IN THE HIGH COURT OF SOUTH AFRICA NORTH WEST DIVISION, MAHIKENG CRIMINAL APPEAL

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA NORTH WEST DIVISION, MAHIKENG CASE NO. CA 04/2014 In the matter between: BONGANI MKHIZE APPELLANT And THE STATE RESPONDENT LANDMAN J AND GUTTA J. CRIMINAL APPEAL GUTTA J. A. INTRODUCTION [1] The appellant was convicted in the Regional Court held at Lichtenburg on 02 September 2008 on two counts of robbery with aggravating circumstances and sentenced to 15 years imprisonment for each count of robbery, with 10 years imprisonment on count 2 to be served concurrently with the 15 years sentence in count 1. [2] Leave to appeal the sentence was granted on 03 September Hence, this appeal is on sentence only.

2 2 [3] The applicant also applied for Condonation for the late prosecution of the appeal. The application is not opposed and the appellant has provided a reasonable explanation for the delay. B. GROUNDS OF APPEAL [4] The appellant submitted the following: 1.1 The sentence of 15 years on each count of robbery with aggravating circumstances is excessively long and induces a sense of shock; 1.2 The court a quo misdirected itself by finding that there were no substantial and compelling circumstances in favor of the appellant warranting departure from prescribed minimum sentence of 15 years; 1.3 The court erred in not ordering total concurrent run of sentences taking into account that the offences were committed at the same time, place and they were a result of single criminal enterprise; and 1.4 The court a quo over emphasized the seriousness of the offences and under scored the mitigating factors of the appellant. C. FACTS [5] The facts briefly are that, on 12 October 2001, the complainant in count 1, Mr Molayakgosi, a petrol attendant at a petrol station, was on duty when the appellant and his companion arrived at the petrol station and pointed a firearm at him. They took his cellphone and money. The complainant in count 2, Mr Dithato, a police officer, was on duty on the same night and he and his colleague, Mr Mogoje, went to the petrol station to investigate. When they arrived at the petrol station, the appellant and his companion pointed a firearm at them and they took the

3 3 complaint s cellphone and firearm and the keys to the police vehicle. Pursuant thereto, two more police officers arrived and the appellant and his companion were apprehended. D. SENTENCE [6] Counsel for the appellant submitted that the mitigating factors cumulatively considered, constitute compelling and substantial circumstances to warrant a deviation from the minimum sentence of 15 years imprisonment. [7] He submitted that an appropriate sentence is 10 years imprisonment on each count, which are to run concurrently. [8] It is trite that the imposition of a sentence is a matter for the discretion of the Court tasked with imposing same. A court of appeal will generally only interfere with the sentence imposed by a lower court in circumstances where the reasoning of the trial court is vitiated by misdirection or where the sentence imposed is startlingly inappropriate and induces a sense of shock or where there is a striking disparity between the sentence imposed and that which a court of appeal would impose. See S v Kgosimore 1999 (2) SACR 238 (SCA) at 241G H, where the Court held that the true enquiry is:... Whether there was a proper and reasonable exercise of the discretion bestowed upon the court imposing sentence.... Either the discretion was properly and reasonably exercised or it was not. If it was, a court of appeal has no power to interfere, if it was not, it is free to do so. See also S v Coetzee 2010 (1) SACR 176 (SCA); S v Matlala 2003 (1) SACR 80 (SCA). [9] The appellant s personal circumstances and mitigating factors are the following: 9.1 The appellant is a first offender; 9.2 He was 36 years old at the time of sentencing;

4 4 9.3 He was married and has four dependent children aged 4, 7, 11 and 14 respectively; 9.4 the appellant was a breadwinner and gainfully employed as a security guard for 10 years and earned a salary R per month; 9.5 He also made a living from being a photographer over weekends and made about R weekly; 9.6 he further mended his ways since the commission of the offences and in 2004 he joined the Apostolic Church in Christ; 9.7 All the items were recovered and restored to their respective owners. [10] Factors in aggravation of sentence are the following: 10.1 A firearm was used in the commission of the offences; 10.2 The complainant in count 2 was a police officer. See S v Ndima 1994 (2) SACR 525 (D) at 536c d. [11] The Court, in sentencing the accused, must consider the triad which consists of the crime, the offender and the interests of society. See S v Zinn 1969 (2) SA 536 (AD). Although the trial Court generally enjoys a wide and unfettered discretion when imposing a sentence, this discretion is curtailed where minimum sentences applies. [12] The minimum sentence of 15 years was applicable in respect of the crimes for which the appellant has been found guilty. The question arises whether there were substantial and compelling circumstances present to justify a deviation from the minimum sentence.

