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[2016] ZASCA 184
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Mvubu v S (518/2016) [2016] ZASCA 184 (29 November 2016)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 518/2016
In
the matter between:
BONGOKWAKHE
BONGINKOSI MVUBU
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Bongokwakhe
Bonginkosi Mvubu v the State
(518/2016)
2016 ZASCA 184
(29 November 2016)
Coram:
Leach,
Tshiqi and Zondi JJA and Schoeman and Schippers AJJA
Heard:
11
November 2016
Delivered:
29
November 2016
Summary:
Section
276B(2)
of the
Criminal Procedure Act 51 of 1977
does not have
retrospective application: 30 years’ imprisonment for attempted
murder and cumulative effect of sentence of
45 years’
imprisonment excessive: appeal court entitled to interfere with
sentence where it is shocking, startling and disturbingly
inappropriate: appellate court able to arrive at a definite view as
to what sentence it would have imposed.
ORDER
On
appeal from:
Natal
Provincial Division of the High Court (Theron, Kruger and Van Zyl JJ
sitting as court of appeal):
1
The appeal against the sentences in respect of counts 1, 2, 3, 4, 5,
9 and 10 is successful,
and these sentences are set aside and
substituted with the following.
(a)
In respect of counts 1, 2 and 4 the appellant is sentenced to undergo
ten years’ imprisonment
on each count;
(b)
In respect of count 3 the appellant is sentenced to undergo 15 years’
imprisonment;
(c)
In respect of count 5 the appellant is sentenced to undergo 5 years’
imprisonment;
(d)
In respect of count 9 the appellant is sentenced to undergo 20 years’
imprisonment; and
(e)
In respect of count 10 the appellant is sentenced to undergo 12
years’ imprisonment.
2
All the sentences in respect of counts 1, 2, 4 and 10 are to run
concurrently with the
sentence of 20 years’ imprisonment
imposed on count 9;
3
All the sentences in respect of counts 5, 6, and 8 are to run
concurrently with the
sentence of 15 years’ imprisonment
imposed in count 3;
4
It is further ordered that five years of the sentence imposed in
respect of count 3
is to run concurrently with the sentence imposed
in respect of count 9.
5
The effect of the above is that the appellant is to serve a total of
30 years’
imprisonment.
6
The sentences are ante-dated to 25 September 2003, being the date
sentence was imposed
by the trial court.
JUDGMENT
Schoeman
AJA (Leach, Tshiqi and Zondi JJA and Schippers AJA
Concurring):
[1]
After a trial in the Natal Provincial Division of the High Court the
appellant, together with five co-accused, were convicted
of five
counts of attempted murder and four counts of robbery with
aggravating circumstances, flowing from what is commonly known
as a
‘cash-in-transit heist’.
On
25 September 2003 the appellant was sentenced to a cumulative period
of 205 years’ imprisonment with an order that the
effective
term of imprisonment imposed would be 95 years’ imprisonment.
[2]
With leave of the trial court, the appellant was granted leave to
appeal to the full court solely in respect of the cumulative
effect
of the sentences.
[3]
On 1 February 2008 the full court reduced the effective term of
imprisonment of the appellant and two of his convicted co-accused
who
had proceeded with the appeal, to 45 years’ imprisonment. It
further ordered, in terms of the provisions of s 276B(2)
of the
Criminal Procedure Act 51 of 1977 (the Act), that there would a
non-parole period of 25 years.
[1]
Special leave
was then granted to the appellant to appeal further to this court.
Background
[4]
The charges all relate to a single incident. On 17 September 2001 the
appellant was one of a group of people that attacked a
Fidelity
Guards motor vehicle, carrying an undisclosed amount of money, but
said to be about R2,5 million. As a result of the attack,
the motor
vehicle veered off the road and capsized. Some of the assailants,
armed with AK 47 rifles, approached the vehicle and
fired shots at
the security guards who were trapped in the motor vehicle.
Bulletproof windows protected the guards, but eventually
they were
forced to leave the vehicle and thereafter the perpetrators robbed
them of their firearms at gunpoint. The removal of
the money from the
vault of the motor vehicle proved to be impossible due to damage it
sustained when it capsized. While some of
the attackers attempted to
get into the vehicle others erected a roadblock. When members of the
public attempted to intervene,
they were shot at. At the roadblock
the assailants robbed three members of the public of two 303 rifles,
keys to a motor vehicle
and an Isuzu motor vehicle at gunpoint. When
a police motor vehicle approached the roadblock, the perpetrators
fired shots at it.
One of the occupants, Sergeant Thomas, was
seriously injured when a bullet struck him in the neck, rendering him
a paraplegic.
The other policeman, Inspector Ncwane’s life was
probably saved by the fact that the bullets struck his bulletproof
vest
twice, preventing injuries to his chest.
[5]
These events had the effect that the appellant and his co-accused in
the trial were charged and convicted of: (a) two
counts of
attempted murder of the two Fidelity Guards, Messrs Pillay and
Krishna (counts 1 and 2); (b) robbery with aggravating
circumstances
of their firearms (count 3); (c) attempted murder of Mr Pienaar
(count 4), one of the members of the public that
attempted to assist
the security guards; and (d) three further counts of robbery with
aggravating circumstances in respect of the
keys of one of the motor
vehicles that were stopped at the roadblock, the Isuzu motor vehicle
and the two rifles from members of
the public who had attempted to
assist the security guards (counts 5, 6 and 8). The shots fired at
the police vehicle, striking
Sergeant Thomas and Inspector Ncwane,
resulted in two further counts of attempted murder (counts 9 and 10).
[6]
Subsequently, the trial court imposed the following sentences on the
accused and ordered that certain of those sentences run
concurrently.
In respect of counts 1, 2, 9 and 10, four of the attempted murder
convictions, the appellant was sentenced to undergo
30 years’
imprisonment on each count. On the other attempted murder conviction,
of Mr Pienaar, count 4, he was sentenced
to undergo 20 years’
imprisonment. The robbery of the security guards’ firearms
(count 3) exacted a sentence of 20
years’ imprisonment. In
respect of the other three convictions of robbery with aggravating
circumstances (counts 5, 6 and
8) the trial court imposed sentences
of 15 years’ imprisonment on each count. As mentioned, the full
court did not interfere
with the sentences, but the effective prison
sentence of the appellant was reduced to 45 years’
imprisonment.
Issues
[7]
The issues in the appeal are threefold, namely: whether (a) the
imposition of the periods of imprisonment for the convictions
were
justified; (b) the effective term of imprisonment being a very long
term of imprisonment (often referred to as a Methuselah
sentence),
which will in all probability exceed the lifespan of an accused, can
be justified; and (c) the full bench was correct
in making a
determination in terms of s 276B(2).
The determination in terms of
s 276B(2) of the Act
[8]
Dealing with the last-mentioned issue, as already mentioned, the full
court determined that there should be a non-parole period
of 25
years’ imprisonment in terms of the provisions of
s 276B(2)
of
the
Criminal Procedure Act. There
are two fatal irregularities
attendant upon this.
[9]
First, the section was inserted by
s 22
of the
Parole and
Correctional Supervision Amendment Act 87 of 1997
which came into
operation on 1 October 2004.
The
crimes in this instance were committed in 2001, before the relevant
section came into operation. It has been held in
S
v Mchunu & another
[2]
that this
section does not operate retrospectively. In
Mchunu
this
court reasoned that the well established principle of our common law,
namely, that a penalty arises when a crime is committed
and not when
the person is convicted or sentenced, was applicable to the fixing of
a non-parole period.
[10]
Second, the possibility of the imposition of a non-parole period was
not debated before it was imposed as it ought to have
been, which
also was a fatal misdirection.
[3]
[11]
Accordingly, the full court’s determination in terms of s
276B(2) of the Act falls to be set aside.
[12]
Furthermore, even if an accused is sentenced to life imprisonment,
after serving 25 years imprisonment he or she will be considered
for
parole.
[4]
Therefore,
imposing a non-parole period of 25 years was akin to life
imprisonment, a sentence which is not appropriate as appears
from
what follows.
The sentences imposed
[13]
Turning to the individual sentences the appellant was around 28 years
old at the time of the incident. He was a first offender
and had been
in custody for a period of approximately two years as an awaiting
trial prisoner before he was sentenced.
[14]
We were not referred to any misdirection of the trial judge regarding
the sentences imposed. It is trite that the imposition
of an
appropriate sentence is a function which lies within the discretion
of the trial court.
[5]
A court of appeal’s power to interfere with sentence is
circumscribed.
[6]
It is only entitled to interfere if the imposition of a sentence is
affected by material misdirection or, in the absence of any
specific
misdirection, ‘when the disparity between the sentence of the
trial court and the sentence which the appellate Court
would have
imposed had it been the trial court is so marked that it can properly
be described as “shocking”, “startling”
or
“disturbingly inappropriate”
.’
[7]
If there were
such a disparity the crucial issue is whether the appellate court is
able to arrive at a definite view as to what
sentence it would have
imposed.
[8]
[15]
In the instant matter it is possible to arrive at a definite view as
to what appropriate sentences should have been imposed
in respect of
the different counts the appellant had been convicted of and to
impose sentence afresh.
Attempted murder
[16]
This was a violent attack, carried out by a ruthless group of people
who could have killed any number of civilians and police
officers.
However, I am of the view that the sentences imposed for attempted
murder in the circumstances of this case, are
disturbingly
inappropriate. In respect of the first two counts, shots were fired
at the complainants while they were protected
by bulletproof glass in
an armoured vehicle. There was no direct intent to kill them, but the
accused were convicted on the basis
of dolus eventualis. The
intention was clearly to force the complainants out of the motor
vehicle. When Messrs Pillay and Krishna
left the safety of the motor
vehicle they were vulnerable, but were not attacked. A sentence of 30
years’ imprisonment, a
sentence usually reserved for murder
under special circumstances, is excessive in this instance.
[17]
The conviction on the charge of the attempted murder of Mr Pienaar is
premised on shots that were fired at him when he came
to the
assistance of the security guards. However, Mr Pienaar was not
wounded and he did not testify as to his condition at the
time or the
consequences of the attempt on his life. A sentence of 20 years’
imprisonment cannot be justified under those
circumstances.
[18]
Furthermore, the consequences of the shots fired at Inspector Ncwane
were not serious, but it cannot be ignored that they were
aimed at
police officers and struck him in a vulnerable part of his body. It
was solely due to the bulletproof vest that he was
not wounded in his
chest area. The consequences of the shots fired at Sergeant Thomas
were devastating and changed his life completely.
[19]
I am of the view that a sentence of ten years’ imprisonment
would be appropriate in respect of the first three attempted
murder
charges. The counts of attempted murder of the two policemen are in a
different category. The shots were directed at the
cabin of the
police vehicle where both policemen were seated. The attempted murder
of a police officer performing his or her duties
is a very serious
offence. Life imprisonment is the prescribed sentence for the
completed offence.
[9]
Sergeant Thomas has been rendered a paraplegic, while the bulletproof
vest probably saved the life of Inspector Ncwane. An appropriate
sentence for the attempted murder of Inspector Ncwane is 12 years’
imprisonment, while the attempted murder of sergeant Thomas
warrants
a sentence of 20 years’ imprisonment.
Robbery with aggravating
circumstances
[20]
The provisions of
s 51(2)
(a)
(i)
of the
Criminal Law Amendment Act 105 of 1997
were applicable as the
appellant was convicted of robbery with aggravating circumstances and
he was a first offender. Therefore,
it was incumbent on the trial
court to impose a minimum sentence of 15 years’ imprisonment in
respect of each of the robbery
with aggravating circumstances
charges, unless there were substantial and compelling circumstances
to impose a lesser sentence.
