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[2020] ZAGPJHC 204
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Cliff v S (A157/2019) [2020] ZAGPJHC 204 (6 May 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER:
A157/2019
In
the matter between:-
MONYAI
CLIFF
Appellant
and
THE
STATE
Respondent
JUDGMENT
FMM SNYMAN (AJ)
Introduction
[1]
This
is an appeal against the sentence of the appellant after he was
charged together with 2 other accused in the Regional Court
sitting
in Randburg on 8 counts of robbery with aggravating circumstances and
2 counts of unlawful possession of a fire-arm and
ammunition
respectively.
[2]
The
appellant was found guilty on 5 counts of robbery with aggravating
circumstances and 2 counts of unlawful possession of a fire-arm
and
ammunition respectively. The appellant was sentenced on 11
November 2010 to a total period of 35 years imprisonment.
Incomplete
record
[3]
The
appellant, the State and the Magistrate in the Court
a
quo
were not able to reconstruct a complete record. The following
evidence do not form part of the record:
[3.1]
The
annexures to the charge sheet are not part of the record;
[3.2]
The
exact nature of the sentences imposed is not apparent from the J15
(Charge Sheet) or any annexure thereto;
[3.3]
The
transcription ends at page 125 after the evidence of the appellant
and does not include the evidence of the 2 co-accused individuals;
[3.4]
The
SAP 69 form is not part of the record (that is the
appellant’s
criminal
record status)
;
[3.5]
The
judgment on the conviction is not part of the record;
[3.6]
The
evidence in aggravation or mitigation of sentence is not part of the
record;
[3.7]
The
arguments in support of aggravation or mitigation of sentence are not
part of the record; and
[3.8]
The
judgment on the sentences is not part of the record.
[4]
Counsel
for both the appellant and respondent have agreed to proceed and
request that the appeal be finalised despite the lack of
a complete
record. The representatives of both parties submitted that the
record is as complete as it ever will be and a
postponement would not
be of any value to obtain a more complete record.
[5]
Both
parties have the duty to reconstruct the record from secondary
sources and it is apparent from the record before Court that
the
parties have indeed done everything in their power to reconstruct and
reassemble the record. There are mainly 2 reasons
why the
record is incomplete: the transcribed record was done on an old
machine and the record could not be traced; and the magistrate
has
retired and has no independent recollection or notes on the trial.
[6]
As
found in
S
v Zondi
2003
(2) SACR 227
(W) at paragraph 9, the adequacy of an appeal record
depends on the basis and grounds of the particular appeal.
[7]
Despite
the agreement between the parties that the appeal should proceed on
the record before the Court, it is for this Court to
determine and
satisfy itself that the record before the appeal Court is indeed
sufficient to give adherence to the principle that
the appellant has
a fair and just appeal. One of the bases on which an appeal
would be fair obviously entails a complete
record with sufficient
information to enable the Court to come to a fair decision.
Should the record not be sufficient, the
appellant would be entitled
to an acquittal.
[8]
This
Court has to consider and assess the adequacy of the record for
purposes of this appeal against sentence. In the matter
of
S
v dos Santos
2018 (1) SACR 20
(GP) on the issue of an incomplete record, the
following was held by Jacobs AJ (with Rabie J concurring):
“
[3]
Our law requires that an appeal record must be adequate for
consideration of the appeal. The record need not be a perfect
recordal
of everything that was said at the trial. (
S
v Chabedi
2005
(1) SACR 415
(SCA)). The question whether defects in an appeal
record are so serious that a proper consideration of the appeal is
not
possible should not be answered in the abstract, but rather on
the nature of the defects and in particular what is available of
the
record and the nature of the issues to be decided on appeal.”
[9]
The
Constitutional Court has considered the issue of an incomplete record
in relation to a fair appeal in
S
v Schoombee and Another
2017
(2) SACR 1
(CC) and found in paragraphs 19 to 21 as follows:
“
It is
long established in our criminal jurisprudence that an accused's
right to a fair trial encompasses the right to appeal. An
adequate
record of trial court proceedings is a key component of this right.
