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[2014] ZAGPJHC 270
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Vilazi v S (A64/2014) [2014] ZAGPJHC 270 (16 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: A64/2014
DATE:
16 OCTOBER 2014
In the matter
between:
BLESSING
VILAZI
.................................................
Appellant
And
THE
STATE
..........................................................
Respondent
J U
D G M E N T
MASHILE, J:
The Appellant, a 33
year old man, appeared before the Regional Court for the Region of
South Gauteng held at Alexandra on 15 April
2013 subsequent to a
charge of robbery of a 31 year-old Mr Samuel Ramia.
[2] The robbery
happened in Midrand and was with aggravating circumstances as
envisaged in Section 51(2) of the Criminal Law Amendment
Act No. 105
of 1997 (hereinafter “the Act”). The appellant was
legally represented throughout the duration of his
trial and was
warned that the provisions of Section 51 of the Act could be invoked
for purposes of the imposition of sentence should
he be found guilty
as charged.
[3] He pleaded not
guilty to the charge preferred against him and tendered no plea
explanation. On 15 April 2013 the trial court
nonetheless found him
guilty and simultaneously imposed a minimum sentence of 15 years as
provided in the Act. The trial court
made no pronouncement regarding
whether or not the Appellant was fit to possess a firearm in terms of
Section 103
of the
Firearm Controls Act No. 60 of 2000
.
[4] The Appellant
applied for leave to appeal against both conviction and sentence on
the same day. The magistrate considered his
application and refused
him leave on both. Leave to appeal having been denied, the Appellant
approached this court by way of a
petition. Masipa J and Khanyago AJ
considered it and granted leave to appeal against sentence only. For
that reason the Appellant’s
appeal is only against sentence.
[5] I do not intend
to set out the facts that led to the Appellant’s conviction
since his petition in that respect was not
successful. That being
so, I may make reference to portions of the facts that led the trial
court to conclude that the appropriate
sentence in the circumstances
was 15 years direct imprisonment.
[6] Prior to the
introduction of the minimum sentence legislation, it was a tradition
that a trial court had an unfettered discretion
when imposing a
sentence. However, a court of appeal could interfere with the trial
court’s sentencing discretion if it
deemed that the trial court
failed to exercise its discretion astutely and correctly.
[7] The minimum
sentence legislation has changed the general approach as I have
described it in the preceding paragraph. This shift
in approach is
palpable from S v PB
2013 (2) SACR 533
(SCA) at 539 where Bosielo JA
said:
“[20] What
then is the correct approach by a court on appeal against a sentence
imposed in terms of the Act? Can the appellate
court interfere with
such a sentence imposed by the trial court's exercising its
discretion properly, simply because it is not
the sentence which it
would have imposed or that it finds shocking? The approach to an
appeal on sentence imposed in terms of
the Act should, in my view, be
different to an approach to other sentences imposed under the
ordinary sentencing regime. This,
in my view, is so because the
minimum sentences to be imposed are ordained by the Act. They cannot
be departed from lightly or
for flimsy reasons. It follows therefore
that a proper enquiry on appeal is whether the facts which were
considered by the sentencing
court are substantial and compelling, or
not.”
[8] Robbery with
aggravating circumstances falls squarely under Section 51(2) of the
Act, which meant of course that unless the
trial court found the
existence of compelling and substantial circumstances as envisaged in
Section 51(3) of the Act, it would
have been obliged to impose the
preordained sentence. It is therefore necessary to establish whether
or not the trial court found
any compelling and substantial
circumstances in this case.
