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[2011] ZAFSHC 24
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Moyo and Another v S (A233/2010) [2011] ZAFSHC 24 (10 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A233/2010
In
the appeal of:
MPUMELELO MOYO
….....................................................
First
appellant
LINDINKOSI
KHESWA
….............................................
Second
appellant
and
THE
STATE
….......................................................................
Respondent
CORAM:
VAN DER MERWE, J
et
SINGH, AJ
_____________________________________________________
HEARD ON:
7
FEBRUARY 2011
JUDGMENT BY:
SINGH, AJ
DELIVERED ON:
10 FEBRUARY 2011
[1] The first and the
second appellant were tried and convicted in the Regional Court, held
at Petrus Steyn, of the crimes of robbery
with aggravating
circumstances as defined in section 1 of Act 51 of 1977 (count 1),
possession of firearm (count 2) and possession
of ammunition (count
3) in contravention of the
Firearms Control Act 60 of 2000
read with
section 250
of Act 51 of 1977, and each of the appellants was
sentenced to a term of fifteen (15) years imprisonment in respect of
count 1
and five (5) years in respect of counts 2 and 3 taken
together for purposes of sentence.
[2] Defence attorney, Mr.
Stoffberg, who represented the first and second appellant at their
trial, obtained leave to appeal for
each appellant from the court
a
quo
.
[3] The appeal before
this court is in respect of sentence only and this court refrains
from dealing with the merits of the conviction
of each of the
appellants.
[4] The central issues of
this appeal are whether the learned magistrate acted correctly in
imposing sentence and in finding that
there are no substantial and
compelling circumstances which justify the imposition of a lesser
sentence on the first and second
appellants in respect of count 1.
[5] The defence counsel
argued at the trial that the fact that the goods were recovered and
handed in, that no-one was injured during
the incident and that first
and second appellant were first offenders were substantial and
compelling circumstances justifying
lesser sentences. It was further
argued that the sentences were shockingly inappropriate and that the
magistrate erred in not treating
all counts as one for purpose of
sentencing.
[6] In respect of count
1, robbery with aggravating circumstances (section
1, Act 51
of 1977)
this court finds that the background facts at the trial of both
appellants established that this was a planned, armed
robbery. The
arguments raised by the defence in respect of count 1 are untenable.
In
S v ROSLEE
[2006] ZASCA 14
;
2006 (1) SACR 537
(SCA) Navsa JA
indicated at paragraph [33] that:
“
Although
there is no
onus
on
an accused to prove the presence of substantial and compelling
circumstances, it must be so that an accused who intends to persuade
a court to impose a sentence less than that prescribed should
pertinently raise such circumstances for consideration. In a given
case it may not be enough for an accused to argue that such
circumstances should be inferred from or found in the evidence
adduced
by the State.”
The essence of the
MALGAS
judgment
2001 (2) SA 1222
(SCA) and of the
DODO
judgment
[2001] ZACC 16
;
2001 (3) SA 382
(CC) is that disproportionate sentences are
not to be imposed. Also, the fact that an appellant is a first
offender is not in itself
necessarily sufficient to depart from the
prescribed minimum sentence.
[7] In imposing sentence
on count 1 in terms of the discretionary minimum sentence provisions
of the Criminal Laws Amendment Act,
105 of 1997 (as amended), this
court finds that the regional magistrate considered all material
facts relevant to sentence, Further,
this court finds that the
regional magistrate exercised its discretion judicially and
correctly. There is also no misdirection
on the facts relevant to the
sentence imposed. Consequently this court finds no reason to
interfere with the sentence imposed by
the regional magistrate in
respect of count 1.
[8] In respect of counts
2 and 3 (possession of firearm and ammunition respectively) the
defence argued that the regional magistrate
misdirected itself in
imposing sentence on the appellants in that
(i) the magistrate did
not take into consideration that the first appellant and the second
appellant had been incarcerated for approx
one (1) year before
sentence.
the regional magistrate
did not take into consideration that the three counts arise from the
same set of facts as to time and
place and the cumulative effect in
respect thereof.
[9] It is a
well-established principle that the appeal court may interfere in a
lower court’s decision, where such court had
not exercised its
discretion judicially. There is merit in counsel’s argument in
that this court is persuaded that the abovementioned
constitute
material misdirection by the regional magistrate, and, the interests
of justice allows this court to interfere with
the sentence imposed
by the lower court in respect of counts 2 and 3. In our view, an
appropriate sentence, in respect of each
appellant on counts 2 and 3,
taken together for purposes of sentence, is three (3) years
consequently, the sentence imposed by
the regional magistrate on
counts 2 and 3 falls to be set aside and replaced.
[10] In the result this
court makes the following orders:
10.1 The appeals of the
first appellant and the second appellant on count 1 are dismissed and
their sentences are confirmed.
10.2 The appeals of the
first appellant and the second appellant on counts 2 and 3 are
upheld.
10.3 The sentences of the
first appellant and the second appellant are set aside and replaced
with the following sentence:
first appellant and
second appellant are each sentenced to three (3) years
imprisonment.
This is an aspect
that trial courts and legal representatives should take into account.
___________
S. SINGH, AJ
I concur.
________________________
C.H.G. VAN DER MERWE,
J
On
behalf of appellants: Mr. L. Stoffberg
Instructed
by:
Stoffberg
Attorneys
LINDLEY
On
behalf of respondent: Adv. W.J. Harrington
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp