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[2013] ZAFSHC 137
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Motoko v S (A64/2013) [2013] ZAFSHC 137 (1 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A64/2013
In the matter between:-
LOBIANA PHILLIMON
MOTOKO
............................................
Appellant
and
THE STATE
..........................................................................
Respondent
___________________________________________________
CORAM:
MOCUMIE
et
MOLEMELA, JJ
___________________________________________________
HEARD ON:
29 JULY 2013
___________________________________________________
DELIVERED ON:
01 AUGUST 2013
___________________________________________________
JUDGMENT
___________________________________________________
MOCUMIE, J
[1] This is an appeal
against the sentence of ten years imprisonment imposed by the
regional court on the appellant after convicting
him of one count of
robbery, with aggravating circumstances as defined in
section 1
of
the
Criminal Procedure Act, no 51 of 1977
.
[2] The proven facts in
this case are that the appellant and his three co-horts accosted the
complainant whilst walking in a street
on 5 March 2011 at around
8h00. They threatened him with a knife and robbed him of his
cellphone valued at R430, 00, a wallet valued
at R30, 00 and
containing R200, 00 as well as a passport.
[3] The only issue to be
determined is whether the trial court overemphasised the interests of
the society above the appellant’s
personal circumstances and in
that way imposed a sentence far heavier than it would have, had it
struck a balance between these
two factors.
[4] The appellant was 20
years of age at the time of the commission of this serious offence.
He was a first offender. He was employed
and earned R1 200,00
per month. He went up to Grade 10 at school.
[5] Mr Van der Merwe
submitted that the complainant was not seriously injured and that he,
the complainant had retrieved the cellular
phone that the appellant
robbed him of. He submitted further that the trial court failed to
give due consideration to the young
age of the appellant and that the
appellant was evidently acting under group or peer pressure. There
was no pre-planning.
[6] It is trite that
sentencing is primarily the responsibility of the sentencing court.
The essential enquiry on appeal is not
whether the sentence was right
or wrong but whether the court imposing it exercised its discretion
properly and judicially. The
failure to exercise its discretion
properly and judicially must be of such a nature, degree or
seriousness that it shows, directly
or inferentially that the court
did not exercise its discretion at all or exercised it improperly or
unreasonably.
[7] Although in his heads
of argument Mr Van der Merwe submitted that the sentence was severe
in the circumstances of this case,
at the hearing of the appeal he
however conceded that this was a serious offence; that it was one of
the offences that is prevalent
in this Division; that the appellant
was gainfully employed and had no reason to rob the complainant if
not out of greed and criminality;
and that the trial court actually
deviated from the prescribed sentence of fifteen years.
[8] The trial court
indeed did not misdirect itself in any manner. The record is clear.
Mr Van der Merwe could not point to any
material misdirection on the
part of the trial court. The sentence imposed is appropriate and
balanced taking into account the
seriousness of this offence. It fits
the seriousness of the crime, the accused’s personal
circumstances and takes into account
the interests of society. There
is no justification to temper with the sentence imposed by the trial
court.
[9] In the event, the
following order is made.
ORDER
The conviction and
sentence imposed by the court
a quo
are confirmed;
The appeal against the
sentence is dismissed.
_________________
B. C. MOCUMIE, J
I concur.
_________________
M. B. MOLEMELA, J
On behalf of the
appellant: P. L. van der Merwe
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. L. Zweni
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb