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[2013] ZAFSHC 134
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Mofokeng v S (A63/2013) [2013] ZAFSHC 134 (1 August 2013)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Appeal No.: A63/2013
In the appeal between:-
LEBOHANG JUSTICE MOFOKENG
...........................................................
Appellant
and
THE STATE
..............................................................................................
Respondent
____________________________________________________.__________
CORAM:
MOCUMIE, J and
MOLEMELA, J
______________________________________________________________
HEARD ON:
29 JULY 2013
______________________________________________________________
DELIVERED ON:
01
AUGUST 2013
______________________________________________________________
APPEAL
_____________________________________________________
MOLEMELA, J
[1] This is an appeal against
conviction and sentence. The appellant and another person were
charged with robbery with aggravating
circumstances by the regional
court in Kroonstad. They were both convicted as charged. The
appellant was sentenced to 10 (ten)
years imprisonment, while his
co-accused was sentenced to 12 (twelve) years’ imprisonment.
This appeal relates only to the
appellant, with leave of this court.
[2] The facts that led to the
appellant’s prosecution as related by the state witnesses is
that on the 19
th
May 2011 the complainant, an immigrant
whose home language is Amaruk, was standing outside his shop in the
township when he saw
two men approaching him, one short (whom he
identified as the appellant during the trial) and the other one tall
(whom he identified
as the appellant’s co-accused during the
trial). He assumed that they were customers and turned around to
enter the shop
so that he could attend to them. As he was entering
the shop, the appellant’s co-accused grabbed him by his neck
and started
strangling him. He instinctively turned his head to the
side, in the direction of the counter and saw the appellant standing
behind
the counter and removing money, cigarettes and cellular phone
airtime-vouchers and stuffing them into a backpack made of camouflage
material. He tried to free himself from the grip of the appellant’s
former co-accused, but the appellant quickly confronted
him,
brandishing a knife which he later pressed against his head. He lost
consciousness. On regaining consciousness he phoned his
brother.
Before his brother’s arrival a man (later identified to be
Floyd Mosia, the second state witness) entered the shop.
He informed
Floyd Mosia that he had just been robbed by two men. Floyd Mosia
informed him that he had just seen two men who were
well-known to
him, running out of the shop. His brother then phoned the police. Due
to the fact that he (complainant) has difficulty
expressing himself
in English, it was difficult to communicate with the police officer
who was taking his statement down and at
some point his brother tried
to assist him with the interpretation. The written statement was
never read back to him until just
before the trial when it was
interpreted to him by an Amaruk interpreter. He immediately pointed
out that he had never said he
would not be able to identify his
attackers but had merely mentioned that he did not know their names.
[3] The second state witness, viz
Floyd Mosia testified that on the day in question he was sitting
about nine metres from the shop
when he saw the appellant and his
former co-accused running out of the store. He knew both of them very
well. He noticed that the
appellant was carrying a camouflage
backpack. He did not suspect that anything was amiss. About five
minutes later he decided to
go and buy cigarettes from the shop. On
entering the shop he noticed that the complainant was bleeding. The
complainant informed
him that he had just been robbed by two men and
that they had put the stolen goods in a camouflage backpack before
fleeing. As
there were no other persons that had entered the shop
since the appellant and his former co-accused ran out of it, he
(Floyd Mosia)
concluded that they were the ones that had robbed the
complainant. He informed the complainant that he knew the persons
concerned
and also provided him with their names.
[4] The investigating officer
testified that after arresting the appellant and his co-accused, they
both indicated that their defence
was that of an alibi. The appellant
informed him that he was in Vereeniging on the day of the incident.
He went to Vereeniging
to investigate the appellant’s alibi and
then concluded that it was a fabrication. He testified that during
his consultation
with the complainant there was no meaningful
communication due to the fact that the complainant could not
adequately express himself
in English. Under cross-examination he
stated that at the time when he effected the arrest, the
complainant’s statement was
already in the docket. He was not
the one that had taken down the statement in question and could not
remember its contents. Under
cross-examination, he was further asked
to comment about a certain paragraph in the statement deposed to by
the complainant. He
stated that the impression he gained from that
paragraph was that the complainant could not identify his attackers.
