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Jaji v S (A533/2012) [2012] ZAWCHC 360 (23 November 2012)

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JUDGMENT

BINNS-WARD, J

In this matter the appellant appeals with the leave of the trial court against the sentences imposed on him upon his conviction of one count of housebreaking with intent to steal and theft and one count of assault with intent to do grievous bodily harm.

Both offences were committed on the night of the 1^st December 2009 in the West Beach area of Cape Town where the appellant together with one other broke into a unit at Tuscany Villas in Rochester Road, West Beach on the night in question and made off with the handbag of the person who was house- sitting the unit at the time. The contents of the handbag included the complainant’s identity wallet, her credit cards, her identity book, her driver’s licence, her car keys and her cellular telephone.

The complainant was in the property at the time and sounded the alarm. This no doubt was the reason that the appellant and his accomplice made off with nothing but the handbag.

As a result of the alarm being sounded a private security man, Mr Adriaan Kohn, investigated, and, because of his knowledge of the area, he had a shrewd idea of the direction in which the perpetrators of the housebreaking would seek to make their escape.

His local knowledge paid dividends. As a result, he was able to intercept the appellant and his accomplice as they made their getaway and subdue them with the intention of holding them until the police could arrive to take them away. The appellant and his accomplice were in possession of the stolen: property at the time of their interception.

During the period that Mr Kohn had the appellant and his accomplice in a subdued state, laying on the ground awaiting the arrival of the police, an attempt was made by the appellant and his accomplice to escape. During the course of that attempt they - and it would appear particularly the appellant’s accomplice - tried to disarm Mr Kohn of the firearm which he was levying on them at the time. In the course of the struggle between the appellant and his accomplice and Mr Kohn, Mr Kohn was stabbed with a screwdriver and sustained minor injuries. During the course of the tussle Mr Kohn, probably reasonably fearing what might occur if he was relieved of his firearm in the circumstances, fired at least one shot, which resulted in the death of the appellant’s accomplice. It would appear that thereupon the appellant wisely did not persist and philosophically awaited his arrest.

He pleaded not guilty, but was properly convicted as mentioned earlier. He was a first offender, a young man of 28 years of age at the time. He had a grade 12 education. He was engaged in part time employment doing odd jobs. He was in an unmarried relationship with a woman who is the mother of his two children and his evidence, or rather the ex parte information put up to the trial court, was that he was the sole breadwinner.

The magistrate took into account all the matters that should be taken into account and weighed when sentencing is done and imposed a sentence of eight years’ imprisonment, of which two years were conditionally suspended, in respect of the housebreaking count and six years’ imprisonment, of which three years were suspended, in respect of the conviction for assault with intent to do grievous bodily harm. In the result the appellant received a sentence of totalling 14 years imprisonment, of which five years were suspended.

Now it is trite that sentencing is a matter within the peculiar discretion of the trial court and an appeal court will not interfere with that discretion unless there has been a material misdirection by the trial court.

One of the indicators of a material misdirection is if the sentence imposed differs starkly from what the appeal court would consider appropriate in the circumstances.

In this matter I do not believe that the magistrate's approach to sentencing in principle can be faulted, but what is striking is that the result of the purported application of that principle by the magistrate, resulted in a sentence in respect of a first offender that to my mind was way outside the norm of sentences imposed in these circumstances; and Mr Mashego, for the state, when tasked on this during his argument, was unable to refer us to any authorities or information that would indicate that my perception of these sentences in the circumstances as way outside the norm was misdirected in any.

Therefore, because I consider that the sentences imposed, seen cumulatively, starkly differ from what I would have considered appropriate in the circumstances, I consider that this court is entitled to interfere on appeal.

Both offences were serious, as conceded by counsel for the appellant, and in the absence of any indication - and in this regard I should observe that the appellant was legally represented at his trial - which would suggest that a sentence entailing correctional supervision would be appropriate, it seems to me that sentences of direct imprisonment are appropriate in respect of both counts, but with a length materially shorter than that imposed by the trial court.

In my view it would be appropriate in respect of the conviction of housebreaking with intent to steal and theft to have imposed a sentence of three years’ i m p r i s onment, one of which should : be suspended for five years on condition that the appellant is not convicted of any crime committed during the period of suspension of which dishonesty is an element; and in respect of the conviction for assault with intent to do grievous bodily harm, to a sentence of four years’ imprisonment, two of which should be suspended for five years on condition that the accused is not convicted of any crime of which assault against another person is an element committed during the period of suspension.

I would backdate those sentences in terms of Section 282 of the Criminal Procedure Act to the 31^st August 201Q, which was the; date upon which the sentences appealed against were -imposed.

I would therefore UPHOLD the appeal against sentence and SET ASIDE the sentence imposed and substitute those that I outline earlier

BINNS-WARD, J

I agree. It is so ordered

DLODLO, J