REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNEBURG)

(1)    REPORTABLE:  YES / NO
(2)    OF INTEREST TO OTHER JUDGES:  YES / NO
(3)    REVISED

______________________         ________________________
DATE                                               SIGNATURE
	
				                     CASE NUMBER: 	SS207/2014 

In the matter of

THE STATE		

V

MOSELLA ISAAC		ACCUSED

_________________________________________________________________

JUDGMENT
_________________________________________________________________

DOSIO AJ:
SENTENCE
[1]	The accused has pleaded guilty to all three counts.  Count one is a crime of kidnapping. Count two is the crime of robbery with aggravating circumstances as intended in section 1 of Act 51 of 1977 read with the provisions of section 51 (2) and schedule 2 of the Criminal law Amendment Act 105 of 1977 (“Criminal Law Amendment Act”) as amended. Count three is the crime of murder read with the provisions of section 51 (1) of the Criminal Law Amendment Act as amended.

 [2]	For purposes of sentence this court has taken into consideration the accused’s personal circumstances, the seriousness of the offence and the interests of the community. The court has borne in mind the main purposes of sentence which is deterrence, retribution, reformation and prevention.

[3]	As regards the events of this fateful evening in respect to count 1, 2 and 3, this court has merely the accused’s explanation incorporated in the plea of guilty.  

[4]	The personal circumstances of the accused are as follows; he is forty (40) years old, unmarried and has one child. His level of education is standard 9. Before his arrest he was unemployed due to the fact that he was shot whilst working as a security officer. He is still attending hospital for medication. He has one previous conviction of assault in 1998 where he was sentenced to a fine of one hundred Rand (R100). 

[5]	In respect to the seriousness of the offences this court would like to state as follows:

	In respect to count 1
	Tying up someone and holding them against their own free will, thereby depriving them of their freedom of movement is a serious offence. The deceased’s hands and feet were tied with a rope.
	
	In respect to count 2
	The deceased was running a spaza shop in the yard where the accused and the two men who assisted him in the crime all lived. This robbery was planned in that the accused and the other two men who assisted him, lured the deceased to Lucky Kgakatsane’s room. The accused together with Robert Mofokeng and Lucky Kgakatsane decided to switch off the electricity from the main switch which was in the latter’s room. This caused the deceased to come to Lucky Kgakatsane’s room. The accused and the other two men then over-powered him and tied him up. This enabled the three men to rob the deceased of R1200 in cash, his cell phone and 6 loose cigarettes. It is clear the threat to inflict serious bodily harm was imminent when these three men tied up the deceased. This threat materialized when the accused strangled the deceased.  

	In respect to count 3
	Murder is the most serious of crimes. It not only ended the deceased’s life, but it left  hardship for the family members left behind who possibly depended on the deceased for their survival. The accused killed the deceased to silence him. This deceased was tied up and was no threat to the accused. He was an innocent and defenceless man. What makes this crime more heinous is that instead of taking the deceased’s possessions and leaving him to be found with dignity by his loved ones, the accused, together with the other two men decided to hide the body and dump it in Ntabamhlophe. This must have created more pain and anguish to the family members who must have had sleepless nights wondering what had happened to the deceased. The body of the deceased was found eight days later in a severe state of decomposition. 

[6]	In respect to the interests of the community, this court has taken note of the fact that the community observes the sentences that courts impose and the community expect that the criminal law be enforced and that offenders be punished. The community must receive some recognition in the sentences the courts impose, otherwise the community will take the law into their own hands. If a proper sentence is imposed it may deter others from committing them.

[7]	In respect to count two (2) the provisions of the Criminal Law Amendment Act with specific reference to section 51 (2) dictates that notwithstanding any other law but subject to subsection (3) and (6), an accused who has been convicted of a Part two of Schedule 2 offence, which includes robbery with aggravating circumstances, shall in the case of a first offender be sentenced to a period of imprisonment for a period of not less than 15 years.

