IN THE NORTH WEST HIGH COURT
MAFIKENG
CA2 / 2013

In the matter between:

THUBISI THEBEETSILE TSHEPO				Appellant

and

STATE

HENDRICKS J, KGOELE J

DATE OF HEARING			:	01 March 2013.
DATE OF JUDGMENT			:	28 March 2013

FOR THE APPELLANT		:	Advocate Nkahle
FOR THE RESPONDENT		:	Advocate Van Niekerk

JUDGMENT

KGOELE J:

[1]	The appellant was arraigned in the Regional Court Ganyesa on a charge of Robbery with aggravating circumstances read with the provisions of section 51 (2) of the Criminal Law Amendment Act 51 of 1977.  He was convicted as charged and was sentenced to fifteen (15) years direct imprisonment.  This appeal is against sentence only.

[2]	The background facts of this matter is to the effect that the appellant was in the court a quo charged together with five other accused.  He was accused no. 6.  He together with accused no. 1 were convicted by the trial court whereas the rest were acquitted.  Allegations against them was that they robbed Kagiso Moheme a cash amount of R2 280-00 and meat worth R600-00.  Aggravating circumstances present in the sense that they wielded dangerous weapon to wit, knives, to the complainant and threatened to inflict grievous bodily harm to him.  Accused no. 1 was having an Okapi knife whilst appellant was carrying a panga knife during the incident.  The complainant is a police officer working at the SAPS dog Unit.  When the incident took place he was coming from duty around 19h00.  He had his luggage, two plastic bags containing meat inside.  As he proceeded towards the direction of his house after passing the Kagiso Local Municipality Offices, six people who were behind him threw stones at him.  He dodged the stones and the six did not stop their action.  They ended up catching him and taking the articles mentioned in the charge sheet from him.  The appellant and his co-accused continued chasing him after the articles were taken from him. His efforts of firing two shots did not help him as they continued to pelt stones towards him.  He ran into a nearby shop. The shopkeeper rescued him by closing the door of the shop and phoning the police.

[3]	The appellant’s ground of appeal are that:-

-	The sentence imposed is excessively long and induce a sense of shock;
-	Despite the appellant and his co-convict (accused 1 in the court a quo) having different personal circumstances, the court a quo meted out the same sentence.

[4]	It is the submission of the appellant’s counsel that the sentence warrant interference by this court.

[5]	The respondent’s counsel, correct in my view, conceded to the fact that there was a misdirection on the part of the trial court when it imposed the same sentence to both the appellant and his co-convict.  He based his concession on the following reasons:-

5.1	The appellant’s co-convict who is not before court was also
     sentenced to 15 years imprisonment;

5.2	It must be mentioned from the outset that the co convict had a
list of previous convictions which were relevant and had an element of violence.  Further that his role in the commission of the offence was also much more prominent than that of the appellant;

5.3	The sentence imposed by the learned magistrate is attacked on
the basis that the magistrate ought to have found compelling and substantial circumstances to be present.  The fact the magistrate never in the judgment on sentence alluded to the appellants personal circumstances is of a major concern;

5.4	The respondent submitted that this is a misdirection on the part
of the trial court that enables the Court of Appeal to consider sentence afresh;

5.5	On the totality of the evidence the mitigating factors in favour of
     the appellant are the following;

•	The appellant was young when the offence was committed. (21 years of age);
•	The appellant was gainfully employed;
•	The appellant is a first offender;
•	The complainant did not sustain injuries at the hands of the appellant;
•	The appellant have a minor child.

5.6	However sight must not be lost over the seriousness of the
offence and the amount of violence involved in committing the offence. The following factors are aggravating and must be taken into account:-

•	The appellant acted in concert with his co-accused;
•	Meat worth R600 and cash of about R2200 were robbed;
•	The complainant was pursued by the appellant and his co accused after the meat was taken from him;
•	Knives were used to commit the robbery although the complainant was not stabbed.

5.7	However serious and aggravating these factors may be, one
cannot escape the intention of the Legislature where it is ordered that where substantial and compelling circumstances exist a court must impose a lesser sentence than the prescribed minimum sentence;  

5.8	The respondent concedes that the cumulative effect of the personal circumstances of the appellant constitutes substantial and compelling circumstances as required for a court to deviate from the prescribed minimum sentence of 15 years imprisonment.

[6]	The seminal judgment on how courts should deal with “substantial and compelling circumstances” is found in the case of S v Malgas 2001 (1) SACR 466 (SCA); 2001 (2) SA 1222 (SCA).  The gist of the Malgas case is that specified sentences should not be departed from flimsily and lightly.  However if the circumstances of the case are that it calls for a departure, the court should weigh all considerations traditionally relevant to sentencing.  Mitigating and aggravating circumstances had to be weighed against each other. 	

[7]	Sentencing is primarily in the discretion of the trial court and a court of appeal will not lightly interfere with a sentence imposed by the trial court.  Only where it is clear that the discretion of the trial court was not exercised judicially or reasonably will the court of appeal be entitled to interfere.  In the Malgas case quoted above, it was further held:

“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it.  To do so would be to usurp the sentencing discretion of the trial court.  Where material misdirection by the trial court vitiates its exercise of the discretion, an appellate court is of course entitled to consider the question of sentence afresh.  In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court.  It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as shocking, ‘startling’ or ‘disturbingly inappropriate'.” 

[8]	I can do no more than to agree with the submission made by both counsel.  In this matter this court is at large to interfere with the sentence imposed by the trial court given the material misdirection committed by the trial court when it considered the sentence it imposed on the appellant.

[9]	However, the crime the appellant committed remains serious.  Apart from its seriousness, also prevalent.  These factors dictate that the elements of retribution and deterrence must come to the fore when assessing an appropriate sentence.

[10]	Consequently the following order is made:-

	10.1	The appeal against sentence is upheld
10.1	The sentence imposed by the trial court in respect of the appellant is set aside and is substituted by the following:-

“Eight (8) years imprisonment which is antedated to the 13th of October 2009”.

________________ 
A M KGOELE
JUDGE OF THE HIGH COURT

I agree

________________
R D HENDRICKS
JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPELLANT		:	MAFIKENG JUSTICE CENTRE
FOR THE RESPONDENT		:	STATE ATTORNEY