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[2021] ZAWCHC 140
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S v Esau (199/21) [2021] ZAWCHC 140 (30 July 2021)
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
High
Court Case No. 199/21
Magistrate’s
Serial No: 04/2021
Case
No. 2284/2017
In
the matter
between:
THE
STATE
And
KYLE
ESAU
Accused
JUDGMENT
Delivered on 30 July 2021
LEKHULENI
AJ
INTRODUCTION
[1]
On 09 July 2019 the accused was convicted of robbery in the Bishop
Lavis magistrate's court and was sentenced to 36 months'
correctional
supervision in terms of section 276(1)(
h
)
of the Criminal Procedure Act 51 of 1977 (“
the
CPA”
)
plus a further 18 months' imprisonment which was suspended for
five years on condition,
inter
alia
,
that he was not found guilty of robbery or attempted robbery
committed during the period of suspension. The accused, having
breached
the conditions of his correctional supervision order, was
brought before the Bishop Lavis magistrate's court on 23 April 2021
in
terms of section 276(4)(
a
)
of the CPA for the reconsideration of sentence and was subsequently
sentenced to eighteen months' direct imprisonment. On automatic
review, a query was raised
by
the reviewing judge
as
to whether the new sentence of eighteen months' imprisonment included
the sentence of imprisonment of 18 months which was wholly
suspended.
The trial magistrate was also asked whether the new sentence was not
too harsh in the light of the suspended sentence
which remained in
operation. In his reply, the trial magistrate noted that only the
correctional supervision component of the sentence
was reconsidered
and in lieu of this component, an alternative sentence of eighteen
months’ direct imprisonment was imposed.
[2]
The magistrate also alluded to the fact that after he considered the
fact that the
accused completely disregarded
the
conditions of the
correctional
supervision, he came to the conclusion that direct imprisonment was
the only option available. The magistrates also
stated that in 2019
when the original sentence was imposed and before he considered
correctional supervision as an option, he intended
to impose a
sentence of 36 months’ imprisonment and to suspend half of it.
If I correctly understood the magistrate’s
response, he implied
that when he reconsidered the sentence on 23 April 2021, he reverted
to his original view of imposing 36 months’
imprisonment with a
suspension of half of the period.
[3]
This matter is subject to automatic review in terms of the provisions
of section 302
of the CPA. T
his
court is essentially enjoined to consider whether the proceedings
before the trial magistrate appear to be in accordance with
justice.
FACTUAL
BACKGROUND
[4]
The allegations against the accused were that on 26 December 2017, he
unlawfully and
intentionally assaulted one Rowena Muthien and did
then with force steal from her one handbag the property in the lawful
possession
of the complainant. On 09 July 2019, the charge was put to
the accused in terms of section 105 of the CPA and the accused
pleaded
guilty to the charge. A statement in terms of section 112(2)
of the CPA was prepared in terms of which the accused admitted that
on the day in question he saw the complainant walking in the street
and he approached her and grabbed her handbag off her shoulder.
The
complainant resisted and he pulled the handbag harder until the
complainant let go of her grip. The accused ran away with the
complainant’s handbag and was thereafter stopped by a taxi
driver who stopped his car next to the accused. The accused handed
over the complainant’s bag to the taxi driver and attempted to
run away and was immediately apprehended. The taxi driver
took the
accused to Bishop Lavis Police Station where he was charged with
robbery and later detained. The complainant arrived at
the police
station and laid a case against the accused. She was given back
her handbag.
[5]
When the matter appeared before the magistrate, the trial court was
satisfied with
the admissions of the accused and thereupon found the
accused guilty as charged.
There were no
previous convictions proven against the accused and the matter was
postponed to 23 September 2019 for the evidence
of the complainant in
aggravation of sentence. On 23 September 2019, the complainant
appeared and informed the court that she has
forgiven the accused.
She implored the court to give
the accused another
chance as she has learnt that he was a breadwinner. The matter was
subsequently postponed for a pre-sentence
report.
[6]
On 30 October 2019 the prosecutor informed the court that the
Correctional Officer’s
report was available and same was handed
to the court as an exhibit. In passing sentence, the court took into
account the fact
that the accused was 32 years old. He has two
children aged ten and six years old and has passed standard eight at
school. The
court also took into account the fact that the accused
was divorced and that he was working as a welder.