When a record is inadequate for a proper consideration
of an appeal,
it will, as a rule, lead to the conviction and sentence being set
aside.”
[10]
The
question whether defects in an appeal record are so serious that a
proper consideration of the appeal would not be possible,
should be
answered on the nature of the defects and in particular on evaluation
of what is available of the record and the nature
of the issues to be
decided on appeal.
[11]
In
determining whether the record is sufficient to render the appeal
fair, it is necessary to examine the nature of the issues to
be
decided on appeal in relation to the available record.
The
appeal
[12]
This
appeal is only against the sentences imposed on the accused. I
will repeat the counts, as well as the findings and sentences.
I will deal with the appeal against the appellant’s sentence in
more detail after the summary of the counts and outcomes
thereof.
[13]
The
appellant was charged on the following counts:
[14]
Count
1:
“
HOUSEBREAKING
WITH INTENT TO ROB WITH AGGRAVATING CIRCUMSTANCES READ WITH THE
PROVISIONS OF SECTION 1 AND SECTION 262(1) AND
SECTION 260
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
AND SECTIONS 51 AND 52 OF ACT 105
OF 1977.
IN THAT on or
about 13 April 2007 and at or near […] A. street Cosmo City,
Randburg in the Regional Division of Gauteng the
accused unlawfully
and intentionally break open and enter the house of Thembela
Mayathula and Isaac Matwa with the intent to rob
and did unlawfully
and intentionally assault Thembela Mayathula and or Isaac Matwa and
did then and there and with force take the
following from their
possession to wit: a DVD player, DVD’s and 74 centimetre
television all to the value of approximately
R8,000.00, the property
of, or in the lawful possession of Thembela Mayathula or Isaac
Matwa.”
[14.1]
The
appellant was acquitted on this count after a section 174 application
for acquittal in terms of the Criminal Procedure Act 51
of 1977
(“CPA”) was brought.
[14.2]
The
appellant was subsequently discharged on this count.
[15]
Count
2 reads as follows:
“
HOUSEBREAKING
WITH INTENT TO ROB WITH AGGRAVATING CIRCUMSTANCES READ WITH THE
PROVISIONS OF SECTION 1 AND SECTION 262(1) AND
SECTION 260
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
AND SECTIONS 51 AND 52 OF ACT 105
OF 1977.
IN THAT on or
about 8 July 2007 and at or near […] Z. Street, Cosmo City in
the Regional Division Gauteng, the accused unlawfully
and
intentionally broke open and entered the house of Zwakheli Motswa and
Issac Sibuya with the intent to rob and did unlawfully
and
intentionally assault Zwakheli Motswa and Issac Sibuya and did then
and there and with force take the following from their
possession to
wit: two leather jackets, shoes and clothing, a clothing bag, a DVD
player, speakers value unknown to the state,
the property or in the
lawful possession of Zwakheli Motswa and or Issac Sibuya.”
[15.1]
The
appellant’s section 174 application in terms of the CPA was
dismissed.
[15.2]
The
appellant was however found not guilty on this count.
[16]
Count
3 reads as follows:
“
HOUSEBREAKING
WITH INTENT TO ROB WITH AGGRAVATING CIRCUMSTANCES READ WITH THE
PROVISIONS OF SECTION 1 AND SECTION 262(1) AND
SECTION 260
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
AND SECTIONS 51 AND 52 OF ACT 105
OF 1977.
IN THAT upon
or about 25 July 2007 and at or near […] C. street, Cosmo City
in the Regional Division of Gauteng the accused
did unlawfully and
intentionally break open and enter the house of Phumlani Nyembe and
or Mphumzeni Nyembe with the intent to rob
and did unlawfully and
intentionally assault Phumlani and or Mphumzeni Nyembe and did then
and there and with force take the following
from their possession to
wit three cellphones, two laptops, two pairs of running shoes, a
computer tower and a computer as well
as a pair of black shoes to the
value of approximately R20,000.00 the property or in the lawful
possession of Phumlani Nyembe and
or Mphumzeni Nyembe.”
[16.1]
The
appellant was found guilty on this count.
[16.2]
The
appellant was sentenced to 15 years imprisonment on this count.
[17]
Count
4 reads as follows:
“
HOUSEBREAKING
WITH INTENT TO ROB WITH AGGRAVATING CIRCUMSTANCES READ WITH THE
PROVISIONS OF SECTION 1 AND SECTION 262(1) AND
SECTION 260
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
AND SECTIONS 51 AND 52 OF ACT 105
OF 1977.
IN THAT upon
or about 10 August 2007 and at or near […] H. Street, Cosmo
City in the Regional Division of Gauteng the accused
did unlawfully
and intentionally break open and enter the house of Queen Zanele
Ndlovu and or Tamsanca Ndlovu with the intent to
rob and did
unlawfully and intentionally assault Queen Zanele Ndlovu and or
Tamsanca Ndlovu and did then and there and with force
take the
following from their possession to wit a DVD player, a AIM DVD
player, Sansui amplifier, a JVC CD player. Nokia
cellphone,
Nokia 62 cellphone, a Samsung Z540 cellphone, two speakers, a pair of
shoes, a towel, air-freshner, more or less 20
DVD’s and musical
CD’s, video cassettes, a VCR and the value of all the items
approximately R15,000.00.”
[17.1]
The
appellant was found guilty on this count.
[17.2]
The
appellant was sentenced to 15 years imprisonment on this count.
[18]
Count
5 reads as follows:
“
HOUSEBREAKING
WITH INTENT TO ROB WITH AGGRAVATING CIRCUMSTANCES READ WITH THE
PROVISIONS OF SECTION 1 AND SECTION 262(1) AND
SECTION 260
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
AND SECTIONS 51 AND 52 OF ACT 105
OF 1977.
IN THAT upon
or about 22 August 2007 and at or near […] J. Street, Cosmo
City in the Regional Division of Gauteng the accused
did unlawfully
and intentionally break open and enter the house of Lucky Lesese with
the intent to rob and did unlawfully and intentionally
assault Lucky
Lesese and did then and there and with force take the following from
his possession to wit a continental pillow cover,
six pairs of shoes
to the value of R4,800.00, one by Daniel Hector belt to the value of
R200.00, a silver LG television value R3,000,
a silver Mercer laptop
value R6,000.00, a LG home-theatre system valued R2,500.00, two DVD’s
plus minus R120.00 and 20 CD’s
to the value of approximately
R1,000 as well as a black Samsung cellphone to the value of
R1,500.00.”
[18.1]
The
appellant was found guilty on this count.
[18.2]
The
appellant was sentenced to 15 years imprisonment on this count.
[19]
Count
6 reads as follows:
“
HOUSEBREAKING
WITH INTENT TO ROB WITH AGGRAVATING CIRCUMSTANCES READ WITH THE
PROVISIONS OF SECION 1 AND SECTION 262(1) AND
SECTION 260
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
AND SECTIONS 51 AND 52 OF ACT 105
OF 1977.
IN THAT upon
or about 24 August 2007 and at or near […] A. Street, Cosmo
City in the Regional Division of Gauteng the accused
did unlawfully
and intentionally break open and enter the house of Teresa Mnisi with
the intent to rob and did unlawfully and intentionally
assaulted
Teresa Mnisi and did then and there and with force take the following
from her possession to wit a Nokia 3310 cellphone
valued R350.00 as
well as R200.00 in cash, the property in lawful possession of Teresa
Mnisi.”
[19.1]
The
appellant was acquitted from this count after a section 174
application in terms of the CPA was brought.