There were no substantial and
compelling circumstances present in respect of three of the counts of
robbery. However, count 5 can
be differentiated as only the keys of a
motor vehicle were taken. I am of the view that the value of the
items robbed in count
5, in the circumstances of this case where all
the charges relate to a single incident, amount to substantial and
compelling circumstances
and a sentence deviating from the prescribed
sentence of 15 years’ imprisonment is justified and a sentence
of five years’
imprisonment is appropriate.
[21]
The trial judge imposed a sentence of 20 years’ imprisonment in
respect of the robbery of the two firearms of the two
security
guards. No reasons were given why the sentence in that instance
should be so severe. As stated previously the charges
all related to
a single incident and there is no justification for imposing a
harsher sentence in that instance. I am of the view
that 15 years’
imprisonment would also be the appropriate sentence is this instance.
The disparity between the sentence of
20 years’ imprisonment
and 15 years is so marked that interference is warranted.
The cumulative effect of the
sentences
[22]
It was pointed out in
S
v Muller
[10]
when
considering the cumulative effect of sentences:
‘
When
dealing with multiple offences, a sentencing court must have regard
to the totality of the offender's criminal conduct and
moral
blameworthiness in determining what effective sentence should be
imposed, in order to ensure that the aggregate penalty is
not too
severe.’
The
view was expressed that a cumulative sentence of 30 years’
imprisonment should be reserved for ‘particularly heinous
offences’.
[11]
[23]
One of the other accused in this matter Nkosinathi Erick Gamede,
appealed to the full court against his effective sentence
of 60
years’ imprisonment, after the appeal of the appellant had been
disposed of by the full court.
[12]
The appellant in that instance was 26 years old and was the youngest
of the accused at the time of the commission of the offences.
His sentence was reduced from 60 years to 30 years’ effective
imprisonment.
[24]
In my opinion this is also a case of considerable gravity and the
offences are particularly heinous. These were violent
acts,
perpetrated with the precision of a military armed attack. The
victims in the armed motor vehicle were repeatedly shot at
with
automatic firearms. The roadblocks were set up and manned by some of
the perpetrators wearing police paraphernalia. The two
policemen were
fortuitously not killed, but only because one was wearing a
bulletproof vest, and the other officer’s quality
of life has
inexorably deteriorated. The perpetrators’ actions were brazen
and they showed no restraint in executing their
objectives with
maximum violence, directed not only at the aforementioned persons,
but also at members of the public.
[25]
It has been accepted that life imprisonment is the most severe
sentence that can be imposed,
[13]
and it is the
sentence that has to be imposed if an offender needs to be removed
from society.
[14]
The sentence
of 45 years’ imprisonment that was imposed on appeal would have
the effect that the appellant, who was around
28 years old at the
time of the incident, would be some 80 years of age at the time of
his release. It is improper to take into
consideration any
possibility of parole in determining a suitable and proper
sentence.
[15]
Thus, despite
the aggravating circumstances I have mentioned, the sentence imposed
by the full court is effectively one of life
imprisonment and that is
shockingly inappropriate. I am of the view that the effective term of
imprisonment in this instance should
be 30 years. I am
reinforced in that view by counsel for both the appellant and the
State agreeing that such a sentence is
appropriate.
Order
[26] The following order is made:
1
The appeal against the sentences in respect of counts 1, 2, 3, 4, 5,
9 and 10 are successful,
and those sentences are set aside and
substituted with the following.
‘
(a)
In respect of counts 1, 2 and 4 the appellant is sentenced to undergo
10 years imprisonment on each count;
(b) In
respect of count 5 the appellant is sentenced to undergo five years’
imprisonment;
(c) In
respect of count 9 the appellant is sentenced to undergo 20 years’
imprisonment; and
(d) In
respect of count 10 the appellant is sentenced to undergo 12 years’
imprisonment.