[7]
After listening to arguments from the accused and the prosecution,
the court thereupon
sentenced the accused to 36 months’
correctional supervision in terms of section 276(1)(
h
) of the
CPA. In addition, the court imposed a sentence of 18 months’
imprisonment which was wholly suspended for a period
of five years on
condition the accused was not found guilty of robbery or attempted
robbery committed during the period of suspension.
[8]
On
31
March 2021, the Head of Bellville Community Corrections, Ms Van De
Rheede brought an application in terms of section 276A(4)(
a
)
of the CPA. The application was accompanied by her sworn affidavit in
which she requested the court to consider an alternative
sentence as
the accused was alleged to have failed to comply with the conditions
of his sentence in terms of section 276(1)(
h
)
of the CPA. Among others, it was alleged that the accused
changed his address without consulting the correctional officer.
When
he was monitored by officers of the correctional services, the
accused was not found at the given address. In response to
this
application, the accused indicated that indeed he left the given
address and went to stay in Rondebosch as his mother passed
away. He
admitted that he did not inform the correctional officers after
leaving his address. He pleaded for mercy and after considering
the
matter, the court imposed an alternative sentence of eighteen months
direct imprisonment.
APPLICABLE
LEGAL PRINCIPLES AND ANALYSIS
[9]
As explained above, the matter was placed before me for the
consideration of the review
in terms of section 302 of the CPA. It is
the duty of this Court in reviewing this matter to ensure that
the proceedings in
the court
a
quo
,
as well as the conviction and sentence, were in accordance with
justice. After perusing the record, I was satisfied that the
conviction of the accused was in accordance with justice. However,
after
consideration
of
the circumstances of this case, I was concerned with the alternative
sentence of eighteen months’ imprisonment that was imposed
by
the trial court. This sentence was additional to the remaining
suspended sentence of eighteen months’ imprisonment which
was
originally imposed by the trial court when the matter was finalized.
I held the view that the cumulative effect of the whole
sentence was
disproportionate and disturbingly inappropriate.
[10]
It is trite that section 276A(4)(
a
) of the CPA is aimed at
failed sentences of correctional supervision. It is also a
fundamental principle of our law that when a
court reconsiders a
punishment in terms of section 276A(4)(
a
), it is limited to
the reconsideration of the correctional supervision component and may
not reconsider any other part of the sentence
- See
S v
Jacobs
1994 SACR 326
(C) at 333C-D; See also
S v Pule
2003
(2) SACR 540
(T). In other words, the court is restricted to the
correctional supervision component of the sentence and no other
component of
the sentence may be reconsidered.
[11]
On
reconsideration of
proper
sentence, the trial court is enjoined to take into account all
relevant circumstances which would include consideration of
the
effect of the alternative sentence, and any other remaining
punishment which it may not interfere with and which accordingly
remains extant. In other words, when reconsidering an alternative
sentence, the court must be alive to the remaining sentence which
was
imposed in addition to correctional supervision that is the subject
of reconsideration.
[12]
Friedman J, as he then was, noted with admirable brevity in
S
v Jacobs
(
supra
)
that the only limitation imposed on a court imposing 'any other
proper punishment' is that it may not impose a punishment in place
of correctional supervision which, together with any punishment
which remains in place, would exceed its jurisdiction. Thus,
a
magistrate's jurisdiction is limited, in terms of section 92(1)(
a
)
of the
Magistrates' Courts Act 32 of 1944
, to three years'
imprisonment. When a magistrate imposes any other sentence, his power
would be limited to imposing a sentence
which, together with any
existing sentence, does not exceed three years.
[13]
It must be stressed that when reconsidering a sentence in terms of
section 276A(4)(
a
) of the CPA, a magistrate must ensure that
the new sentence as well as the remaining sentence that was imposed
together with correctional
supervision must be appropriate and must
be proportionate to the offence committed and must not exceed the
penal jurisdiction of
the magistrates’ court as envisaged in
section 92(1)(a)
of the Magistrates Court. In
Jacobs
(
supra
),
the court observed that if a magistrate wishes, when sentencing an
accused person
ab initio
, to impose correctional
supervision together with imprisonment which is conditionally
suspended, which is permissible in terms
of
s 276(3)
(a)
, he
may impose both the maximum of three years imprisonment as well as
the maximum of three years' correctional supervision, since
correctional supervision is not imprisonment and there is no
limitation on a magistrate's jurisdiction to impose correctional
supervision up to the limit of three years laid down in
section
276A(1)
(b)
. However, should he impose the maximum of
three years’ imprisonment together with correctional
supervision and he should
be called upon, at a later stage, to
reconsider the correctional supervision, he would be unable to impose
any other sentence in
its place. The court noted that this potential
anomaly may necessitate legislative intervention.