[19.2]
The
appellant was subsequently discharged on this count.
[20]
Count
7 reads as follows:
“
HOUSEBREAKING
WITH INTENT TO ROB WITH AGGRAVATING CIRCUMSTANCES READ WITH THE
PROVISIONS OF SECTION 1 AND SECTION 262(1) AND
SECTION 260
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
AND SECTIONS 51 AND 52 OF ACT 105
OF 1977.
IN THAT upon
or about 28 August 2007 and at or near […] B. Street, Cosmo
City Extension 5 in the Regional Division of Gauteng
the accused did
unlawfully and intentionally break open and enter the house of Brenda
Moni and Theodora Nyatonga with the intent
to rob and did unlawfully
and intentionally assault Brenda Moni and Theodora Nyatonga and did
then and there and with force take
the following from her possession
to wit a Nokia cellphone to the value of R500.00 as well as a
Motorola cellphone to the value
of R1,300.00.”
[20.1]
The
appellant was found guilty on this count.
[20.2]
The
appellant was sentenced to 15 years imprisonment on this count, to be
served concurrent with the sentence on count 9.
[21]
Count
8 reads as follows:
“
HOUSEBREAKING
WITH INTENT TO ROB WITH AGGRAVATING CIRCUMSTANCES READ WITH THE
PROVISIONS OF SECTION 1 AND SECTION 262(1) AND
SECTION 260
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
AND SECTIONS 51 AND 52 OF ACT 105
OF 1977.
IN THAT upon
or about 28 August 2007 and at or near […] S. Road, Cosmo City
in the Regional Division of Gauteng the accused
did unlawfully and
intentionally break open and enter the house of Bheki Norman
Makhatini with the intent to rob and did unlawfully
and intentionally
assault Bheki Norman Makhatini and did then and there and with force
take the following from his possession to
wit a Wolf Dell television
valued R2,500, a LG microwave value R1,500.00, a laptop valued at
R5,000.00, a digital camera value
R1,500.00, Nokia cellphone value
R4,000.00, a kettle valued R200.00, a DVD player value R1,000.00, a
DSTV decoder valued at R2,000.00
and R380.00 in cash the
property or lawful possession of Bheki Norman Makhatini.”
[21.1]
The
appellant was found guilty on this count.
[21.2]
The
appellant was sentenced to 15 years imprisonment on this count.
[22]
Count
9 reads as follows:
“
POSSESSION
OF A FIRE-ARM CONTRAVENING THE PROVISIONS OF
SECTION 3
OF THE
FIREARMS CONTROL ACT 60 OF 2000
FURTHER READ WITH THE PROVISIONS OF
ACT 105 OF 1997
IN THAT upon
or about 29 August 2007 and at or near Randburg in the Regional
Division of Gauteng the accused unlawfully had in his
possession the
following firearm to wit a nine millimetre calibre Vector
semi-automatic pistol without holding a licence, permit
or
authorisation issued in terms of the Act to possess that firearm.”
[22.1]
The
appellant was found guilty on this count.
[22.2]
The
appellant was sentenced to 15 years imprisonment, to be served
concurrent with the sentence on count 7.
[23]
Count
10 reads as follows:
“
POSSESSION
OF AMMUNITION, CONTRAVENING THE PROVISIONS OF
SECTION 90
OF THE
FIREARMS CONTROL ACT 60 OF 2000
FURTHER READ WITH THE PROVISIONS OF
ACT 105 OF 1997
IN THAT upon
or about 29 August 2007 and at or near Kya-Sands squatter camp in the
Regional Division of Gauteng the accused unlawfully
had in his or
their possession the following ammunition to wit 15 nine millimetre
parabellum calibre cartridges without being the
holder of a licence
in respect of a firearm capable of discharging the ammunition.”
[23.1]
The
appellant was found guilty on this count.
[23.2]
The
appellant was sentenced to 3 years imprisonment.
