates
its exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh. In doing
so, it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance”.
[11] The misdirection
committed by the court
a quo
is
thus of such a nature as to warrant interference with
the sentence it imposed, thus necessitating a fresh consideration of
an appropriate
sentence. Given the lapse of time between the
conviction and the appeal, I do not deem it prudent to remit the
matter to the trial
court for purposes of acquiring a pre-sentencing
report.
[12] The mitigating and
aggravating factors in this matter have already been canvassed. The
court
a quo
correctly found that the mitigating factors,
cumulatively viewed, constitute substantial and compelling
circumstances warranting
deviation from the applicable sentence.
However, robbery with aggravating circumstances remains a serious
offence. In the case
of
S v Mondi & Another
1999
(1) SACR 292
(O) the court considered appropriate sentences for
robbery committed under more or less similar circumstances to the
present by
two mature adults who had numerous previous convictions,
to be seven and eight years’ imprisonment, respectively. In
this
matter, the appellants are much younger than the appellants in
that matter. However, regard has to be paid to the fact that in that
matter the complainant had not sustained any injuries, whereas in
this matter the complainant sustained several injuries inflicted
with
a knife. Although the appellants’ youthfulness counts in their
favour, they have not showed any remorse and thus failed
to take
responsibility for their actions. This lack of remorse impacts
negatively on their prospects of a quick rehabilitation.
Under the
circumstances, a relatively lengthy term of imprisonment is the only
appropriate sentence, especially on account of the
seriousness of the
offence that the appellants have been convicted of. Having considered
all the circumstances of this case, including
the six months’
period spent by the appellants in detention while awaiting their
trial, I deem a sentence of seven years’
imprisonment to be
appropriate.
[13] The following order
is made:
The appeal against
sentence succeeds in respect of both appellants.
The sentence imposed by
the court
a quo
on the two appellants is hereby set aside and
replaced with following:
Seven years’
imprisonment
The sentence referred to
in clause (ii) above is antedated to the 14
th
April 2011.
___________________
M. B. MOLEMELA, J
I concur.
______________________
DA ROCHA-BOLTNEY, AJ
On behalf of the
applicant: Attorney P L van der Merwe
Instructed by:
Legal Aid
BLOEMFONTEIN
On behalf of the
respondent: Adv. M. A. Mohlala
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb