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NORTH WEST HIGH COURT, MAFIKENG

CASE NO. CA 10/2012

In the matter between:

SIMON MOGOBENG SETOUTO ...............................................................APPELLANT

and

THE STATE ..............................................................................................RESPONDENT

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CRIMINAL APPEAL

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GUTTA J.

A. INTRODUCTION

[1] The appellant was convicted on two counts, count 1 being murder and count 2 being housebreaking with intent to rob and robbery, on 11 November 1998. He was sentenced to 55 years imprisonment in respect of count 1 and 20 years imprisonment in respect of count 2. Half of the sentence in count 2 was ordered to run concurrently with the sentence in count 1. Hence, the appellant was therefore to serve an effective term of imprisonment of 65 years.

[2] On 07 December 2012, the appellant was granted condonation for the late filing of the application for leave to appeal and for leave to appeal against the sentence imposed upon him. Leave to appeal was granted to the full bench of this Division. Hence, the present appeal to this Court is only against the sentence of 65 years imprisonment.

B. THE SENTENCE

[3] The appellant’s personal circumstances were placed on record at the time of sentencing in the Court a quo, namely:

“15.1. the appellant was 35 years of age at the time of sentence and was 28 years old at the time of the arrest;

15.2 he left school in Standard 3;

15.3 he has two children aged 5 and 8 years, respectively;

15.4 he pleaded guilty on count 2, a sign of remorse;

15.5. he assisted the State to successfully secure a conviction of the appellant’s co-accused, Joseph Ngakatau;

15.6. the appellant cooperated with the police and he pleaded guilty on the competent verdict of the second charge and showed a green light as to what he saw happening inside the deceased’s house where there were no eyewitnesses.”

[4] The appellant submitted that the Court a quo erred in law and/or fact in respect of one or all of the following aspects:

4.1. by overemphasizing the seriousness of the offence over the appellant’s circumstances and thereby having a complete disregard to the rehabilitation element;

4.2. by placing more emphasis to the fact that the appellant and the co-accused planned the commission of the offence inside the prison cell;

4.3. by relying on the fact that the appellant went along with his co-accused when they broke into the house, stole the items and raped, notwithstanding the fact that the appellant did not commit rape;

4.4. that the trial Court overlooked the fact that the appellant, on his own version, stood outside and only went inside the house after the deceased had been attacked, where he stole R40.00. That the appellant was only a watch-guard outside the house and that he did not inflict the fatal blows on the deceased. Hence, the appellant played a minimal role in the commission of the offences.

[5] It was also submitted on behalf of the appellant that the trial Court erred by failing to consider the cumulative effect of the sentences imposed, in particular by ordering part of the sentence on count 2 to run consecutively, instead of concurrently, despite the fact that these were offences that were committed more or less at the same time. See S v Martin 2000 (1) SACR 552 (T).

[6] It was further submitted on behalf of the appellant that the trial Court misdirected itself by imposing a 20 years term of imprisonment, which is a heavy sentence even though the appellant pleaded guilty to the competent verdict on count 2. The appellant referred the Court to the cases of S v Bull & Another; S v Chavulla & Others 2001 (2) SACR 681 (SCA), wherein two appellants in the Bull case were convicted of two murder charges, one of robbery and one of attempted robbery, as well as unlawful possession of firearm and ammunition. The appellants were declared dangerous criminals and were to be brought to the trial Court after the expiration of 35 years. On appeal, the Supreme Court of Appeal set aside the sentence and substituted it with 25 years imprisonment. See also S v Monyane & Others 2008 (1) SACR 543 (SCA), where the three accused were convicted of three counts of murder and were sentenced to 40 years imprisonment and one accused was sentenced to 38 years imprisonment. On appeal, the Supreme Court of Appeal set their sentences aside and substituted them with 25 years imprisonment on the two accused and 20 years imprisonment on the one accused. Also see S v Mokoena 2009 (2) SACR 309 (SCA).

[7] The appellant submitted that a sentence of 15 years imprisonment on count 1 and 10 years imprisonment on count 2 is appropriate and that 5 years in count 2 run concurrently with the sentence imposed in count 1, and that the sentence be antedated to 11 November 1998.

[8] The respondent in casu concedes that the cumulative sentence of 55 years is too severe and is disproportionate to the offences and that the Court a quo misdirected itself and committed an irregularity, which entitles the appeal court to intervene.

[9] The respondent relied on an unreported decision in this Division, namely, the case of Joseph Ngakatau v The State, Case No. CAF 02/2010, heard on 05 November 2010, where judgment was handed down on 11 November 2010. In the Full Bench decision, the Court held:

“That exceptionally long terms of imprisonment that even exceed life expectancy should not be imposed upon an accused person even though there may be a need to remove him permanently from society.”

[10] The appellant in the matter of Joseph Ngakatau v The State supra, was the appellant’s co-accused in the Court a quo. The appeal against sentence in the Joseph Ngakatau v The State’s matter was successful and the sentences were set aside and substituted with the following, Count 1, the sentence was set aside and reduced to 25 years imprisonment, count 2 housebreaking with intent to rob and robbery, the sentence was set aside and substituted with 10 years imprisonment. The Court ordered that the sentence on count 2 should run concurrently with the sentence in count 1, and the sentence was antedated.

[11] The respondent submitted that the appellant and his co-accused acted in common purpose in the commission of the offences and in that regard the act of one of the co-perpetrators is imputed to all participants. See S v Sefatsa 1988 (1) SA 868 (A).

[12] The respondent further submitted that sentence of 25 years imprisonment on count 1 and 10 years imprisonment on count 2 is appropriate and that the sentence in count 2 run concurrently with the sentence in count 1, and that the sentences be antedated to 11 November 1998.

[13] It is trite law that the sentence is within the discretion of the trial Court and a Court of appeal will not likely interfere with the exercise of its discretion by the trial Court. A Court of appeal will only interfere if the trial Court failed to exercise its discretion judiciously, properly or reasonably and thereby committed an irregularity by imposing a sentence that is either shockingly severe or disproportionate to the offence committed. See S v Kgosimore 1999 (2) SACR 238 (SCA); S v Matlala 2003 (1) SACR 80 (SCA); S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W).

[14] This case involves the murder and robbery of an elderly lady in her home for a meager amount of R40.00. The aggravating circumstances were succinctly dealt with by the Full Bench in the case of Ngakatau supra. I agree with the finding of the Court a quo that the appellant and his co-accused acted in common purpose in the commission of the offences. The act of one of the co-perpetrators is imputed to all participants and the appellant consciously shared the common purpose with his co-accused. See S v Sefatsa supra; S v Mgedezi & Others 1989 (1) SA 687 (A).

[15] I am further of the view that although the appellant deserves long term imprisonment, a sentence of 55 years imprisonment on count 1 and 20 years on count 2 is, however, shockingly severe and warrants interference.

C. ORDER

[16] Consequently, the following order is made:

a) The appeal against sentence is upheld.

b) The sentence imposed by the trial Court is set aside and it substituted by the following sentence:

“Count 1, murder, the accused is sentenced to 25 years imprisonment.

Count 2, housebreaking with intent to rob and robbery, the accused is sentenced to 10 years imprisonment.

It is ordered that the sentence on count 2 should run concurrently with the sentence on count 1. The sentence is antedated to 11 November 1998.”

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N. GUTTA

JUDGE OF THE HIGH COURT

I agree

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A.A. LANDMAN

JUDGE OF THE HIGH COURT

I agree

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A.M. KGOELE

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 15 FEBRUARY 2013

DATE OF JUDGMENT : 07 MARCH 2013

COUNSEL FOR APPELLANT : ADV NKHAHLE

COUNSEL FOR RESPONDENTS : ADV N.G. MUNYAI

ATTORNEYS FOR APPELLANT : MAFIKENG JUSTICE CENTRE

(Instructed by

ATTORNEYS FOR RESPONDENTS : THE DIRECTOR OF PUBLIC PROSECUTIONS

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