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[2010] ZAFSHC 98
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Kau and Another v S [2010] ZAFSHC 98 (9 September 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A193/10
In the matter between:-
GODFREY MOLEFI KAU
….......................................
First
Appellant
ERNEST LEHLOHONOLO
MPHASA
…....................
Second
Appellant
and
THE STATE
….............................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
VAN
ZYL, J
_____________________________________________________
HEARD
ON:
30 AUGUST 2010
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
9 SEPTEMBER 2010
_____________________________________________________
[1] These proceedings
were about two appeals. The two appellants were convicted on a charge
of robbery with aggravating circumstances
in the Kroonstad Regional
Court on 24 February 2010. On the same day each of them was sentenced
to fifteen years imprisonment.
They now come on appeal only against
the sentence with the leave of the court
a quo
, which was
granted on 6 May 2010.
[2] The appellants were
tried in connection with a charge of robbery with aggravating
circumstances (section 1, Act No. 51 of 1997
read with section 51 Act
No. 105 of 1977). The charge was that they robbed a certain Ms C J le
Grange at Mega Drankwinkel at Steynsrus
on Friday, 24 July 2009. The
amount involved was R1 691,50. Notwithstanding their plea of not
guilty they were convicted on evidence.
[3] The grounds of their
appeals were, firstly, that the sentences imposed were unjust in that
such sentences were disproportionate
to the crime, the offender and
the interest of society. Secondly, they contended that the court
a
quo
had overemphasised the seriousness of the crime and the
interests of society at the expense of their personal circumstances
as
individual offenders.
[4] The issue on appeal
was whether there were substantial and compelling circumstances
present in the case to justify a lighter
sentence than the prescribed
minimum sentence imposed on each of the appellants.
S v MALGAS
2001 (1) SACR 469
(SCA) and
S v NDLOVU
2007 (1) SACR
535
(SCA) at p. 538
[5] Mr. Van Rensburg,
counsel for the appellant, submitted that there were substantial and
compelling circumstances in favour of
each of the appellants to
warrant deviation from the prescribed minimum sentences. He further
submitted that the court below erred
in finding otherwise.
[6] On behalf of the
respondent, Mr. Strauss, conceded that substantial and compelling
circumstances were present in favour of the
appellants. Therefore,
counsel further submitted that the contrary finding by the court
below, as well as the minimum sentences
imposed pursuant to such a
finding, were not supported by the respondent.
[7] In sentencing the
appellants the court
a quo
commented as follows:
On p. 86: 24 – p.
87: 3
“
Die erns is
soos wat sy getuig het dit kon netsowel haar keel gewees het wat
gesny was. ‘n Mens se keel is sag, so die gevaar
was werklik
daar dat sy keelaf kon gesny gewees het. Sy was gelukkig haar keel is
nie raak gesny nie.”
On p. 88: 5 - 7
“
Daar moet
wesenlike en dwingende omstandighede vir die Hof om af te wyk. Daar
is behalwe dat u betreklik jonk is geen sodanige omstandighede
voor
die Hof nie.”
[8] It is clear and
obvious from the first passage, quoted above, and a few other
passages that I deem unnecessary to refer to,
that undue influence
was placed on the potentially dangerous manner in which the second
appellant was brandishing the knife and
also on the gravity of the
crime itself. But no matter what devices and offensive posturing
these appellants employed in order
to get their own way, in other
words, to rob the victim, they were mere tactical devices designed to
threaten the victim and to
force her into submission. They had ample
opportunity of seriously harming the victim if they really wanted to,
but they did not.
In my view, the criminal enterprise of the
appellants, serious though it was, was not as dangerous as it was
made out to be. Therefore,
I am persuaded that the court
a quo
placed rather excessive stress on the gravity of the crime.
[9] The second passage,
quoted above, excluded from consideration all but one mitigating
factor in determining the question as to
whether substantial and
compelling circumstances existed or not. Besides the relative youth
of the appellants, the trial court
eliminated the rest of their
personal circumstances from the equation. To the extent that the
court
a quo
, right from the outset, disregarded such
traditional mitigating factors, it erred in my view. It has been
authoritatively held
that during the enquiry to determine whether or
not substantial and compelling circumstances exist, such traditional
factors continue
to play an important role -
S v MALGAS
,
supra
, par. [25]. The courts are enjoined to consider all
factors traditionally taken into account in sentencing.
[10] As regards the first
appellant, the following were mitigating factors: He was 20 years of
age at the time he committed the
crime. He had passed matric. He had
no fixed employment, but he occasionally did some casual jobs. He
stayed with and looked after
his sickly mother. He was married with
one minor child. His wife was unemployed. Although he had one
previous conviction of theft,
he had no previous conviction of
robbery. In that sense, he was a first offender. The victim sustained
no serious, permanent, physical
injuries. He was incarcerated for
almost seven months before he was sentenced.
[11] As regards the
second appellant, the mitigating factors were as follows: He was 19
years of age at the time he committed the
crime. He was a grade 9
learner at the time of his arrest. He was still single. He had no
dependent children. He stayed with his
grandmother. He was a first
offender in every sense of the word. He was incarcerated for almost
seven months before he was sentenced.
The victim sustained no serious
physical injuries of a permanent nature.
[12] The aggravating
factors were as follows: They committed armed robbery, one of the
scheduled offences and therefore a serious
crime. The second
appellant was armed with a knife. Both of them were arrested with
knives in their possessions. The victim was
an elderly lady of 54
years of age. She sustained two scratch wounds on her left hand. She
was severely traumatised. She was unable
to continue working at the
bottle store any longer. At the time of the trial she was training
someone to replace her. She was on
the verge of becoming unemployed
for the first time in sixteen years. The victim’s employer
suffered a real loss of over
R1 600,00. The appellants were
remorseless.
[13] The relative youth
of the appellants was correctly taken into account by the trial
court. However, that was not the only relevant
factor to be taken
into account in the process of determining whether or not substantial
and compelling circumstances existed in
favour of any of the
appellants. Certainly the relative youth of the appellants, their
status as first offenders cumulatively considered
together with the
rest of the mitigating factors relative to their respective
individual profiles, as earlier particularised, in
my view, are
substantial factors which compellingly call for a different response
to the prescribed minimum sentence regard been
had to the
circumstances of this particular case. To the extent that the court
a
quo
regarded these factors as unsubstantial and uncompelling to
justify a lighter sentence, it misdirected itself in my respectful
view. Since the misdirection was material, it vitiated the sentence
imposed. Therefore, we are at liberty to interfere.
[14] In my view a
decremental deviation of five years would render the sentences just
and balanced punishment for each of the appellants.
It will
appropriately satisfy the legitimate interest of society, the gravity
of the crime and the individual profile of each of
the appellants. In
my opinion any appellate interference greater or lesser than this
would disturb the balance.
[1 5] In the
circumstances I make the following order:
15.1 The appeals succeed.
15.2 The convictions
stand.
15.3 The sentences of
fifteen years imprisonment are set aside and substituted with one of
ten years imprisonment in respect of
each of the appellants.
15.4 The substitute
sentences are antedated to 24 February 2010, a date on which the
original sentences were imposed.
______________
M.H. RAMPAI, J
I
concur.
____________
C. VAN ZYL, J
On behalf of appellants:
Adv. T.B. van Rensburg
Instructed by:
Legal Board Aid
KROONSTAD
On behalf of respondent:
Adv. M. Strauss
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/sp