[5] The appellant denied any
involvement in the robbery committed against the complainant. He also
denied having informed the investigating
officer that he was in
Vereeniging on the day of the incident. His version is that he spent
the day in question at his parental
home in the company of his
mother, his girlfriend and two children. On that day he only left the
house when he was going to the
shop. The complainant was unknown to
him. He knew Floyd Mosia well. The latter was falsely incriminating
him because there was
bad blood between them, emanating from the fact
that his current girlfriend had terminated her love affair with Floyd
Mosia so
as to have a relationship with him. He called his mother and
his girlfriend as his witnesses. His co-accused’s also denied
any involvement in the complainant’s attack. He testified that
he had spent the afternoon of the day in question at his home,
where
he had kept himself busy with cleaning the yard and mowing the lawn.
He did not leave his home at all during the afternoon
and was in the
company of his brother. He called his brother as his witness.
[6] The basis of the appeal against
the appellant’s conviction is that the court
a quo
erred
in rejecting the appellant’s version and also in disregarding
the fact that there was bad blood between Floyd Mosia
and the
appellant. It was argued that without Floyd Mosia’s testimony
the complainant would not have identified the appellant.
[7] The correct
approach when analysing evidence is trite. Evidence is considered in
its totality. In the case of
S
v Chabalala
1
the court aptly
stated as follows:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the state as to exclude any reasonable doubt about
the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such
as the
failure to call a material witness concerning an identity parade) was
decisive but that can only be an
ex
post facto
determination
and a trial court (and counsel) should avoid the temptation to latch
on to one (apparently) obvious aspect without
assessing it in the
context of the full picture presented in evidence.
[8] It is clear
from the court
a
quo
’
s
judgment that its analysis of evidence was in accordance with the
principle enunciated in the afore-mentioned case. Furthermore,
the
court
a
quo
sufficiently
demonstrated that it was alive to the principles applicable to
evidence of identification as laid down in the seminal
case of
S
v Mthethwa
2
and that it
approached the evidence with caution, considering not only the
honesty of the complainant and Floyd Mosia but also their
reliability. The court
a
quo
correctly
took into account that the complainant’s identification of the
appellant on the day of the incident was made during
the day and from
a short distance of six metres; that he had correctly described his
assailants’ height and had also described
their respective
attire; that he had observed the two of them in a favourable state of
mind when he first saw them outside the
shop as he assumed they were
customers; that he had seen them at close range outside the shop and
then at very close range inside
the shop which was lit by electric
lights, where they were so close to him that they even made physical
contact with him. The court
a
quo
correctly
concluded that the complainant had had sufficient opportunity to make
a reliable identification.
[9] The court
a
quo
correctly
considered the complainant’s denial of the part of the written
statement where he was alleged to have stated that
he would not be
able to identify his assailants, as the contents of such statement
were not proven in court despite the complainant’s
uncontroverted assertion that it was not read back to him after it
was reduced to writing. The court
a
quo
also
correctly went on to acknowledge the language barrier that existed
between the complainant and the statement-taker on the basis
of the
investigating officer’s uncontroverted evidence that the
complainant could not express himself meaningfully in English.
[10] The court
a quo
also
correctly considered Floyd Mosia’s evidence of identification
as bolstering that of the complainant as the appellant
and his
co-accused were well-known to him and he was in fairly close
proximity to them when he saw them running out of the shop.
[11] It is evident from the court
a
quo’s
judgment that it properly considered the
contradictions in the evidence of the appellant
vis-à-vis
the evidence of his witnesses pertaining to whether he left his house
at any stage on the day in question, and also considered
the
inconsistency between the appellant’s evidence and the evidence
of his girlfriend regarding an alleged confrontation
between the
appellant and Floyd Mosia on the day of the incident, which,
according to the appellant, allegedly served to confirm
the existence
of bad blood between the appellant and Floyd Mosia. There is thus no
basis for interfering with the credibility findings
made by the court
a quo
.
[12] In light of all the circumstances
canvassed in the aforegoing paragraphs, it is evident that the court
a quo
correctly found that the state proved its case beyond
reasonable doubt. The concession, made during the hearing of the
appeal by
the appellant’s counsel relating to the conviction
was thus correctly made.
[13] With regards to the sentence it
was submitted on behalf of the appellant that the court
a quo
misdirected itself by overemphasising the seriousness of the
offence at the expense of the personal circumstances of the
appellant.
[14] The mitigating factors placed on
record and considered by the court
a quo
are as follows:
(i) The appellant was a youthful
offender who had no fixed employment.
(ii) He was a first offender.
(iii) That the appellant spent 13
months in custody while awaiting trial.
