REPUBLIC OF SOUTH AFRICA

IN THE GAUTENG HIGH COURT
LOCAL DIVISION, JOHANNESBURG

(1)	REPORTABLE: NO 
(2)	OF INTEREST TO OTHER JUDGES: YES
(3)	REVISED

27 MAY 2014	      	FHD VAN OOSTEN 

CASE NO: A590/2013

In the matter between
SPRITE MOKGABODI 		                			            APPELLANT
                   											
and 

THE STATE 								            RESPONDENT  
Sentence - housebreaking and theft - appeal against sentence of 7 years’ imprisonment - appellant serving 15 years’ imprisonment in respect of similar offence committed in the same month as the present offence - court a quo’s refusal to order concurrency of two sentences constituting a misdirection - appeal upheld to the extent that two sentences ordered to run concurrently

J U D G M E N T
___________________________________________________________________ 
VAN OOSTEN J:
[1] The appellant, after a plea of guilty, was convicted in the Regional Court Boksburg, of housebreaking and theft and sentenced to 7 years’ imprisonment. The appeal is directed against sentence and is with leave of this court on petition. 
[2] The appellant was arrested for the offence of which he was convicted, in 2006. At the time of sentencing the appellant admitted a previous conviction, dated 6 February 2007, for a similar offence in respect of which he was sentenced to 15 years’ imprisonment. The appellant in fact was still serving this sentence at the time of imposition of the present sentence. The two offences, in respect of which the appellant has been sentenced, in two separate trials, were committed two weeks apart, in November 2001. The regional magistrate in the present matter was alive to the appellant’s previous conviction and the sentence imposed in that matter, but held, concerning possible concurrency:
‘Now considering the totality of the whole evidence before me ordering this sentence which I am going to pass to run concurrently with the one he is serving that will not be an appropriate sentence under the circumstances.’ 
It is clear from the judgment on sentence that the regional magistrate considered the sentence to be imposed, separately from the sentence the appellant was then serving. In my view a material misdirection occurred. The offences were committed in the same month and in the normal course would have been the subject of two charges in the same matter. The enquiry therefore should have been: what would the cumulative sentence have been had the two offences been joined in one case. The sentences imposed now result in a total of 22 years’ imprisonment, of which the appellant had, at the time of sentencing, already served 7 years. The cumulative sentence in my view is extremely severe and therefore shockingly inappropriate. In S v Mabunda 2013 (2) SACR 161 (SCA) the Supreme Court of Appeal confirmed the statutory minimum sentence of 15 years’ imprisonment imposed on each of two counts of robbery with aggravating circumstances, committed during the same night, but ordered concurrency which resulted in an effective sentence of 18 years’ imprisonment. In my view, a similar approach ought to be adopted in the present matter. Individualisation of sentence, of course, remains a requirement. An important consideration is that the appellant has already served a substantial portion of his first sentence. Rehabilitation as may have occurred in that period accordingly, is an important consideration. Regrettably, nothing was put before the trial court concerning the appellant’s conduct and progress in the prison environment. The present sentence was moreover imposed in respect of an offence that had been committed more than 12 years ago. For all these reasons I am satisfied that intervention by this court on appeal is justified and that an effective sentence of 15 years’ imprisonment is appropriate. 
[3] In the result the following order is made:
The appeal against sentence is upheld to the extent only that the following order is added to the sentence imposed by the regional magistrate: 
‘The sentence of 7 years’ imprisonment is ordered to be served concurrently with the sentence the accused is serving at present.’

_________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT

I agree.

__________________________
Z BUTHELEZI    
ACTING JUDGE OF THE HIGH COURT

COUNSEL FOR THE APPELLANT		ADV ES DINGISWAYO 

COUNSEL FOR THE RESPONDENT		ADV P SCHUTTE 

DATE OF HEARING				27 MAY 2014
DATE OF JUDGMENT				27 MAY 2014