S v Mogorosi and Another (56/05) [2005] ZANWHC 32 (19 May 2005)

CA NO :56\05

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

vs

TSHEPO MOGOROSI & ISAAC RAPULA

MASILO

REVIEW JUDGMENT

MOKGOATLHENG AJ:

[1] This is a review in terms of section 304 of the Criminal Procedure Act No 51 of 1977.

[2] The Accused were charged with Housebreaking with intent to steal and theft in that upon or about the 13th day of November 2004 and at or near Phokeng in the district of Bafokeng; the accused did wrongfully, unlawfully and with the intent to steal break and enter the house there situated of Kaiwa Moremedi and did intentionally and unlawfully steal goods and money valued at R2500.00. the property of, or in the lawful possession of the said Kaiwa Moremedi, with the intention of permanently depriving her of her ownership thereof.

[3] Both accused pleaded not guilty. The accused were ultimately convicted, and were each sentenced to eighteen months imprisonment.

[4] The personal circumstances of the accused are; Accused No 1 Tshepo Mogorosi is 25 years old, he is a first offender, and is unemployed. The complainant is his relative and he was requested by the complainant’s mother to look after the complainant’s premises whilst complainant was visiting Johannesburg. Accused No 1 was the initiator of the offence.

[5] Accused No 2 is 20 years old. He is employed and earns R900.00 per month, he is a first offender. The stolen property was not recovered except for a single towel. The complainant’s bedroom door was forceably opened.

[6] It is trite that the imposition of sentence is a matter within the discretion of the trial court. The reviewing judge will not ordinarily tamper with the sentence imposed by the trial magistrate unless the trial magistrate has not exercised his discretion in a judicial manner, or unless the sentence having regard to all circumstances of the case is strikingly disproportionate to the offence committed.

[7] In considering sentence the Learned Magistrate misdirected himself by not differentiating in the imposition of sentence between the two accused. Accused No 1 is older than Accused No 2. Accused No 1 was entrusted with by complainant’s mother with the task of looking after the premises. Accused No 1 was thus in position of trust, and he breached that trust by inciting and conspiring with Accused No 2 to break into complainant’s property, steal and thereafter sell the complainant’s property. Accused No 1 is thus more moral blameworthy than Accused No 2 who is younger and was influenced by Accused No 1 to commit the offence.

[8] The Learned Magistrate did not properly apply his mind to Accused No 1’s moral blameworthiness and consequently did not exercise his discretion judicially.

[9] In the premises the sentence of eighteen months imprisonment imposed on both accused is set aside, and substituted with the following:

“Accused No 1 is sentenced to eighteen months imprisonment six months thereof is suspended for a period of five years on condition Accused No 1 is not convicted of housebreaking with intent to steal and theft committed during the period of suspension; Accused No 2 is sentenced to eighteen months imprisonment one year of which is suspended for a period of five years on condition Accused No 2 is not convicted of housebreaking with intent to steal and theft committed during the period of suspension.”

_______

R D MOKGOATLHENG

ACTING

JUDGE OF THE HIGH COURT

I agree.

________

A

A LANDMAN

JUDGE

OF THE HIGH COURT

DATED : 19 MAY 2005

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