[9] It was argued by
Counsel for the Appellant that the trial court paid no attention to
the personal circumstances of the Appellant
when imposing the minimum
sentence. He asserted further that it could be inferred from the
trial court’s lack of reference
to those personal circumstances
that he did not give it any weight whatsoever when imposing the
sentence. The trial court might
not have referred to all the
personal circumstances mentioned by the legal representative of the
Appellant but it is plain that
he had them in mind when he said:
“I take into
account your personal circumstances, the fact that you are a first
offender in custody although not for a very
long period you are still
in custody as pointed out …”
[10] Counsel for the
Appellant then went ahead to list the following, which he said should
have led the trial court to conclude
that cumulatively they
constituted compelling and substantial circumstances as intended in
Section 51(3) of the Act:
10.1 The Appellant
was 33 years old and was a first offender;
10.2 The offence did
not appear to have been planned at all;
10.3 The complainant
did not suffer any injuries;
10.4 The complainant
recovered all the money taken from him.
[11] The trial court
correctly in my view found that all the circumstances listed above
could not be regarded as compelling and
substantial especially when
contrasted with the aggravating circumstances of the Appellant. The
Appellants and his co-perpetrators
could have used force, it would
appear, had the complainant resisted. Furthermore, one cannot regard
the fact that the money was
recovered as extenuating because had the
police not arrested them, the money would not have been regained.
Lastly, Counsel for
the Appellant contended that the offence was
opportunistic and not organised.
[12] That contention
cannot find favour with me for it appears obvious that the Appellant
and his co-perpetrators searched the area
until they spotted a lonely
vulnerable figure that could be attacked. What is even more
disquieting is that the robbery took place
broad daylight, which to a
degree demonstrates how brazen they were. I may even venture and
state that what they did is not consistent
with people committing
such a crime for the first time.
[13] The mere fact
that the trial court alluded to the personal circumstances of the
Appellant albeit without listing all of them
as the legal
representative for the Appellant has done is an indication that he
was mindful of them. The trial court was aware
that it was under an
obligation to impose the minimum sentence unless there were
compelling and substantial circumstances justifying
a departure from
it. Thus, after mentioning the personal circumstances of the
Appellant, it immediately makes reference to the
aggravating
circumstances thereby weighing them. It considered the following as
aggravating circumstances:
13.1 The Appellant
and his accomplices executed this crime in a planned manner;
13.2 They were a
gang;
13.3 They had a
get-away vehicle;
13.4 They utilised a
dangerous weapon;
13.5 It was by sheer
luck that a police officer happened to be driving in the area and
quickly responded to the complainant’s
cry for assistance;
13.6 They were
caught virtually red handed;
13.7 The crime was
prevalent in the area of jurisdiction of his court;
13.8 It was a
violent crime even though no one was hurt.
[14] The trial court
certainly considered the interests of the society, the prevalence,
nature and seriousness of the offence and
correctly sought to strike
a balance with the personal circumstances of the Appellant when
determining the sentence to impose.
[15] The trial court
concluded that the aggravating circumstances far out-weighed the
personal circumstances such that it was compelled
to impose the
prescribed minimum sentence. Having said that, it is instructive to
refer to S v Vilakazi
2009 (1) SACR 552
(SCA), where Nugent JA said
at paragraph 58:
“Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused
is married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of 'flimsy' grounds
that Malgas said should be avoided. But
they are nonetheless relevant
in another respect. A material consideration is whether the accused
can be expected to offend again
…”
[16] I am swayed
that the trial court was correct in its invocation of the minimum
sentence legislation for to hold otherwise will
be betraying what was
stated in S v Malgas,
2001 (1) SACR 469
(SCA) that “the
specified sentences are not to be departed from lightly or for flimsy
reasons” and that “speculative
hypothesis favourable to
the offender, undue sympathy, aversion to imprisoning first offenders
… are to be excluded”.
[17] In the premises
I make the following order:
1. The appeal
against sentence is dismissed.
B MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I agree:
R KEIGHTLEY
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Date Heard: 06
October 2014
Date of
Judgment: 16 October 2014
Counsel for the
Appellants: Adv. E Tlake
Instructed by:
Johannesburg Justice Centre
Counsel for the
Respondent: Adv. Adeoraj
Instructed by:
The Office of the DPP