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[2013] ZASCA 30
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Mabunda v S (765/12) [2013] ZASCA 30; 2013 (2) SACR 161 (SCA) (27 March 2013)
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THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
765/12
Reportable
In
the matter between:
GIVEN MABUNDA
..........................................................................................
Appellant
and
THE
STATE
................................................................................................
Respondent
Neutral
citation:
Mabunda v S
(765/12)
[2013] ZASCA 30
(27 March
2013)
Coram:
Lewis and Leach JJA and Erasmus AJA
Heard:
12 March 2013
Delivered:
27 March 2013
Summary: Robbery with aggravating circumstances ─
two counts of robbery committed at gunpoint the same night ─
appellant
sentenced to two sentences of 15 years’ imprisonment
that were not ordered to run concurrently ─ effective sentence
of 30 years’ imprisonment too severe ─ on appeal,
sentences ordered to run concurrently for a period of 12 years
resulting
in an effective sentence of 18 years’ imprisonment.
___________________________________________________________________
O R D E R
___________________________________________________________________
On appeal from:
Limpopo High Court, Thohoyandou
(Makhafola J sitting as court of first instance):
(a) The appeal succeeds to the extent only that it is
ordered that 12 of the 15 years’ imprisonment imposed in
respect of
count 2 are to run concurrently with the sentence of 15
years’ imprisonment imposed on count 1.
(b) The appeal is otherwise dismissed.
___________________________________________________________________
J U D G M E N T
__________________________________________________________________
LEACH
JA (LEWIS JA and ERASMUS AJA concurring)
[1] The appellant, Given Mabunda, was one of three
accused tried in the Thoyoyandou High Court on two charges of robbery
with aggravating
circumstances. He was convicted as charged and
sentenced to 15 years’ imprisonment on each count. As these
sentences were
not ordered to run concurrently to any extent, this
amounted to an effective sentence of 30 years’ imprisonment.
With the
leave of the high court, the appellant appeals to this court
solely against his sentence, leave to appeal against his conviction
having been refused.
[2] The charges brought against the appellant arose from
two incidents that occurred during the course of the night of 5 May
2004
at Mashau in the province of Limpopo. The first, which gave rise
to the first charge, took place at the home of Ms Rejoice Mudau
who
shared a house with her child and two elderly women described by her
as ‘grannies’. After having watched television
until
22h30 they were preparing for bed when three intruders, one of whom
was armed with a firearm, used an iron bar to break into
the house.
One of the intruders slapped Ms Mudau and ordered her to hand over
all her money if she did not want to die. She tried
to fob him off by
giving him a small amount of money she kept in a container on top of
a wardrobe, but he was not satisfied and
continued to threaten her
until she eventually took out R1500 she had hidden in a purse under
blankets in a cupboard. After this
the intruders left, leaving their
victims in tears. They took with them not only the cash I have
mentioned but also Ms Mudau’s
cellphone and its charger, as
well as her necklace, a pair of earrings, a mini hi-fi and a TV
aerial. Save for one earring and
the cash, the other items were later
recovered and returned by the police.
[3] The second incident, which formed the basis of the
second charge on which the appellant was prosecuted, took place later
that
night in the same area. It involved the theft of a number of
cellphones that were in the possession of Mr Humbulani Matari who
repaired cellphones for a living. As he did not have a workshop at
the time, Mr Matari used to store the cellphones in his possession
in
a box which he entrusted to a security guard, Mr Nkwaku Muloto, who
kept them overnight at the premises that he guarded. Later
on the
night in question three young men, one of whom was armed with a
firearm, arrived at the premises and held up Mr Muloto at
gunpoint.
He was forced to prostate himself on the ground and was told not to
do anything or else he would be killed. When pressed
to produce
either money or a firearm, he told his attackers that he had neither.
However, in a state of fear, he told them of the
box of cellphones
which they proceeded to take. Before they left, one of the robbers
expressed the desire to shoot Mr Muloto but
was dissuaded from doing
so by one of his companions. Having fired a shot into the air,
presumably to discourage pursuit, the robbers
then left. The value of
the stolen cellphones was alleged in the charge sheet to be in excess
of R6 000 although no evidence
was led to establish this.
