S v Motlalekgosi (44/05) [2005] ZANWHC 29 (14 April 2005)

CA NO : 44\05

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

vs

MOSHE MOSES MOTLALEKGOSI

______________________________________________________________

REVIEW JUDGMENT

MOKGOATLENG AJ:

This is a review in terms of section 304 of Act 51of 1977.

The accused, was charged with Robbery in the Koster Magistrates Court, in that he is guilty of the crime of Robbery (read with the provisions of section 51 (2) of the Criminal Law Amendment Act No 105 of 1977) in that upon or about the 9th January 2005 at or near Steve’s butchery in the district of Koster, the accused did unlawfully and unintentionally assault Jab Janine Hugo and did then and with force take the following items from her, a handbag her property in her lawful possession.

On the 10th January 2005 the accused pleaded guilty to theft, and the State accepted his plea. During his plea, the accused stated that he took the complainant’s handbag. The handbag was on the lap of the complainant. The complainant was sitting in the motor vehicle and did not hold the handbag. The motor vehicle window was open. The accused after taking the handbag. ran away, but was caught by a group of farmers who kicked him. These facts were accepted by the State. On the 28th January 2005 the State did not prove any previous convictions against the accused.

The accused in mitigation stated that;

he is able to pay a fine;

he committed a grave mistake and apologises for what he has done;

he regrets what he has done;

he has been in detention for some time; and does not believe that he will forget it;

he has pleaded guilty and has made a mistake (by his conduct);

he asks for a suspended sentence;

he is unemployed and has no children.

The State submitted that a suspended sentence is the appropriate sentence. On the typed record and in the Magistrate’s hand written record, there is no record as to how the Magistrate adjudicated the question of sentence. There is no record as to the reasons, nor the motivation thereof, of why the Magistrate decided or arrived at the decision that the imprisonment of the accused, was the only appropriate sentence.

It is trite law that sentence is pre-eminently a discretional matter for consideration by the trial court. A court of review will ordinarily not interfere with the trial court’s decision in the imposition of sentence, unless the trial court has exercised its discretion injudicially, or the trial court has misdirected itself, or that the sentence is so disproportionate to the offence; that a reviewing court considers such a sentence having regard to all the circumstances of the matter not to be in accordance with justice.

The gravamen of this matter is that,

The accused is a first offender, he is 23 years old;

he was willing to pay a fine;

he was assaulted by a group of farmers when they effected this arrest;

there is no evidence as to the value of the handbag;

there is no evidence whether the handbag contained money, or any other valuable items;

the handbag was recovered almost immediately, the complainant sustained no loss at all;

the accused showed remorse and contrition when pleading guilty and when pleading in mitigation, even if such mitigation was from not under oath;

the State did not lead any evidence in aggravation of sentence, through witnesses, or from or the bar,

the State did never requested nor considered imprisonment as an appropriate sentence;

the State submitted that a fine is an appropriate sentence, the accused stated that he was able to pay a fine;

the Court mero moto kept the accused in detention pending sentence;

the court did not enquire whether the State was opposing bail pending sentence as it was obliged to;

on the 28 February 2005 when accused was sentenced he had already been in detention from the 10 January 2005 to the 28 February 2005.

Taking into considerations the circumstances of this case, it is my view that the Magistrate misdirected himself in relation to the imposition of sentence, in that he failed to properly apply his mind to the personal circumstances of the accused, and the principles governing sentence.

In any event the sentence of nine months imprisonment induces a sense of shock and is totally disproportionate to the offence and the circumstances of this case, having regard to other alternative forms of sentence which would have adequately addressed the retributive and deterrent aspect of sentence, and the legitimate expectations of society regarding the offence.

In the premises the sentence of eighteen months imprisonment, nine months of which is suspended for a period of five years on condition the accused is not found guilty of theft, or attempted theft during the period of suspension is set aside, and substituted, by the following sentence:

The accused is sentenced to six months imprisonment which is wholly suspended for a period of three years on condition the accused is not convicted of theft or attempted theft during the period of suspension.

Thus done and signed on ……. April 2005 at Mmabatho

____________________

R D MOKGOATLHENG

ACTING JUDGE OF THE HIGH COURT

Handed down 14 APRIL 2005

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