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[2015] ZASCA 173
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Selli v S (220/2015) [2015] ZASCA 173 (26 November 2015)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 220/2015
DATE: 26 NOVEMBER
Not Reportable
In the matter between:
GINO LUIGI
SELLI
.........................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Neutral citation: Selli v The State
(220/15)
[2015] ZASCA 173
(26 November 2015)
Coram: Bosielo, Tshiqi and Swain JJA
Heard: 04 November 2015
Delivered: 26 November 2015
Summary: Criminal appeal against a
sentence of 15 years’ imprisonment imposed by the regional
magistrate – whether substantial
and compelling circumstances
present to justify a departure from the prescribed minimum sentence –
whether regional magistrate
competent to order a non-parole period.
ORDER
On appeal from: Gauteng Division of the
High Court, Pretoria (Mothle and Kollapen JJ sitting as a court of
appeal).
a) The appeal is upheld.
b) The order of the court below
refusing the appellant leave to appeal against his sentence is set
aside and replaced with the following:
‘The appellant is granted leave
to appeal against the sentence imposed on him by the regional
magistrate to the Gauteng Division
of the High Court, Pretoria.’
JUDGMENT
Bosielo JA (Tshiqi and Swain JJA
concurring)
[1] The appellant was convicted on his
plea of guilty on three counts. The first count is robbery with
aggravating circumstances
(read with the provisions of s 51(2) of the
Criminal Law Amendment Act 105 of 1997 (CLA) read further with s 1 of
the Criminal
Procedure Act 51 of 1977 (CPA), during which a motor
vehicle and a cellular phone worth approximately R21 000 was taken
from the
complainant, through the unlawful use of a firearm. The
second count is the unlawful possession of a firearm (a revolver 38
special).
The third count is the unlawful possession of ammunition (1
live round of a revolver 38 special).
[2] He was sentenced as follows:
(a) Robbery – 15 years’
imprisonment;
(b) Unlawful possession of a firearm –
5 years’ imprisonment, and
(c) Unlawful possession of ammunition –
6 months’ imprisonment.
All the sentences were ordered to run
concurrently. The regional magistrate made a further order that ‘in
terms of the provisions
of the Act on the minimum sentences you serve
at least 4/5 of that sentence in other words 12 years’.
[3] The appellant applied
unsuccessfully for leave to appeal against his sentence to the
regional magistrate. His petition to the
North Gauteng High Court,
Pretoria (Botha J and Mothle AJ) was refused on 2 December 2008.
Aggrieved by the refusal of his petition
for leave to appeal, he
filed an application for leave to appeal against the refusal of his
petition to the court below. On 21
November 2013, the court below
(Mothle and Kollapen JJ) made the following order:
‘That the application for leave
to appeal to the Supreme Court of Appeal be and is hereby granted
against the decision of
this Court refusing the petition to appeal.’
[4] As I will demonstrate hereunder the
court order referred to above is incompetent. As at 21 November 2013,
the Superior Courts
Act 10 of 2013 (the Act) had already come into
operation on 23 August 2013. This Act replaced the old Supreme Court
Act 59 of 1959.
The result is that the appeal was governed by
s
16(1)(b)
of the
Superior Courts Act which
provides that ‘an
appeal against any decision of a Division on appeal to it, lies to
the Supreme Court of Appeal upon special
leave having been granted by
the Supreme Court of Appeal.’ Faced with this conundrum, we
requested the Registrar of this
Court to request the parties to file
supplementary heads of argument regarding whether, in the light of
the provisions of s 16(1)(b)
of the Act, this Court had jurisdiction
to hear the appeal on the merits.
[5] Both counsel conceded, correctly in
my view, that based on the provisions of s 16(1)(b) of the Act, the
court below did not
have jurisdiction to hear the appeal against the
refusal of the petition for leave to appeal nor the power to grant
leave to appeal
to this Court. It is only this Court that has the
power to grant special leave to appeal to it from a decision by the
court below
given on appeal to it. This legal position has been
recently endorsed by this Court in various judgments, which includes
Potgieter
v S (20109/2014)
[2015] ZASCA 15
(17 March 2015) paras 2
and 3; Johannes Windvogel v The State (20091/2014)
[2015] ZASCA 63
(8
May 2015) para 8 and Hattingh v S (20099/2014)
[2015] ZASCA 84
(28
May 2015).