[15] The aggravating factors it took
into account are the seriousness of the offence and the interests of
the community. Having
considered both mitigating and aggravating
circumstances, the court
a quo
correctly found that there were
substantial and compelling circumstances which justified deviation
from imposition of the minimum
sentence of 15 (fifteen) years
imprisonment.
[16] It is not
evident from the record that when the court
a
quo
went
about the task of considering what sentence would be appropriate for
the appellant it considered what the impact of a lengthy
term of
imprisonment would be on such a youthful offender. This is borne out
by the slight difference between the appellant’s
sentence (i.e.
10 (ten) years imprisonment) and his co-accused’s sentence of
12 (twelve) years imprisonment despite the fact
that his co-accused
was a mature adult of 26 years with previous convictions. While the
court a quo was under no obligation to
ask for a pre-sentencing
report to be compiled, I am of the view that such a step would have
assisted it in determining a more
appropriate sentence for the
appellant.
In the case
of
S v Phulwane and
Others
3
,
the court made the
following remarks which I align myself with:
“
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.”
[17] I am satisfied
that in overemphasising the seriousness of the offence and the
interests of the community at the expense of
the mitigating
circumstances, the court a quo committed a material misdirection that
warrants the setting aside of its sentence.
In
S
v Phulwane and Others
4
(supra)
the
court stated as follows:
“
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.”
The remarks made in the
afore-mentioned case fortify my view that the court
a quo
failed
to exercise its sentencing discretion judiciously. This court is thus
at liberty to consider sentence afresh. It follows
therefore that the
concession made by the state counsel in respect of sentence was
properly made.
[18] A fresh
consideration of the sentence warrants consideration of the
well-known triad of sentence as well as the objectives
of sentencing,
viz
rehabilitation,
deterrence, retribution and prevention of the offender from
committing further offences. The mitigating and aggravating
factors
applicable in this matter have already been canvassed. There is no
doubt that the offence committed by the appellant is
a serious one as
it was accompanied by violence. This is a significant aggravating
factor. This, however, is not the only consideration
when determining
an appropriate sentence. Although the appellant was already an adult
at the time of commission of the offence,
few will quarrel with the
fact that, at the age of 18 years and 9 months, he still falls within
the category of relatively youthful
offenders. He was also a first
offender. These two factors are compelling mitigating factors. In
determining an appropriate sentence
for him, care ought to be taken
to ensure that he is not visited with a sentence that will deprive
him of an opportunity of being
rehabilitated. Imposing a lengthy term
of imprisonment on a youthful offender has the danger of exposing him
to hardened criminals,
impacting negatively on any prospects of
rehabilitation. Although the complainant suffered injuries at the
hands of the appellant,
the injuries he sustained were relatively
minor. The value of the items stolen was relatively low. Another
important consideration
is that the appellant spent 13 (thirteen)
months in custody while awaiting trial. The record does not show that
the appellant had
any hand in this state of affairs. This period thus
ought to be taken into account when determining an appropriate
sentence. See
S v
Brophy
5
.
[19] Given all the
circumstances, I am of the view that a non-custodial sentence would
not be appropriate as the following facts
militate against it: that
the offence committed by the appellant was serious and that it was
clearly pre-planned; that some injuries
were inflicted on the
complainant; that the appellant showed no remorse
and
thus failed to take responsibility for his actions
.
This lack of remorse
impacts negatively on prospects of a quick rehabilitation. An
appropriate sentence for the appellant is one
that will send
a
clear message to him and other young persons who involve themselves
in serious offences that they will face the full might of
the law
despite their youthfulness. In my view, a sentence that will
adequately serve the four objectives of punishment is the
following
sentence: 7 (seven) years’ imprisonment.
[20] I would therefore make the
following order:
The appeal against conviction fails.
The appeal against sentence succeeds.
The sentence imposed by the court
a
quo
is set aside and replaced with the following: 7 (seven)
years’ imprisonment.
The sentence mentioned in par 3 of
the order is antedated to 12 July 2012.
_________________
M.B. MOLEMELA, J
I
concur.
_______________
B.C. MOCUMIE, J
On behalf of appellant: Adv J.S.
Makhene
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of respondent: Adv L. Zweni
Instructed by:
Director of Public Prosecutions
BLOEMFONTEIN
spieterse
1
2003
(1) SACR 134
(SCA) at 139i – 140b
2
1972
(3) SA 766
(A)
3
2003
(1) SACR 631
(T)
4
Supra,
at p634
5
2007(2)
SACR 56 (W)