[8]	In respect to count three (3) the provisions of the Criminal Law Amendment Act with specific reference to section 51 (1) dictates that if an accused has been convicted of an offence referred to in part 1 of schedule 2, he shall be sentenced to life imprisonment. The death of the deceased was caused by the accused whilst committing the offence of robbery with aggravating circumstances. The accused had the intention in the form of dolus eventualis. Although this murder was not planned, it was committed whilst executing the robbery with aggravating circumstances, accordingly the offence falls within the ambit of a part 1 of schedule 2.
  
[9]	The court has notwithstanding the application of the prescribed minimum sentences, considered other sentencing options. This court does not find that a fine, a suspended sentence or correctional supervision is appropriate in these circumstances.

[10]	Section 51 (3) of the Criminal Law Amendment Act states that if any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist then the court may impose a lesser sentence. 

[11]	As stated by the learned Marais JA in the case of S v Malgas 2001 (1) SACR 469 SCA, paragraph I;
	
	“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, it is entitled to impose a lesser sentence.”

[12]	Both counsel addressed the court from the bar regarding sentence. No witnesses were called to testify.

[13]		The crime of murder and then hiding the body of the deceased is heinous. A sentence of life imprisonment is applicable in these circumstances. 

[14]	The defence counsel submitted that the accused after his arrest co-operated with the police, and on the day of his arrest made a pointing out. He did not deny his involvement in these crimes and pleaded guilty. Furthermore, at the time the accused killed the deceased he was not armed. The accused has shown remorse for his actions. The defence counsel requested this court to consider these aspects as substantial and compelling circumstances to depart from the minimum prescribed sentences applicable in respect to count two (2) and three (3). Counsel requested this court to order that the sentences imposed run concurrently.

[15]	Counsel for the State agreed that there are circumstances placed on record which would justify a departure from the prescribed minimum sentences.

[16]	These circumstances, cumulatively assessed, render a sentence of fifteen (15) imprisonment in respect to count two (2) and life imprisonment in respect to count three  unjust. They qualify as substantial and compelling circumstances.

[17]	Irrespective of these mitigating factors, I come to the conclusion that the crimes which the accused committed are so severe that a long term of incarceration cannot be avoided. 

[18]	It is unclear to this court why the accused transformed himself from an ostensibly law abiding citizen, who had worked as a security officer, into a person who decided to rob and murder this deceased. It is unclear to this court whether the accused acted out of need or greed. Although he pleaded guilty, it is clear that he may not have been arrested had the informers not declared his involvement in the crime.

[19]	This court cannot only consider the accused’s personal circumstances but must also consider the interests of the community. To focus on the well-being of the accused to the detriment of the interests of the community would result in a distorted and warped sentence. 	 

[20]	The accused has been in custody since the 27th of August 2014.

[21]	The cumulative effect of sentences has been considered by this court. All these offences arise from the single intent of robbing the deceased. Accordingly this court will order the concurrent running of sentences as the offences are inextricably linked in terms of the locality and time.

[22]	In the result the following order is made:

	The accused is sentenced to 5 years imprisonment on count 1
	The accused is sentenced to 10 years imprisonment on count 2.
	The accused is sentenced to 15 years imprisonment on count 3

             In terms of section 280(2) of the Criminal Procedure Act, the court orders that the five years imprisonment imposed on count one as well as five (5) years of the ten (10) imprisonment imposed on count two will run concurrently with the fifteen (15) years imprisonment imposed on count three.
	The effective term of imprisonment is twenty (20) years.

[23]	In terms of section 103 (1) (g) of the Firearms Control Act 60 of 2000, the accused is declared unfit to possess a firearm.

_______________________
D DOSIO 
ACTING JUDGE OF THE HIGH COURT

Appearances:

On behalf of the State 		Adv Stellenberg
			
On behalf of the Accused	Adv Mkhwanazi
		
Date Heard:		29 April 2015			
Handed down Sentence:		30 April 2015