[24]
In
each of the counts number 4, 5, 7 and 8, a period of 10 years of the
15 years were ordered to run concurrent with the 15 years
of count
number 3.
[25]
The
court further ordered that the sentences on counts number 9 and 10
run concurrent with the sentence of count number 3.
[26]
The
appellant was effectively sentenced to 35 years imprisonment.
[27]
The
appellant is now appealing against the effective sentence of 35 years
imprisonment imposed by the trial court on the grounds
that it is
excessive and extremely harsh. Counsel for the appellant submitted
during argument in court that a sentence of 35 years
imprisonment
would effectively amount to a lifelong imprisonment for the appellant
and that 25 years imprisonment would be appropriate
in the
circumstances.
[28]
The
appellant in his notice of appeal contended that the trial court
failed to adequately consider the following personal circumstances:
[28.1]
He
is 35 years old;
[28.2]
He
is a first time offender; and
[28.3]
The
time spent in prison awaiting the finalisation of the trial.
[29]
The
appellant further contended that the trial court did not adequately
consider his prospects of rehabilitation, and it overemphasized
the
seriousness of the offence, the interest of society, the prevalence
of the offence and the deterrent effect of the sentence.
[30]
I
will deal with the grounds of appeal after making a finding on
whether the record is complete and sufficient to grant the appellant
a fair and just opportunity to have the appeal considered properly.
Finding
on incomplete record
[31]
I
have examined the nature of the issues to be decided on appeal in
relation to the available record. It was submitted on behalf
of the
appellant during argument that the most prevailing ground of appeal
is the inadequate consideration of the age of the appellant
by the
trial court.
[32]
No
reference was made of pre-sentencing reports or victim-impact
reports. These reports were also not listed by
the
parties as evidence that could not be reconstructed as part of the
record. As such, I make the inference that there were no
such
reports.
[33]
The
evidence on sentencing mitigation and aggravation, as well as the
argument thereof, is not essential to be before this Court
in
considering the appeal because they are common cause between the
parties.
[34]
The
records absent from Court, would not play a determining part in the
outcome of the appeal as the information contained in the
absent
record, has been obtained from secondary sources and/or is common
cause before this Court.
[35]
Taking
into account the case law referred to above I find that the issues to
be decided on appeal in relation to the available record
can indeed
be determined on the available record. The appeal can proceed
on the defective record and the appellant will suffer
no prejudice
thereto.
Sentence
[36]
In
determining an appeal on sentencing, it was stated in
S
v Malgas
2001
(1) SACR 469
(SCA) that:
“
Courts
are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment . . . as
the sentence
that should ordinarily and in absence of weighty justification be
imposed for the listed crimes in the specified circumstances.”
[37]
As
set out herein under, the crimes committed by the appellant are
indeed crimes that the Legislature has ordained life imprisonment
as
a sentence. Any deviation thereto, should be justified. In
S
v Obisi
2005 (2) SACR 350
(W) the full bench held that the test on appeal
against sentence was not whether the appellate tribunal would have
imposed another
form of punishment, but whether or not the trial
court had exercised its discretion properly and reasonably in
imposing sentence.
[38]
I
deal with each ground of appeal individually.
Age
of 35
[39]
The
appellant has been found guilty on 5 counts of robbery with
aggravating circumstances and 2 counts of unlawful possession of
a
fire-arm and ammunition. These are very serious
offences which started in July 2007 and escalated in severity
until
August 2007. It is clear that the appellant and his 2
co-accused were on a rampage of destruction in the neighbourhood.
All of the criminal counts were in the area of Cosmo City, Randburg.
[40]
The
evidence against the appellant reflected that the appellant and his 2
co-accused escalated in seriousness of the crimes.
The
modus
operandi
included
that the appellant and co-accused would enter the houses when the
victims were asleep, assault the victims and stole items
of various
value. Had they not been caught, I have no doubt that the
ransacking of Cosmo City would have continued and escalated.
