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[2006] ZAFSHC 80
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Mookeng v S [2006] ZAFSHC 80 (29 June 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : A195/2005
In
the appeal between:-
JOHANNES TANKISO
MOFOKENG
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI
J
et
C.J.
MUSI J
HEARD
ON:
26
JUNE 2006
_____________________________________________________
JUDGMENT
BY:
RAMPAI
J
DELIVERED ON:
29
JUNE 2006
[1] The appellant was
tried with two others in the Bethlehem Regional Court where they all
pleaded guilty to four charges on the 14
th
January 2002. On the same day they were convicted on their pleas in
respect of all four charges. Each of them received an effective
jail
term of nine years. Now the appellant, accused number 1 in the court
below, comes on appeal against the convictions and the
sentences.
His co-accused, Buti Samuel Tshabalala, accused number 2 and Laka
Simon Mofokeng, accused number 3, are not before us
in this appeal.
Therefore I shall say no more about them, if possible.
[2] The appellant was
charged with the following charges: Housebreaking with intent to
steal and theft of goods worth R27 570,00;
theft of a motor vehicle
a Toyota Hilux LDV with registration number CFR 054 FS worth R37
900,00; unlawful possession of a fire-arm;
a 30-06 rifle and again
unlawful possession of a fire-arm .38 special luger. It was alleged
that the accused committed the four
crimes on the farm Vadersgift in
the district of Bethlehem between the 2
nd
January 2002 and the 3
rd
January 2002.
[3] Since the appellantâs
plea of guilty was accepted by the State, no evidence for the State
was led. The appellant was thus convicted
on his plea in connection
with all four charges on the 14
th
January 2002.
[4] A month later on the
14
th
February 2002 the appellant was sentenced to six years imprisonment
in respect of burglary and the theft of the motor vehicle, in
other
words the first and the second charges, were taken together for the
purposes of sentence. Similarly the unlawful possession
of 30-06
rifle and the unlawful possession of .38 special luger were taken as
one for the purpose of sentence. The prison term of
three years was
imposed in respect of the third and the fourth charges.
[5] As regards the merits
counsel for the respondent, Ms. Ferreira, submitted in her heads of
argument and during the course of oral
argument that the first charge
and the second charge were species of one and the same criminal
enterprise or conduct, namely stealing.
The separation of the two
into two distinct charges amounted to a duplication of charges. In
turn the duplication of charges led
to the erroneous duplication of
convictions. I am persuaded by Ms. Ferreiraâs submission. When
the appellant set out to the farm
in question, the overriding
criminal intent on his mind was to steal and to steal at all costs.
His mindset did not differentiate
between the motor vehicle outside
the house and the goods inside. Whether the goods he wanted to steal
were outside or inside was
subjectively not an issue to him.
Housebreaking and theft, as I understand it, is basically stealing.
It is an aggravated form
of stealing. Therefore the appellant ought
to have been convicted of the first charge only which would have
embodied the second
charge. Thus, there was only one crime
committed. There is a tendency in the lower courts to treat cases
involving theft of motor
vehicles as if they were a special category
of theft. The tendency is wrong and has to cease.
Vide
Hiemstra:
Suid
Afrikaanse Strafproses
,
sixth edition p. 235.
[6] The same
considerations apply to the third and the fourth charges. In my
view, the appellant was supposed to have been found
guilty of one
count of unlawful possession of a fire-arm instead of two. Both
fire-arms were simultaneously found in his possession
and were stolen
during the same criminal venture from the same complainant. There
was a single intent to steal the fire-arms and
a single intent to
possess them. The possession of the two fire-arms therefore
constituted one criminal act.
Hiemstra,
supra
p. 235;
S
v GROBLER EN âN ANDER
1966 (1) SA 507
(AD);
S
v DIEDERICKS
1984 (3) SA 814
(C).
[7] In the circumstances
I have come to the conclusion that the court below erred in
convicting the appellant of the second and the
fourth charges.
Instead the appellant should have been convicted of the first and the
third charges only. On account of these two
misdirections, I would
set aside the convictions in respect of the second and the fourth
charges.
[8] It
seems to me that the court below adopted a proper approach in the
process of sentencing the appellant. It took into account
the
customary triad of the relevant factors and considered them in an
appropriate and a balanced manner.
S
v RABIE
1975 (4) SA 855
(AD) per Holmes JA.
[9] The
sentencing of an offender or the determination of a proper sentence
for an offender falls primarily in the discretion of a
trial court.
We cannot interfere with the exercise of a discretion merely because
we would have exercised that discretion differently.
S
v SALZWEDEL & OTHERS
2000 (1) ALL SA 229
(AD) per Mahomed CJ.
On
this appellate forum we are not at liberty to interfere with the
exercise of a discretion unless we are satisfied that the discretion
was not judicially exercised when the punishment was meted out.
S
v MAKONDO
2002 (1) ALL SA 431
(SCA) at 431 e â f;
S
v FOSE
1991 (1) SACR 426
(ECD);
S
v DE JAGER
1965 (2) SA 612
(AD);
S
v M
1976 (3) SA 644
(AD).
[10] The
court below took into account the following mitigating factors: The
appellant was 21 years old. He has passed standard
4 at school. He
was gainfully employed and earned R300,00 per month at the time of
his arrest. He was married. He was the father
of one dependent
minor child. He pleaded guilty.
[11] The court below also
took into account the following aggravating factors: The nature and
the seriousness of the crimes of burglary
and stealing and possessing
unlicensed fire-arms; the interest of the community; the huge
quantity of the stolen goods as well
as their high value of
approximately R65 470,00 when the vehicle and the fire-arms are also
taken into consideration; the irreparable
damage to the stolen motor
vehicle; the number of the fire-arms; the appellantâs record of
previous convictions.
[12] The appellantâs
lawyer conceded that the sentence could hardly be described as
shockingly inappropriate and therefore unbalanced.
The concession
was correctly made. The sentence was in no way shockingly severe or
inappropriate in the circumstances where the
aggravating factors
eclipsed the mitigating factors by far. A very strong aggravating
factor was the fact that the appellant was
a member of a criminal
gang. The court had to punish him deterrently and preventatively. I
am of the view that the trial court
did not misdirect itself in
sentencing the appellant in respect of the first and the third
charges. The sentences of six years imprisonment
in respect of the
first charge alone and three years imprisonment in respect of the
third charge alone appear to me in order. I
am inclined to confirm
them. The sentencing of the appellant in respect of the second
charge and the fourth charge was a misdirection.
I would therefore
set aside the sentences relating to the second and the fourth
charges.
[13] Accordingly I make
the following order:
13.1 The appeal against
the conviction in respect of the first and the third charges fails.
13.2 The
conviction in respect of the first and the third charges is
confirmed.
13.3 The appeal against
the conviction and sentence in respect of the second and the fourth
charges succeeds.
13.4 The conviction and
sentence in respect of the second and the fourth charges are set
aside.
13.5 The
appeal against the sentence imposed in respect of the first charge
fails.
13.6 The
sentence of six years imprisonment stands in respect of the first
charge alone.
13.7 The
appeal against the sentence imposed in respect of the third charge
fails.
13.8 The
sentence of three years imprisonment stands in respect of the third
charge alone.
______________
M.H.
RAMPAI, J
I concur.
___________
C.J.
MUSI, J
On
behalf of appellant: Adv I J Bezuidenhout
Instructed
by:
Legal
Aid Board
BLOEMFONTEIN
On behalf of
respondent: Adv A Ferreira
Instructed by:
DOV
BLOEMFONTEIN
/sp