S v Brophy and Another

• Jurisdiction: South Africa
• Judge: Schwartzman J, Masipa J and Saldulker J
• Judgment Date: 25 August 2006
• Citation: 2007 (2) SACR 56 (W)
• Docket Number: A06/2006
• Hearing Date: 04 August 2006
• Counsel: C E Thompson for the first appellant. J D Pretorius for the second appellant. C E Britz for the State.
• Court: Witwatersrand Local Division

Schwartzman J:

[1] On 5 February 2004 Mailula J and two assessors convicted Earl Brophy (accused 1) and Leroy Frazer (accused 2) of the murder of Sophy Mphuthi (the deceased) and robbery with aggravating circumstances. On the murder charge both accused were sentenced to 18 years' imprisonment. On the robbery charge they were both given 12 years, half of which B was to run concurrently with the sentence on the murder count. An effective sentence of 24 years. On 8 June 2005 Mailula J granted accused 2 leave to appeal to a Full Bench of this Court against his convictions and sentences. On 2 August 2006 Mailula J granted accused 1 leave to appeal to this Court against his convictions and sentences. In this judgment I will C refer to Brophy as accused 1 and Frazer as accused 2.

[2] - [11] [*]

[12] Turning to sentence, Mailula J correctly found that in terms of the D minimum-sentence legislation, and absent substantial and compelling circumstances, a sentence of life imprisonment was to be imposed for the murder, and that a sentence of 15 years had to be imposed for the conviction on the count of robbery with aggravating circumstances. The murder qualified for a life sentence because the deceased died in the course of the accused 'committing or attempting to commit or after E having committed . . . robbery with aggravating circumstances' - see Schedule 2, Part I (c) of the Criminal Law Amendment Act 105 of 1997, read with s 51(1)(a) of the Act.

[13] In terms of s 51(3) of the Act, the trial Court was required to list the F substantial and compelling circumstances that justified the imposition of a lesser sentence. In finding that such circumstances existed, the Court listed the fact that both accused were first offenders, that accused 2 was only 20 at the time the offences were committed and that the form of intent to kill was dolus eventualis. It was also said that an injustice would result if the prescribed sentences were imposed. On the murder charge a G sentence of 18 years' imprisonment was imposed. On the robbery charge a 12-year sentence was imposed. Without articulating her reasons, Mailula J ordered six years of this sentence to run concurrently with the 18-year sentence, resulting in an effective sentence of 24 years.

[14] Although the accused were correctly convicted of both offences, the H whole of the sentence on the robbery count should have been ordered to run concurrently with the sentence...