[41]
The
complainant in the 4
th
count, Ms Ndlovu, testified that accused number 3 shot at her husband
but missed him in that he ducked in evading the bullet.
The
bullet entered her husband’s pillow. The complainant
testified that she identified both accused number 3 and the
appellant, and that the appellant was standing next to accused number
3 when he shot at her husband.
[42]
The
age of the appellant is not a factor that influences this Court to
reduce the sentence of the appellant. At age 35, the
appellant
was well aware that what he was doing was criminal. The manner
in which the crimes escalated, and the manner in
which the appellant
associated himself with his co-accused when the complainants were
shot at, and the illegal fire-arm used, confirms
that the appellant
was not under undue influence or pressure from his co-accused, but
indicates that the appellant acted out of
own accord.
[43]
At
the age of 35 one would expect of a citizen to have obtained
employment and be a pillar in the community. Instead, the
appellant appears to have been a career criminal, having regard to
the frequency of the robberies. There were 5 robberies
in
approximately 1 month, from 25 July 2007 to 29 August 2007, all in
the same area and with the same
modus
operandi
.
[44]
This
ground of appeal cannot be successful and is accordingly dismissed.
First
offender
[45]
It
is common cause that the appellant is a first offender.
[46]
The
sheer magnitude and frequency of the criminal conduct surpasses the
fact that the appellant is a first offender. I dare
say that
the appellant is not so much as a first offender, as some-one who has
been caught for the first time.
[47]
Even
though the appellant is a first offender, there are other factors
that cancel the mitigatory aspect of being a first offender.
These factors are:
[47.1]
The
fact that the appellant was charged with 8 counts and convicted on 5
counts of robbery with aggravating circumstances;
[47.2]
The
fact that the appellant was found in possession of an illegal
fire-arm and ammunition;
[47.3]
The
fact that the crimes escalated in violence and frequency in the same
neighbourhood.
[48]
The
fact that the appellant is a first offender cannot be sustained as a
ground of appeal and is accordingly dismissed.
Time
awaiting trial in prison
[49]
The
Court considered that the appellant has been awaiting trial in
prison.
[50]
The
Court also considered that the sentencing has already taken place
during 2010, thus the appellant has already served 10 years
of his
sentence.
[51]
The
time that the appellant spent in prison awaiting trial, as well as
the time that the appellant has already spent in execution
of his
sentence, is not a ground that the Court would consider significant
in evaluating the sentences issued by the court
a
quo
.
This is so, due to the gravity of the crimes. Having been found
guilty on 5 counts of robbery with aggravating circumstances,
and
possession of an illegal fire-arm and ammunition, the period awaiting
trial does not impact on adjusting the time-period of
the sentencing.
[52]
This
ground of appeal can therefore not be successful and it is dismissed.
35
years harsh and excessive; as well as rehabilitation
[53]
Counsel
for the appellant argued that the Magistrate in the court
a
quo
did,
to a degree, take into account the cumulative effect of the sentences
imposed, but submitted that it was not properly and/or
sufficiently
as the resultant effect of 35 years imprisonment is excessive in the
circumstances.
[54]
Counsel
on behalf of the appellant referred the Court to several matters (
R
v Mzwakala
1957 (4) SA 273
(A);
S
v Tuhadeleni
1969 (1) SA 153
(A) and
S
v Whitehead
1970 (4) SA 424
(A)) in which it was held that a sentence of 25 years
imprisonment were regarded as excessive and should only be applied in
exceptional
circumstances.
[55]
Counsel
for the appellant submitted that a sentence in the total of 25 years
instead of 35 years, would be fair and reasonable.
[56]
The
appellant has the opportunity to prove his capability of
rehabilitation with the numerous rehabilitation programmes in prison.
Because of the nature, the seriousness and prevalence of the offences
committed by the appellant I deem it to the benefit of the
appellant
to serve a longer sentence of imprisonment to enable himself to
rehabilitate in prison. This would also be to the
benefit and
protection of the society.