[6] The order made on 21 November 2013
was therefore a nullity. Logically, this meant that what is before us
is not an appeal on
the merits but an appeal against the judgment of
the court below (Botha J and Mothle AJ) refusing the appellant’s
petition
for leave to appeal the judgment of the regional magistrate.
See S v Matshona (509/2007)
[2008] ZASCA 58
;
2013 (2) SACR 126
(SCA);
S v Kriel (483/10)
[2011] ZASCA 113
;
2012 (1) SACR 1
(SCA).
[7] Essentially, what we are called
upon to decide is the crisp issue whether the court below erred in
finding that there are no
reasonable prospects that another court
might interfere with the sentence imposed.
[8] The appellant's counsel launched a
two pronged attack against the sentence imposed on the appellant.
Firstly, he contended that
the regional magistrate erred in failing
to find that the cumulative effect of the appellant's personal
circumstances amounted
to substantial and compelling circumstances,
justifying a departure from the minimum prescribed sentence of 15
years' imprisonment.
Secondly, he attacked the regional magistrate's
decision to impose a further condition that the appellant must serve
at least 4/5
of the sentence amounting to 12 years, the so-called
non-parole period as being improper as it is not sanctioned by s
276B(1)(b)
of the CPA.
[9] Section 276B provides:
‘276B Fixing of non-parole-period
(1) (a) If a court sentences a person
convicted on 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.’
[10] The respondent's counsel conceded
that, although this case has aggravating features, there are
reasonable prospects that another
court might find that the
appellant's personal circumstances, taken cumulatively, qualify as
substantial and compelling circumstances
to justify a sentence less
than the prescribed minimum sentence of 15 years' imprisonment.
Regarding the order for the non-parole
part of the sentence, once
again the respondent's counsel conceded, correctly in my view, that s
276B(1)(b) of the CPA does not
support such an order.
[11] It is trite that we can only grant
the appellant leave to appeal against the judgment of the regional
magistrate if we are
satisfied that there are reasonable prospects of
success on appeal. See S v Smith (475/10)
[2011] ZASCA 15
;
2012 (1)
SACR 567
(SCA).
[12] The approach by the regional
magistrate to the existence or otherwise of substantial and
compelling circumstances is a serious
cause for concern. He failed to
make a proper enquiry into the existence of substantial and
compelling circumstances. The record
reflects the following cryptic
comment by the regional magistrate: ‘Mr Selli, clearly there is
no compiling (sic) and material
circumstances’. Furthermore,
neither counsel was ever requested or given an opportunity to address
the court on the existence
or otherwise of substantial and compelling
circumstances.
[13] Section 51(3) of the CLA requires
a purposeful enquiry by a sentencing officer into such circumstances.
Self-evidently, this
is intended to avoid visiting an accused with
the severest sentence except in circumstances where there are no
weighty or cogent
facts which call for a less severe sentence. A
failure by a sentencing officer to be diligent, conscientious and
punctilious in
his or her search for substantial and compelling
circumstances might result in a sentence which is disturbingly
inappropriate and
amounts to an injustice. Undoubtedly, such a
failure amounts to a serious misdirection. This is what happened in
this case. Justice
and fairness requires that this matter be referred
back to the court below so that an appropriate enquiry into the
existence of
substantial and compelling circumstances can be
launched.
[12] Regarding the second leg as
indicated earlier, it suffices that the respondent's counsel conceded
that it was improper for
the regional magistrate to make an order for
the non-parole part of the sentence as this is not provided for in s
276B(1)(b) of
the CPA. I agree that the regional magistrate erred in
this regard.
[13] In the result, the following order
is made:
a) The appeal is upheld.
b) The order of the court below
refusing the appellant leave to appeal against his sentence is set
aside and replaced with the following:
‘The appellant is granted leave
to appeal against the sentence imposed on him by the regional
magistrate to the Gauteng Division
of the High Court, Pretoria.’
L O Bosielo
Judge of Appeal
APPEARANCES:
For Appellant:R Gissing
Instructed by: Nichole Landman
Attorneys, Fonteinriet
Symington & De Kok, Bloemfontein
For Respondent: S Scheepers
Instructed by:Director Public
Prosecutions, Pretoria
Director Public Prosecutions,
Bloemfontein