5 5 [13] According to Navsa JA, the case of S v Malgas 2001 (1) SA 1222 (SCA) is not only a good starting point but the principles stated therein are enduring and uncomplicated when considering whether there are substantial and compelling circumstances. See DPP KZN v Ngcobo 2009 (2) SACR 361 (SCA). [14] The Supreme Court of Appeal ( the SCA ) in S v Malgas supra at 1235F-1236C, paragraph 25, in determining the manner in which the question whether substantial and compelling circumstances exist, held that: All factors traditionally taken into account in sentencing continues to play a role, none is excluded at the outset from consideration in the sentencing process. The ultimate impact of all the circumstances relevant to the sentencing must be measured against the composite yardstick substantial and compelling and must be such as cumulatively justify a departure from the standardized response that the legislature has ordained. And at 1236C-F, paragraph 25: If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society so that an injustice would be done by imposing that sentence, there is a duty on the accused or the defence to produce evidence in order to convince the court that circumstances exist which justify the imposition of a lesser sentence. [15] In S v Matyityi 2011 (1) SACR 40 (SCA), the SCA held that the prescribed minimum sentence should not be departed from lightly or for flimsy reasons. [16] Although the appellant is a first offender, he is not a youthful offender, whose level of immaturity and moral blameworthiness are factors for consideration. [17] Police officers play a very important role in our society and their function is protect the citizens of this country. Hence, they should not become victims of crime. The fact that the appellant robbed a police officer of his firearm and motor vehicle weighs heavily against the appellant.

6 6 [18] The SCA in S v Mhlakaza 1997 (1) SACR 515 (SCA) at 518a, considered the following statement of the trial court regarding attacks on the police to be fully justified: Hierdie aanvalle op die polisiediens behoort gesien te word as ʼn oorlog teen wet in order deur hierdie groep beroepsmisdadigers wat geet agling het vir beskaafde standaarde en demokratiese regstelsels nie: wat geen gemente he nie, geen beskaafde af morele standandaarde eerbiedig nie en gewoonlik geen rehabilitasiepotensiaal het nie. [19] Taking in consideration the seriousness of the crime and its prevalence, the personal circumstances of the appellant, the aggravating circumstances, the interests of society in protecting law enforcement officers from attack, the elements of deterrence and retribution, I am of the view that there are no substantial and compelling circumstances to deviate from the minimum prescribed sentence of 15 years imprisonment. [20] However, I am of the view that the order by the Court a quo effectively means that the appellant will serve a 25 year term of imprisonment. [21] When considering the circumstances of this case and the fact that both counts of robbery were committed on the same day, at the petrol station, one after another, then the result of the cumulative effect of the sentence induces a sense of shock. See S v Anderson 1964 (3) 494 (A) at 459. [22] I am of the view that the Learned Magistrate misdirected himself in not ordering the sentences to run concurrently. E. ORDER [23] Accordingly, I grant the following order: a) The appeal against sentence is upheld.

7 7 b) The sentence imposed by the Regional Magistrate is set aside and substituted with the order that: The Accused is sentenced to 15 years imprisonment on each of the two counts. It is ordered that the sentences should run concurrently. The effective term of imprisonment is 15 years. c) The sentence is antedated to 02 September N. GUTTA JUDGE OF THE HIGH COURT

8 8 I agree A.A. LANDMAN JUDGE OF THE HIGH COURT

9 9 APPEARANCES DATE OF HEARING : 14 MARCH 2014 DATE OF JUDGMENT : 27 MARCH 2014 COUNSEL FOR APPELLANT COUNSEL FOR RESPONDENT ATTORNEYS FOR APPELLANT ATTORNEYS FOR RESPONDENT : ADV R.J. NKHAHLE : ADV M.F. RASAKANYA : MAFIKENG JUSTICE CENTRE : THE DIRECTOR OF PUBLIC PROSECUTIONS