IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Appeal No. : 79/2003
In the appeal between:
PETRUS SAMPI MOFOKENG Appellant
versus
THE STATE Respondent
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CORAM: VAN DER MERWE J et MATSEPE AJ
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HEARD ON: 7 NOVEMBER 2005
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JUDGEMENT BY: MATSEPE AJ
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DELIVERED ON: 10 NOVEMBER 2005
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[1] The appellant was found guilty in the Regional Court, Virginia
on 22 November 1999 on a count of housebreaking with
intention to commit robbery and robbery with aggravating
circumstances and was sentenced to a 15 (fifteen) year
prison term.
[2] The appellant is appealing against sentence only.
[3] The sentence imposed was imposed on the basis of the
provisions of section 51(2) and 51(3) of Act 105 of 1997. The
court a quo had found that there were no substantial and
compelling circumstances compelling the court to depart from the
minimum sentence provided for. The question therefore that
needs to be canvassed is whether the court a quo misdirected
itself in finding that in the circumstances of this case there were no
substantial and compelling circumstances. It is not for this Court to
approach this issue as if it were the trial court itself and thereafter
to substitute the sentence arrived at by the court a quo simply
because it is preferred.
[4] Indeed it was the approach of the court a quo that if it had
found the existence of circumstances amounting to
substantial and compelling circumstances as provided for in
section 51(3)(a), it would have been empowered to impose a
lesser sentence than the one prescribed. In the matter of
STATE v MALGAS 2001 (1) SACR 469 (SCA) p. 469 b – c
the court states the following:
“the greater the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will be that it may be
perpetrating an injustice.”
A sense of unease can only rightly exist if there is weighty
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justification for it.
[5] The court comes to the conclusion that the circumstances
therein cumulatively regarded indicated that a sentence of
life imprisonment would be unjust and that thus it qualified as
one where substantial and compelling circumstances are
present. In that case the appellant had a clean record, she
was driven into the commission of the offence by a
domineering personality, she gained nothing from the crime,
she showed genuine remorse and further because of her
youthfulness the prospects of her rehabilitation were real if
she were to serve a long period of imprisonment.
[6] In this case the circumstances of the appellant were as
follows:
1. He was nineteen years old at the commission of the
crime.
2. He ultimately realised his error and changed his plea to
a plea of guilty which shows acknowledgment of
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wrongdoing on his part and remorse therefore.
3. He was a first offender.
4. He played a lesser role in the commission of the crime
and it appears that the coperpetrator of the crime was
dominating him.
5. The prospects of rehabilitation are real as he pleaded
guilty.
6. Though the value of the items stolen was R6 970,00
the appellant only took the TV set and duvets with a
total value of ± R1 000.00 which items were recovered
by the complainant.
[7] I am of the view that the cumulative effect of the facts noted
above amounts to substantial and compelling circumstances
that influence the imposition of the maximum sentence to be
imposed in line with the provisions of section 51(2) and 51(3)
of Act 105 of 1997.
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[8] It is therefore ordered that the sentence imposed by the trial
court be set aside and substituted with the following
sentence:
1. Appellant is sentenced to 8 (eight) years imprisonment.
The sentence must be deemed to have been imposed on
2 November 1999.
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T.V. MATSEPE, AJ
I agree.
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C.H.G. VAN DER MERWE, J
On behalf of appellant: Mr. J van H Vorster
Instructed by:
Vorster Botha Bredenkamp Inc
BLOEMFONTEIN
On behalf of respondent: Adv. L. Faber
Instructed by:
Director: Public Prosecutions
BLOEMFONTEIN
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/sp
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