Tovey Hlogi Jerome Mogoba v The State

On 14 January 2005, the appellant (then aged 24 years and 8 months) and his accomplices planned and executed an armed robbery at Ga-Raoleka Supermarket in Lebowakgomo, Thabamoopo district. The group met at a co-accused's home to plan the robbery. The appellant provided the group with two firearms kept in a red bag. The appellant entered the shop under the pretext of buying Grandpa headache medication. During the robbery, Mr Aslam Mohammad and Mr Foster Mashimbye were shot and killed at the scene. The appellant took an undisclosed amount of cash and placed it in the red bag before handing it over to a group member. The appellant was the eldest in the group and played a leading role in both planning and executing the robbery.

• Whether the trial court misdirected itself in finding that no substantial and compelling circumstances existed to justify deviation from the prescribed sentence of life imprisonment for murder
• Whether the full court erred in confirming the trial court's finding on sentence
• Whether the appellant's age, personal circumstances, role in the offence, and period in custody constituted substantial and compelling circumstances justifying deviation from the prescribed sentence under section 51(1) of the Criminal Law Amendment Act read with Part 1 of Schedule 2

The appeal was dismissed. The sentences imposed by the trial court were confirmed: life imprisonment on each of the two counts of murder, 15 years' imprisonment on the count of robbery with aggravating circumstances, three years' imprisonment on the count of unlawful possession of a firearm, and one year imprisonment on the count of unlawful possession of ammunition, with sentences in respect of the other counts running concurrently with the life sentences.

The binding legal principles established are: (1) A court of appeal should guard against eroding the trial court's discretion in sentencing and should only interfere when the discretion was not exercised judicially and properly; (2) Under section 51(1) of the Criminal Law Amendment Act read with Part 1 of Schedule 2, a court is obliged to impose a sentence of life imprisonment for murder committed during a robbery unless there exist substantial and compelling circumstances that justify deviation from the prescribed sentence; (3) Factors such as the accused's age (24 years), loss of a parent, role in the offence, and period in custody prior to sentencing do not, individually or cumulatively, constitute substantial and compelling circumstances where the accused was mature, was the eldest in the group, provided the firearms, and played an active and leading role in planning and executing a violent robbery resulting in deaths.

The Court noted that the appellant was initially charged and convicted along with two co-accused, and that the sentence of one of the co-accused was reduced by the Supreme Court of Appeal on 1 December 2015. However, this fact did not impact the Court's analysis of the appellant's sentence, implicitly suggesting that each accused's sentence must be considered on their individual circumstances and role in the offence.

This case reinforces the principles established in S v Malgas regarding the application of minimum sentences under section 51 of the Criminal Law Amendment Act. It demonstrates the high threshold required for establishing substantial and compelling circumstances to justify deviation from prescribed life sentences for murder committed during the commission of a robbery. The judgment emphasizes the respect appellate courts must afford to trial courts' sentencing discretion and will only interfere where there has been a misdirection or the discretion was not exercised judicially. The case illustrates that factors such as relative youth (24 years old), personal hardship (loss of a parent), and period in custody prior to sentencing, even when considered cumulatively, may not constitute substantial and compelling circumstances where the accused played a leading and active role in a violent crime resulting in multiple deaths.