2
All the sentences in respect of counts 1, 2, 4 and 10 are to run
concurrently with the
sentence of 20 years’ imprisonment
imposed on count 9,
3
All the sentences in respect of counts 5, 6, and 8 are to run
concurrently with the
sentence imposed in count 3 namely 15 years’
imprisonment.
4
It is further ordered that five years of the sentence imposed in
respect of count 3
is to run concurrently with the sentence imposed
in respect of count 9.
5
The effect of the above is that the appellant is to serve a total of
30 years’
imprisonment.
6
The sentences are ante-dated to 25 September 2003, being the date
sentence was imposed
by the trial court.
______________________
I
Schoeman
Acting
Judge of Appeal
APPEARANCES:
For
Appellant:
S D Slabbert
Instructed
by:
J H Slabbert
Attorney, Durban North
Van Wyk en Preller Inc,
Bloemfontein
For
Respondent:
J du Toit
Instructed by:
Director of
Public Prosecutions, Pietermaritzburg
Director of
Public Prosecutions, Bloemfontein
[1]
Section
276B(2) of the Act reads:
‘
276B
Fixing of non-parole-period
(1)
(a)
If a court sentences a person convicted of an offence to
imprisonment for a period of two years or longer, the court may as
part
of the sentence, fix a period during which the person shall not
be placed on parole.
(b)
Such period
shall be referred to as the non-parole-period, and may not exceed
two thirds of the term of imprisonment imposed or
25 years,
whichever is the shorter.
(2)
If a person who is convicted of two or more offences is sentenced to
imprisonment and the court directs that the sentences
of
imprisonment shall run concurrently, the court shall, subject to
subsection (1) (b), fix the non-parole-period in respect
of the
effective period of imprisonment.’
[2]
S v Mchunu & another
[2013] ZASCA 126
;
2013 JDR 2013 (SCA) para 5.
[3]
S v Stander
2012
(1) SACR 89
(SCA) para 22;
Mhlongo
v The State
(140/16)
[2016] ZASCA 152
(3 October 2016) paras 9-13.
[4]
Van Vuren v Minister of
Correctional Services & others
2012
(1) SACR 103
(CC) para 59. This is also provided for in
s
73(6)
(b)
(iv)
of the
Correctional Services Act 111 of 1998
.
[5]
S v Rabie
1975
(4) SA 855
(A) at 857D-F.
[6]
S v Bogaards
[2012]
ZACC 23
;
2013 (1) SACR 1
(CC) para 41.
[7]
S v Malgas
2001
(1) SACR 469
(SCA) para 12. See also
S
v Abrahams
2002 (1)
SACR 116
(SCA) para 15.
[8]
S v Matlala
2003
(1) SACR 80
(SCA) para 10. See also
S
v Monyane & others
2008
(1) SACR 543
(SCA) para 23.
[9]
The provisions of
s 51(1)
of the
provisions of the
Criminal Law Amendment Act 105 of 1997
read with
Schedule 2
Part I
(b)
(i)
determine that life imprisonment is the prescribed sentence in
instances when a law performance officer is murdered while
he was
performing his functions. See also S
v
Mahlamuza & another
[2014]
ZASCA 213
;
2015 (2) SACR 385
(SCA) para 18.
[10]
S v Muller & another
[2012] ZASCA 151
;
2012 (2) SACR 545
(SCA) para 9.
[11]
Ibid para 10.
[12]
Reported as
S
v Gamede
2016 JDR
0196 (KZP).
[13]
S v SMM
[2013]
ZASCA 56
;
2013 (2) SACR 292
(SCA) para 19.
[14]
S v Bull & another; S v
Chavulla & others
2001
(2) SACR 681 (SCA)
para
21.
[15]
S v S
1987
(2) SA 307
(A) at 313H – J. It has however been said that
the possibility of parole saves a life sentence from being cruel,
inhuman
and degrading punishment See
S
v Bull
ibid para 23.