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[2009] ZAGPPHC 55
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S v Tshepiso (A647/2008) [2009] ZAGPPHC 55 (15 May 2009)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT, PRETORIA)
DATE: 15/05/2009
CASE
NO: A647/2008
UNREPORTABLE
In the matter between:
TSHEPISO
BENNET MAKOE APPELLANT
And
THE STATE
RESPONDENT
JUDGMENT
MAVUNDLA. J.;
[1] The appellant an adult male
aged 21 at the time of his arrest, was charged and sentenced at the
regional court at Benoni on
2 April 2008 as follows:
Count one: robbery with
aggravating circumstances, and sentenced to 15 years imprisonment;
[2] The leave to appeal against
sentence was granted to the appellant.
[3] The appellant was dully
represented. He pleaded guilty to the court
of robbery with aggravating
circumstances read with the provision of
of section 51(2) of the Criminal
Amendment Act 105 OF 1997, in that on or about 01/ 02/ 07 in the
division of Daveyton he did unlawfully
and intentionally assault
Themba Charles Tshemake and with force take the following, to wit
money amounting to R30-00 his property
in his lawful possession,
aggravating circumstances being that the appellant and others made
use of a knife.
[4] In his plea explanation in
terms of section 112 (2) of the Criminal Procedure Act, the appellant
admitted that his attorney
explained to him the proceedings, the
nature of the charge, the consequences of his plea. He admitted that
he plead guilty to the
charge voluntary, without any undue influence.
He admitted that on 1 December 2007 at 23:00 at Daveyton he
forcefully took an amount
of R30. 00 from the complainant, Mr.
Temba The make, by stabbing him with a knife. He admitted that his
action constituted aggravating
circumstances as referred to in
Section 1 of Act 51 of 1977. He admitted that he had intended to
permanently appropriate the aforesaid
amount for himself. He admitted
that he knew that his action was unlawful and that he had neither
legal excuse nor permission to
take the money from the complainant as
he did. He conceded that the complainant sustained injuries as the
result of his attack.
He was then duly found guilty on the strength
of his plea, quite correctly so.
[5] The prosecutor did not prove
any previous convictions against the appellant. The prosecutor handed
the J88 form as exhibit
B, which showed that the complainant
sustained multiple lacerations on right forearm, skull and on the
back and received six stitches
on the skull.
[6] In mitigation, Mr. Temba
Charles Tshemake was called to testify for the accused. (According to
charge sheet, the appellant
was 21 years old at the time of his
arrest.) Mr. Tshemake testified that he was 20 years old. He
testified that he and the complainant
were friends for 20 years. He
confirmed that the appellant robbed him on the date in question. He
confirmed that he on the previous
occasion had approached Ms Green
the appellant’s attorney of record, advising that he and the
appellant are friends and that
he does not want him to go to prison
and that they have reconciled and wanted to have the charge against
the appellant withdrawn.
He stated that the reason that he was
stabbed by the appellant is because he was cheeky on that day. He
confirmed that the appellant
apologised and gave him back his amount.
Under cross examination the prosecutor pointed out that the
complainant sustained 5 centimetre
injury. The complaint merely said
that he his listing. He said under cross examination that the
appellant was drunk. He confirmed
that he went to hospital as the
result of the injury he sustained from being stabbed by the
appellant. He received six stitches.
[7] According to the charge sheet,
the appellant was 20 years old at the time of the commission of the
offence. The appellant was
at a prime stage of his youth.
Youth
is an important consideration. It requires that there should be a
balancing act done, the consideration of the youthfulness
of the
offender and the gravity of the offence he has committed. Vide S v N
2000(1) SACR 209 at page 225 in regard to minimum sentence.
The age
of the accused needs not to be ignored in the evaluation of factors
to be taken into account when deciding whether or not
the minimum
sentence should be imposed.
[8]
It
would seem that liquor had somehow played some roll. In S v M
1994
92) SACR 24
the question of youthfulness of the appellant and the
effect of liquor on him prior to the commission of the offence were
considered
to be factors that weigh in favour of the accused. In casu
it does no appear from the record that this factor was considered in
determining whether there exist substantial and compelling
circumstances warranting that the magistrate should exercise his
discretion
and departs from imposing the prescribed minimum sentence.
[9]
In S v Blaauw (supra)
Van Heerden J was dealing with an appellant who was 18 years and six
weeks old at the time when he committed
a very serious offence. He
was sentenced to life imprisonment, which was the prescribed
sentence. Van Heerden J found that his
youth at the time of the
offence was relevant to the question whether there were substantial
compelling circumstances which entitled
the court to impose a lesser
sentence than life imprisonment, particularly in the light of the
provisions of section 51 (3) (b)
of the Act. She accordingly upheld
the appeal, and imposed a lesser sentence.
[10] In the matter of M v S
1
the Court said that: “14] A factor which is relevant to the
sentencing process, and which could have a mitigating effect
on the
punishment to be imposed, is the arbitrary result which would follow
if a difference of (for example) one day in age of
the accused
determined whether he spent many years in prison. The otherwise
arbitrary impact of section 51 (3) (b) is, however,
mitigated by the
fact that the court has a discretion in that it may choose not to
impose the prescribed minimum sentence if it
is of the view that
substantial and compelling circumstances exist. To my mind, one of
those circumstances must be the arbitrary
result which would follow
if ( for example an accused person who was 18 years old at the time
of the commission of the offence,
had to be sentenced to 15 years
imprisonment ( or for that matter life imprisonment), whereas if he
or she had been two days younger
at the time of the offence, the
penalty would have been very substantially less.
[12] I am of the view that the
magistrate has misdirected himself in finding that there are no
substantial and compelling circumstances
and imposed the sentence of
15 years in respect of the second count of robbery. I am of the view
that an appropriate sentence,
in the circumstances of this case, the
following sentence will be appropriate.
[13] The following order is made:
That the appeal against sentence
of 15 years imprisonment is upheld and set aside and substituted
with the following sentence:
‘
That the accused is
sentenced to 8years imprisonment.
That the running of the sentence
is backdated to 2 April 2008.
HEARD:
04 MAY 2009
DELIVERED: 15 MAY 2009
N. M. MAVUNDLA
JUDGE OF THE COURT
I AGREE
T. PHALANE
ACTING JUDGE OF THE COURT
1
2004 (2)ALL SA 56
(C) at 59c-i