[14]
In this case, the trial court initially imposed a sentence of three
years’ correctional
supervision. In addition to this sentence,
the court imposed a sentence of eighteen months’ imprisonment
which was wholly
suspended on normal conditions. When the court was
called upon to reconsider the sentence in terms of
section
276A(4)(
a
),
the court substituted the thirty-six months’ correctional
supervision with a sentence of direct imprisonment for a period
of
eighteen months. The new sentence as well as the remaining
sentence that was imposed during the trial cumulatively amounts
to
thirty-six months and falls within the penal jurisdiction of the
district court. However, the cumulative sentence of thirty-six
months’ imprisonment under these circumstances is in my view
harsh and evokes a sense of shock.
I
am further of the view that the sentence is disproportionate to the
offence committed by the accused.
[15]
In this matter the accused was arrested immediately after committing
the offence. The accused
was found in possession of the handbag that
he robbed the complaint and the handbag was obviously returned to
her. The complainant
did not suffer any prejudice other than the
temporal loss of her bag and the traumatic ordeal that she went
through. The complainant
informed the court that she wanted the court
to give the accused another chance especially after she got to know
that the accused
was a breadwinner and looking after his children and
mother. The accused in this matter was a first offender and he was
remorseful
for committing the offence. In my view, all these
circumstances taken together should have weighed in favour of the
accused.
[16]
I appreciate the fact that robbery is a serious offence as stated by
the magistrate in his reasons
for judgment. However
,
this is not the only consideration of the triad. What is expected is
for the court to
act
judiciously by taking into account all of the relevant factors and
competing interests involved, so as to arrive at a sentence
which
strikes an equilibrium of the triad.
In
S
v Kruger
2012
(1) SACR 369
(SCA)
at para 11,
the
court stated that ‘punishing a convicted person should not be
likened to taking revenge. To this end, I agree with the
views
expressed by the court in
S
v Pillay
2018
(2) SACR 192
(KZD), where the court stated that ‘
every
sentence that must be imposed must be tempered with a degree of mercy
no matter the crime’.
[17]
More importantly, w
hilst
it is accepted that it is in the interests of justice that crime
should be punished, however, punishment that is excessive
as is the
case in this matter, serves neither the interests of justice nor
those of society.
The Supreme
Court of Appeal in
S
v Scott-Crossley
2008
(1) SACR 223
(SCA) at para 35 stated as follows:
“
Plainly
any sentence imposed must have deterrent and retributive force. But
of course
one must not
sacrifice an accused person on the altar of deterrence
.
Whilst deterrence and retribution are legitimate elements of
punishments, they are not the only ones, or for that matter, even
the
overriding ones.” (the emphasis is mine)
[18]
I consider it necessary to reconsider the alternative sentence
imposed. In my view, it is prudent
not to remit the matter to the
magistrate as all the relevant facts are on record. The remittance of
the matter to the court
a quo
will unnecessarily delay the
finalisation of this matter. I have considered the personal
circumstance of the accused, the fact
that he is a first offender as
well as arguments from both sides as recorded and I am of the view
that in addition to the sentence
of eighteen months which was wholly
suspended, a sentence of eight months’ imprisonment is
appropriate in the circumstances.
ORDER
[19]
In the result, I propose the following order:
19.1
The sentence of eighteen (18) months imprisonment imposed by the
court
a quo
on the
accused is set
aside and replaced with the following sentence:
19.1.1 The accused
is hereby sentenced to eight months’ imprisonment in terms of
section 276(1)(
b
) of the
Criminal Procedure Act 51 of 1977
.
LEKHULENI AJ
ACTING JUDGE OF
THE HIGH COURT
I agree and it is
so ordered
MANTAME J
JUDGE OF THE HIGH
COURT