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[2012] ZAFSHC 56
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Madonci v S (A283/2010) [2012] ZAFSHC 56 (5 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A283/2010
In
the appeal between:-
LINDIKAYA
MADONCI
….........................................................
Appellant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
VAN
ZYL, J
et
DAFFUE, J
_____________________________________________________
HEARD ON:
6
FEBRUARY 2012
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
5 APRIL 2012
_____________________________________________________
[1]
The appellant and a co-accused, Hendrik Diapopa Mphahlele, were
charged with one count of housebreaking with the intent to rob
and
robbery. Both were convicted on 7 August 2006 as charged by the
Regional Court Magistrate of Sasolburg, Me Ngewu.
[2]
The court
a quo
sentenced appellant and his co-accused as
follows:
“
For
housebreaking with intent to rob, each accused is sentenced to:
undergo
7 years imprisonment
.
For robbery each accused is sentenced to:
undergo
7 years imprisonment
.”
Appellant
and his co-accused were sentenced as such notwithstanding the fact
that they were charged with one count and convicted
as charged in
respect of this one count only.
[3]
It is not clear from the record whether appellant applied for leave
to appeal to the court
a quo
. I have to assume so, but what is
certain from the record is that his co-accused applied for leave to
appeal against both conviction
and sentence. The court
a quo
dismissed the application. Thereupon appellant applied for leave to
appeal to this court which application was partially successful
in
that leave was granted to appeal in respect of the sentence only. It
is recorded at this stage that during oral argument the
legal
representatives of the parties were requested to investigate whether
appellant’s co-accused also applied to this court
for leave to
appeal and if so, what the outcome thereof was. We were of the view
that appellant’s possible success on appeal
should benefit his
co-accused as well. We have now been informed that no record of an
application for leave to appeal by appellant’s
co-accused to
this court could be found.
[4]
Appellant’s application for leave to appeal to this court is
contained in a standard document which is probably available
to all
inmates. It is clear from the application that appellant considers
the effective term of 14 years imprisonment as strikingly
inappropriate. He also relies on the fact that the time spent in
custody awaiting trial was not considered and that the court
a quo
erred in over-emphasising factors such as the seriousness of the
offence, interest of society and the retributive element of sentence.
[5]
In his written Heads of Argument, Mr Reyneke on behalf of appellant,
submitted that the effective sentence was shockingly inappropriate
and that a sentence of 5 years imprisonment in terms of section
276(1)(i) would be appropriate. However during his oral argument
in
court he conceded that a term of 8 years imprisonment would be more
appropriate. Mr Strauss, on behalf of the State, also submitted
that
the appeal against sentence should succeed, but that a sentence of 8
years imprisonment ought to be imposed.
[6]
Both legal representatives referred to the misdirection of the court
a quo
in, as they called it the splitting of the charge, for
purposes of sentence. It is not necessary to consider whether
appellant
and his co-accused could be charged with separate counts,
the first being housebreaking with the intention to rob and the
second
being robbery. They were not charged as such and found guilty
in respect of two different offences, but in respect of one offence
only. The court
a quo
clearly misdirected itself and the
sentence cannot be allowed to stand. One sentence should have been
imposed and not two separate
sentences. It is also apparent from the
judgment on the application for leave to appeal that the court
a
quo
was of the view that the two accused could be sentenced to
the minimum sentence of 15 years imprisonment on the count of
robbery.
Although not relevant to the present appeal, this is again a
misdirection in so far as the accused have not been charged with or
convicted in respect of robbery with aggravating circumstances. We
are at liberty to consider the sentence to be imposed afresh.
[7]
There is no doubt that the offence of housebreaking with the
intention to rob and robbery is an extremely prevalent offence
in the
court
a quo
’s jurisdiction, as is the case countrywide.
The community should be protected and in order to do so severe
sentences should
be imposed, even on first offenders. See:
S v
MOSWATHUPA
2012(1) SACR 259 (SCA).
[8]
The following is taken into consideration pertaining to the
appellant’s personal circumstances:
(a)
his age when the offence was committed, to wit 18 years;
(b)
he spent just over 2 years in custody awaiting trial;
(c)
he is a first offender;
(d)
he stayed with his mother who was unemployed at the time.
[9]
In the circumstances an effective sentence of imprisonment of 8 years
is an appropriate sentence and should be imposed.
[10]
The co-accused’s position must be considered. As indicated
above, he has not applied for leave to appeal to this court.
However
we have now taken cognisance of the fact that the sentence imposed on
him was not in accordance with justice and consequently
this court is
entitled in accordance with the provisions of
section 304(4)
of the
Criminal Procedure Act 51 of 1977
to deal with the situation of
appellant’s co-accused, Hendrik Diapopa Mphahlele. His personal
circumstances differ slightly
from those of appellant. He was
24-years old when the offence was committed, and thus appellant’s
senior by 6 years. Two
previous convictions for housebreaking were
proven against him. However he should also be considered a first
offender as it appears
from the record that those offences were
committed after the offence
in casu
and prior to his arrest.
Clearly he has a propensity to commit serious crimes. His sentence
should also be set aside, but replaced
with a more severe sentence
than the one to be imposed on appellant, to wit 9 years imprisonment.
[11]
Therefore, I would make the following orders:
1.
The appellant’s appeal succeeds.
2.
The sentence imposed by the court
a quo
is set aside and
replaced with the following sentence:
8
years imprisonment in terms of
section 276(1)(b)
of the
Criminal
Procedure Act 51 of 1977
.
3.
The sentence imposed upon appellant’s co-accused, Hendrik
Diapopa Mphahlele is reviewed and set aside and replaced by the
following sentence:
9
years imprisonment in terms of
section 276(1)(b)
of the
Criminal
Procedure Act 51 of 1977
.
4.
The sentences are anti-dated to 7 August 2006.
______________
J.P. DAFFUE, J
I concur and it is so
ordered.
______________
C. VAN ZYL, J
On
behalf of appellant: Mnr. J D Reyneke
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. M. Strauss
Instructed
by:
Office of the Director of
Public Prosecutions
BLOEMFONTEIN
/eb