SPLITTING OF CHARGES ATTEMPTED MURDER AND ROBBERY

S v MAHLAMUZA AND ANOTHER 2015 (2) SACR 385 (SCA)
Murder — Attempted murder — Committed in connection with robbery — Whether accused guilty of two separate crimes — Such finding permissible where violence committed against victim exceeded limits required for robbery and accused had intention to kill and not merely intention to incapacitate victim — Where none of injuries sustained were potentially fatal or even severe and separate intention to kill not proven, conviction of attempted murder in addition to conviction of robbery with aggravating circumstances not permissible.

The appellants were part of a group who arrived at the farm of the complainants on the pretext of being interested in buying furniture made by the elderly male complainant. Instead they robbed the couple. One of the robbers fired a shot at the elderly man but it missed him. The two appellants also assaulted the elderly woman and pushed her to her workroom where she was tied up. Her husband was kicked in the ribs and also tied up. The police arrived on the scene, a shoot-out ensued and one of the robbers was killed. The two appellants and one co-accused were tried in a regional court and were convicted of robbery with aggravating circumstances (count 1) and the attempted murder of the complainants (counts 2 and 3). They were found to have acted with a common purpose in committing the offences and first appellant was also convicted of attempting to murder one of the police officers. The court sentenced the first appellant to an effective period of 48 years’ imprisonment, made up of a sentence of 20 years’ imprisonment on count 1; 10 years’ imprisonment on count 2; 8 years’ imprisonment on count three and 10 years’ imprisonment on the count of attempted murder of the police officer. The second appellant was sentenced to an effective period of 33 years’ imprisonment, made up of 15 years’ imprisonment on count 1; 10 years’ imprisonment on count 2; and 8 years’ imprisonment on count 3. None of the sentences were ordered to run concurrently. The appellants appealed to the High Court against their convictions and sentences. The court dismissed their appeal but granted them leave to appeal against the convictions on counts 2 and 3 and the sentences imposed on counts 1, 2 and 3. The appellants contended on appeal that on the proven facts the conviction on separate counts of attempted murder relating to the complainants was not justified.
D Held, that where attempted murder was committed in connection with a robbery, the state was entitled, according to the circumstances, to charge the accused with robbery and with attempted murder. The court was entitled to find the accused guilty on the two separate offences, provided that the robber used excessive violence that exceeded the limits and bounds of robbery and it was proved beyond reasonable doubt that the accused also had the intention to kill and not merely to use force aimed at temporarily incapacitating the victim.
Held, further, that findings of the trial court and the High Court that the acts of violence committed against the complainants during the robbery exceeded the limits or bounds of the robbery were not sustained on the facts. Apart from hitting the elderly man with the butt of a revolver at the early stages of the robbery, the injuries sustained by the couple were inflicted without the use of dangerous instruments or weapons. None of the injuries sustained were shown to be potentially fatal or even severe. On the contrary, the evidence established that they sustained only relatively minor injuries.
Held, further, that the evidence also did not prove that the appellants had the intention to kill the complainants, establishing only that the violence used against them was perpetrated with the intent of depriving them of their belongings.
Held, further, that all the acts of violence formed part of the robbery, and that the ineluctable inference was that the killing of the elderly couple was not desired, or its possibility foreseen. It followed that the convictions on the charges of attempted murder relating to the complainants (counts 2 and 3) and the sentences on those counts had to be set aside.

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