IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

and
1.	VUYANI MASELANI
2.	PATRICK MGESI

SENTENCE

Mr Maselani and Mr Mgesi have been convicted of the offence

of robbery with aggravating circumstances. If we turn to section 51(2) of the Criminal Law & Procedure Act, I am required, if I am not satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence, to impose upon them a sentence of imprisonment for a period of not less than 15 years.

Am entitled to impose a lesser sentence only if, on a consideration of the circumstances of the case, I am satisfied that the prescribed sentence is unjust in that it would be disproportionate to the crime, the criminal and the needs of society."

the community, its welfare and concern". (Per 

This does not mean, of course, that the fact that Mr Maselani has children to whose support he contributes, must be left out of account. It means only that I am fortunately exempted from the difficult inquiry whether it is necessary to take steps to ensure that Mr Maselani's children will be cared for properly, should I decide that a custodial sentence is appropriate. I am satisfied on the evidence that they will be cared for properly in this event.

It was also submitted by counsel for Mr Maselani that it should be taken into account that he pleaded guilty to robbery and that he had testified honestly. This is plainly correct and these factors must and do inform my decision concerning an appropriate sentence. It is necessary finally, to mention at this stage that during the period 1989 to 1996, Mr Maselani was convicted of theft, for which a sentence of caning was imposed; robbery for which a sentence of 12 months imprisonment was imposed; theft for which a period of three and a half years imprisonment was imposed, of which one year was suspended on conditions, and possession of presumably stolen property for which a period three years imprisonment was imposed. Given that these offences were committed considerably more than ten years ago, I do not regard them to be aggravating factors.

Mr Mgesi testified in mitigation of sentence. I accept from his evidence that he too is remorseful about his role in the commission of the offence. Mr Mgesi has three children, whom he helps to support from a grant he receives on account of illness and incapacity. He is HIV positive, suffers from blackouts as a result of a head injury and suffers from asthma. He receives medication to treat these conditions from the day hospital at Delft. Mr Mgesi has also spent 14 of the months which have elapsed since the offence in custody, but this arose for reasons unrelated to this matter as I understood the evidence and I do not think that it is a factor to which considerable weight should be attached.

Counsel for both Mr Maselani and Mr Mgesi submitted that I ought to take into account that neither had intended that harm should come to the deceased and that this was, to use the words used in argument, a robbery gone terribly wrong. I do not think that it is correct to say that neither had intended that the deceased be harmed. I do not think that there is any question from the evidence that Mr Maselani and Mr Mgesi both participated in subduing the deceased by force. She had been deliberately and intentionally set upon and forcibly overwhelmed by her three assailants. I think it is self-evident that harm was intended and done when she was attacked in this manner.

I accept in favour of Mr Maselani and Mr Mgesi that the decision to enter the premises and commit robbery was not long in the planning, although it was undoubtedly, in my view, premeditated. But although it was not long in the planning, it remains a fact that when the opportunity to rob a defenceless victim presented itself, it was seized upon without hesitation and    carried    out    ruthlessly    with    no    regard    for   the consequences. In doing so, the life of a young woman came to an end. This notwithstanding, it is clear from the evidence as a whole that the crime was more one of opportunity and that the terrible consequence which ensued, namely the death of the deceased, was not something which either Mr Maselani or Mr Mgesi had contemplated or foreseen.

As stated above, it is true that there is no evidence to suggest that the death of the deceased was an intended or foreseen result of the attack upon her. In essence this is the reason why Mr Maselani and Mr Mgesi were acquitted on the charge of murder. This factor, as I see it, has limited bearing on the charge of which they have been convicted. In the event, the harm which eventuated, the death of the deceased by strangulation, was considerable. It may not have been intended, but I do not think that this is a factor which is so weighty that it impels the conclusion that the prescribed minimum sentence is disproportionate to the offence.

It must be remembered that even the threat of grievous bodily harm during a robbery, may result in a conviction. It follows that actual harm is not a necessary prerequisite for conviction. Yet parliament intended, when it enacted the minimum sentence legislation, that even a robbery involving only   a   threat  of grievous   bodily   harm is   robbery   with aggravating circumstances and that a conviction for this offence triggers the application of the minimum sentence legislation. I cannot ignore this obvious indication of the seriousness with which parliament viewed the offence of robbery with aggravating circumstances.

The next question which arises is what is an appropriate sentence, regard being had that a penalty of not less than 15 years must be imposed. Counsel for the State has submitted that a sentence of 15 years imprisonment must be imposed. After consideration I have come to the conclusion that a sentence of 15 years is not disproportionate, bearing in mind the severity of the crime, the personal circumstances of both Mr Maselani and Mr Mgesi as outlined above, and the interests of society. In the circumstances I am bound to impose the following sentences:

KOEN, AJ