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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA&R 30/2014

Date Heard: 11 March 2015

Date Delivered: 19March 2015

In the matter between

LUTHANDO BOTOMAN.......................................................................................................Appellant

And

THE STATE...........................................................................................................................Respondent

Appeal on sentence – appellant 20 year old first offender who pleaded guilty to housebreaking with intent to rob and robbery with aggravating circumstances – substantial and compelling circumstances found to be present – sentenced to 12 years imprisonment -  sentence not shockingly inappropriate or disproportionate – appeal dismissed.

JUDGMENT

GOOSEN, J.

[1] The appellant was charged and convicted in the Regional Court, Port Elizabeth on a charge of housebreaking with intent to rob and robbery. He pleaded guilty and was sentenced to 12 years imprisonment. The appellant now appeals against his sentence.

[2] The appellant was initially charged with two other accused. At the commencement of the trial he however indicated his intention to plead guilty to the charge and accordingly the trials were separated. In his plea explanation, the appellant explained that on the night of 22 August 2011 he was in the company of his erstwhile co-accused and that they travelled to Lorraine, a suburb in Port Elizabeth. There they visited some relatives of one of his co-accused where they consumed alcohol. When they left they set off to walk home. When they were passing a housing complex one of his co-accused noted that the gate was open and it was suggested that they should enter and see what they could find inside. The appellant realised that they were suggesting that they should break into the property and he decided to accompany them. Once they were inside the complex they noticed a house with the lights on and that there was a bakkie parked in the driveway. The appellant was told to wait outside and the other two made their way to a sliding door which they forced open and entered the house.

[3] After a short while he was called by one of his friends to come into the house, which he did. He went into the kitchen and there he took food out of the fridge and ate. Whilst he was eating his friends were carrying items out of the house and placing them on the bakkie. After a while he went back outside to the bakkie and one of his friends gave him a set of keys and told him to drive it. At that stage he established that the friends had encountered a woman inside and that they had taken the keys from her by threatening her with a firearm.

[4] The appellant then drove his friends away in the bakkie and made his way to the Walmer township where he drove to various houses to drop off the goods that had been removed from the house. After dropping off the various items which included a television set, washing machine and other appliances they then continued to drive in the vehicle until the police came across them. He was arrested but his co-perpetrators were able to make their escape.

[5] The stolen items, including the Toyta bakkie, were ultimately recovered by the police with the assistance of the appellant. The value of the goods stolen was in the order of R250,000.00.

[6] In passing sentence, the magistrate considered that the appellant was a relatively youthful offender of 20 years of age and that he had pleaded guilty to the charge and was a first offender. In considering whether or not there were substantial and compelling circumstances present which would warrant a departure from the prescribed minimum sentence, the magistrate took into account the fact that the appellant had played a lesser role in the commission of the offences and that the appellant had played no role in a threatening the complainant or overpowering her in order to take possession of the goods. He had only entered the house after that had taken place and had remained in the kitchen. This lesser role, coupled with the fact that he was a youthful offender with no previous convictions and that he had pleaded guilty to the charge and indicated his willingness to assist in the prosecution of his co-perpetrators, persuaded the trial court that there were indeed substantial and compelling circumstances present which warranted a departure from the prescribed minimum sentence.

[7] In argument before us it was accepted that the magistrate had acted correctly and had not misdirected himself in any manner. However, notwithstanding the finding as to substantial and compelling circumstances, the magistrate nevertheless considered that the offence was a particularly serious one and that it was one which was prevalent. The invasion of the home of the complainant in circumstances where it was anticipated that there was a possibility of resistance being put up with serious consequences, served as an aggravating factor in the mind of the magistrate. It was not suggested that he was incorrect in coming to this conclusion.

[8] The magistrate, having weighed the seriousness of the offence and the broader interests of the community and taking into account the substantial and compelling circumstances which he found present, imposed a sentence of 12 years imprisonment. This, it was argued, was a shockingly inappropriate sentence, which would warrant this court interfering with that sentence. A sentence of 12 years imprisonment is, in my view, a robust sentence. However, the fact that this court may itself not have imposed a sentence as robust as that which was imposed is not the test to determine whether this court should interfere with the trial court’s sentencing discretion. After all, the imposition of sentence is quintessentially a matter that falls within the discretion of the trial court. The question to be asked is whether the sentence is so disproportionate to the offence for which the appellant has been convicted as to induce in the mind of a reasonable person a sense of shock or outrage. In my view that is not so.

[9] House robberies are indeed very serious offences which are all too prevalent. The value of the goods taken is very substantial. It appears that quick police action managed to bring about the apprehension of the perpetrators and the recovery of the goods. The fact that the appellant was apprehended red-handed and that he was compelled to cooperate with the police and ultimately to plead guilty is not a factor that properly serves to mitigate his sentence. It certainly doesn’t reduce the gravity of the offence.

[10] It was not suggested that the magistrate had exercised his sentencing discretion on the wrong principle or that he had in any manner failed to take into consideration those mitigating factors that were present. On the contrary, it was accepted in the appellant’s heads of argument that “the trial court had made a balanced assessment of all of the factors present when it considered the traumatic experience of the complainant and the prevalence of the offence within the jurisdiction of the court”.

[11] In the circumstances, therefore, I am not persuaded that there is any basis to interfere with the trial court’s discretion in respect of sentence. It follows that the appeal cannot succeed.

[12] I therefore make the following order.

The appeal is dismissed.

G. GOOSEN

JUDGE OF THE HIGH COURT

MASETI, AJ.

I agree.

P. MASETI

ACTING JUDGE OF THE HIGH COURT

APPEARANCES: For the Appellant

Mr. Nogcantsi

Nogcantsi Attorneys

For the Respondent

Adv. Mgenge

Director of Public Prosecutions

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