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IN  THE HIGH COURT OF SOUTH  AFRICA

(Northern  Cape Division, Kimberley)

Saakno /  Case number:CA&R 101/2016

Datum aangehoor / Date Heard: 27/03/2017

Datum  gelewer/Date delivered: 31/03/2017

In the appeal of:

BRIAN JULIES                                                                                                  1^st  Appellant

SHAYEZAKHE MNGUNI                                                                                  2^nd Appellant

FIKILE MBULAWA                                                                                             3^rd Appellant

ANDREWS JOHN                                                                                              4^th Appellant

and

THE STATE                                                                                                         Respondent

Coram: Williams, J et  Erasmus,  AJ

JUDGMENT ON APPEAL

Erasmus, Al

[1] The appellants  (accused  no  2,  3,  4 and  5  in  the  court a quo), were convicted in the Kimberley Regional Court  on 14 January 2016 on the following charges    and subsequently sentenced as follows:

1.1         The first appellant was convicted on  counts  1,  2 and 3, to wit housebreaking with the intent to steal and theft, unlawful possession of 10 rounds of ammunition and  unlawful   possession   of  both   a 9 mm semi-automatic pistol and .38 revolver. He was sentenced to 5, 3 and 8 years imprisonment respectively and it was ordered that the sentences be served concurrently.

1.2         The second appellant was convicted on counts 2  and 3, to wit unlawful possession of 2 rounds of ammunition and unlawful possession of a .22 revolver and sentenced to 6 months and 4 years imprisonment respectively and it was ordered that the sentences be served concurrently.

1.3         The third appellant  was convicted  on counts 1  and

3 of housebreaking with the intent to  steal  and  theft and unlawful possession of a .30-06 hunting rifle and a shotgun and sentenced to 5 and 8 years imprisonment respectively and it was ordered that the sentences were to be served concurrently.

1.4         The fourth appellant was convicted on count 1,  to  wit housebreaking with the intent to steal and theft and sentenced to 5 years imprisonment.

[2] The appellants now appeal against their sentences, with leave of the court a  quo.

[3] The factual basis for the conviction was that the fourth appellant, who had been employed by the complainant, had facilitated a housebreaking and subsequent  theft  at the residence of the  complainant  during  the  period 14 - 16 of June 2011. The fourth appellant had knowledge  of the complainant's safe, as he had assisted  with  its installat ion. He, together with the first and third appellants, forcefully removed the safe from the wall to which it had been bolted. The items in the safe included five firearms, jewellery to the estimated value of R150,000.00 and World War II medals, which the complainant had inherited  from  his  father. Apart  from the firearms, none of the other items had been recovered. During a search of the third appe llant's residence, the police discovered the .30-06 rifle and shotgun of the complainant. During another search the complainant's .22 revolver and 2 rounds of  ammunition were discovered in the residence of the second appellant. During a search of the residence of accused no 1 in the court a quo, where  the  first appellant  had been  residing, a medal belonging to the complainant and two handgun holsters of the stolen . 38 revolver and 9mm pistol were found in a  bag belonging  to  the first appellant. During  a further search the .38 revolver and 9mm pistol and 10 rounds ammunition were also discovered where it had  been hidden.

[4] From the sentence  proceedings  it  appears that the court a quo had duly considered the triad of the personal circumstances of the appellants, the seriousness of the offence and the interests of society. The court a quo had also individualized the sentences, by determining each  appellant's individual moral blameworthiness and, after doing so, had imposed different sentences in accordance therewith. The court a quo had also considered previous sentencing trends in determining the appropriate severity of the sentences imposed and had tempered a disproportional cumulative sentence by ordering that the sentences be served concurrently.

[5] In his heads of argument, with reference to comparative case law, Adv Van Zyl Nel correctly pointed out that substantial terms of imprisonment had been imposed for offences of unlawful possession   of   firearms   and ammunition.[1]    In  respect of the offence of housebreaking with the intent to steal and theft, several cases which are comparable to the offences in casu,  were  referred  to.[2] He, on behalf of the appellants,  correctly  conceded  that no convincing arguments could be advanced which would render the sentences imposed startlingly  disproportionate or   that   the   sentences   could   be   vitiated   by material misdirection. Mr Van Tonder, who appeared for the appellants at the hearing of the appeal, was in agreement  with the submissions of Mr Nel.

[6] Adv Kgatwe, on behalf of the respondent, also submitted that the court a quo had exercised its discretion properly and that the sentences imposed were appropriate  and that the appeal should be  dismissed.

[7] It is trite that the powers of a court of appeal to interfere with the sentence imposed by the trial court are limited. In S v Obisi[3] it was stated:

"... a Court of appeal is reminded in this passage that it should not replace the sentence imposed by  the  trial court  with its own, for  the test is not whether the appellate tribunal would have imposed another form of punishment or not, but whether the trial court exercised its discretion properly and reasonably in imposing the sentence it imposed.  The trial court  is deemed to  have exercised  its discretion properly when the discretion is not based on a substantial  misdirection  whether  as  to  law  or  fact  or  where  the sentence imposed is not manifestly inappropriate and induces a sense of shock or not substantially different from that which the appeal Court would itself have  imposed."

[8] We fully agree with the submissions of the counsel representing the appellants and respondent. Accordingly the appeal against the sentences stand to be  dismissed.

We make the following  order:

THE APPEAL OF THE FIRST, SECOND, THIRD AND FOURTH APPELLANTS IS DISMISSED.

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ERASMUS SL

ACTING JUDGE

 

I agree.

 

____________________

WILLIAMS CC

JUDGE

 

On  behalf  of the  Appellants:       Adv. Van  Zyl Nel (Adv. Van Tonder representing)  oio Legal Aid  SA

On behalf of Respondent:              Adv . K.M. Kgatwe (oio the NDPP)

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