[57]
It
deems to be repeated that the appellant is charged and found guilty
on 5 counts of housebreaking with the intent to rob and robbery
with
aggravating circumstances read with the provisions of section 1 and
section 262(1) and
section 260
of the
Criminal Procedure Act 51 of
1977
read with
section 51
of the
Criminal Law Amendment Act, 105 of
1997
.
[58]
Section
51
of the
Criminal Law Amendment Act, 105 of 1997
reads as follows:
“
51
Discretionary minimum
sentences for certain serious offences
(1)
…
.
(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall sentence a person
who has been
convicted of an offence referred to in-
(a)
Part II
of Schedule 2, in the case of-
(i)
a
first offender, to imprisonment for a period not less than 15 years
;
…
..”
(own
emphasis)
[59]
Robbery
with aggravating circumstances is listed in
Part II
of Schedule 2 of
Act 105 of 1997.
[60]
The
Magistrate in the court
a
quo
was
compelled under the statutory provisions of
section 51
of the
Criminal Law Amendment Act 105 of 1997
to issue a sentence of 15
years on each conviction of every individual count of robbery.
The Magistrate
a
quo
has
thus already given consideration to the length of the sentences, in
that he has already applied concurrent running of sentencing.
[61]
The
cases that the counsel for the appellant referred the Court to in
support thereof that a sentence of 35 years is excessive,
are all
cases that were determined prior to the commencement of the Criminal
Procedure Act 105 of 1997 and as such is not applicable
in this
matter.
[62]
This
ground of appeal can accordingly also not succeed and is dismissed.
Conclusion
[63]
The
sentencing falls primarily within the discretion of the trial court,
as the trial court has had personal observations of the
evidence of
the complainants and the appellant during the trial. The Supreme
Court of Appeal has confirmed in
S
v Salzwedel and Others
1999
(2) SACR 586
(SCA) that the Court of appeal is only entitled to
interfere if the sentence given by the Court
a
quo
is “
disturbingly
inappropriate, so totally out of proportion to
[the-sic]
magnitude
of offence, or sufficiently disparate, or vitiated by misdirection
showing that trial Court exercised
[its-sic]
discretion
unreasonably”.
[64]
I
do not find that any of the circumstances as raised in the Court
a
quo
or
in this appeal would affect the sentencing to result in it being
shocking and/or disturbingly inappropriate. The trial court
reduced
the cumulative effect of the total sentence imposed of 93 years
imprisonment to 35 years effective imprisonment. The effective
sentence is lengthy because the appellant was convicted and sentenced
on multiple serious offences. It is apparent from the available
record that he robbed the complainants of valuable items, the
immovable properties were damaged during the robberies and some of
the complainants sustained physical and emotional injuries. The
appellant is a danger to the society.
[65]
I
agree with the Court
a
quo
that
a proper sentence for the appellant would be a collective period of
effectively 35 years imprisonment.
I
therefore propose the following order:
1.
The
appeal on the sentence is dismissed.
_________________________________
FMM SNYMAN, AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION
I
agree and it is so ordered:
__________________________
MMP MDALANA-MAYISELA, J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
DATE OF HEARING: 4 February 2020
DATE OF JUDGMENT: 6 May 2020
JUDGMENT HANDED DOWN
ELECTRONICALLY DUE TO COVID 19 RESTRICTIONS
Appearance for the appellant: Adv M
Miller
Johannesburg
Justice Centre
Legal
Aid Board
Cell:
071 6876214
Tel: 011 870 1480
E-mail:
advocatemiller@gmail.com
Appearance for the respondents: Adv PT
Mpekana
Office
of the Director of Public Prosecutions
Gauteng
Local Division, Johannesburg
Cell:
076 892 9932
Tel: 011 220 4105
E-Mail:
tpmpekana@npa.gov.za