[4] As appears from what I have said, both these
robberies were associated with aggravating circumstances in that the
complainants
were threatened with firearms. Unfortunately, violent
crime of this nature is endemic in this country and, in an attempt to
combat
offences of this nature, the legislature has provided a
prescribed minimum sentence of 15 years’ imprisonment for a
first
offender who commits the offence of robbery with aggravating
circumstances ─ see s 51(2)(
a
)(
i
) of the
Criminal
Law Amendment Act 105 of 1997
as read with
Part II
of Schedule 2 of
that Act. The court a quo was therefore obliged to impose at least
that sentence on each count unless there were
‘substantial and
compelling circumstances’ as envisaged by
s 53
of that Act
which justified a lesser sentence. It concluded that there were no
such circumstances and imposed the prescribed minimum
sentence on
each count; effectively a sentence of 30 years’ imprisonment.
[5] The appellant’s appeal against this sentence
was initially advanced on two legs. First, it was submitted that the
court
below had erred in finding that there were no substantial and
compelling circumstances justifying a lesser sentence. Secondly, it
was contended that even if the prescribed sentences should stand, the
failure to order them to run concurrently to any extent rendered
the
cumulative effect thereof shockingly inappropriate and too severe.
However when the matter was argued, counsel for the appellant
found
himself constrained to concede that there were no substantial and
compelling circumstances which justified a sentence less
than that
prescribed for each count, and limited his argument to the second
leg. In the light of the circumstances of the appellant,
the nature
of the crimes and the factors set out below, counsel’s
concession was correctly made.
[6] In arguing that the effective sentence of 30 years’
imprisonment was far too severe, it was stressed on the appellant’s
behalf that he had been a first offender, in his mid-twenties at the
time he committed the offences and that he had spent some
seven
months in detention before sentence had been imposed. These are
obviously relevant factors and were, indeed, taken into account
by
the court a quo in considering sentence. But on the other hand, there
are substantial aggravating features to be weighed in
the scales. The
two robberies were motivated by greed, were well planned and were
clearly not the product of a sudden decision
taken on the spur of the
moment, the two incidents having taken place at night some 25 km from
where the appellant lived. It is
also necessary to remember that the
victims were, with good reason, clearly terrified and feared for
their lives. In addition the
appellant and his companions physically
broke into the home of Mrs Mudau where they preyed upon three
defenceless women and a child.
People are entitled to feel safe in
their homes, and criminals who forcefully break into houses and
violate the dignity and well-being
of others by the threat of
violence should feel the full might of the law if apprehended. In
crimes like these, punishment and
deterrence are factors that come to
the fore in determining an appropriate sentence.
[7] On the other hand, 30 years’ imprisonment is
an extremely severe sentence. It is a sentence on a scale that should
be
reserved for those cases falling within the upper echelons of
severity. And while by their very nature all cases of robbery with
aggravating circumstances are severe, neither of these robberies was
associated with the level of gratuitous violence which is
unfortunately all too often the case. And although the victims were
clearly terrified of being shot, and Mr Mudau was slapped,
no further
physical violence was inflicted and no bodily injuries of any
severity suffered. Moreover the value of the items stolen,
relatively
speaking, was not great, and much was recovered.
[8] Consequently, despite the various aggravating
features that I have mentioned, neither robbery can be regarded as
falling into
the upper echelon of severity of crimes of this nature.
In the light of these factors, while the individual sentences are not
to
be interfered with, the effective sentence of 30 years’
imprisonment must be regarded as being shockingly inappropriate.
[9] As much as it is necessary both to punish the
appellant and attempt to deter others from similar crimes, the
effective sentence
is one that is likely to break rather than to
rehabilitate him. It would be wrong to sacrifice the appellant on the
altar of deterrence.
As was recently reaffirmed by this court, mercy
and not a sledgehammer is the concomitant of justice.
1
In my view, the interests of justice would be served by
ordering 12 years of the sentences imposed on each count to run
concurrently.
This will oblige the appellant to serve an effective 18
years’ imprisonment.
[10] The following order is made:
(a) The appeal succeeds to the extent only that it is
ordered that 12 of the 15 years’ imprisonment imposed in
respect of
count 2 are to run concurrently with the sentence of 15
years’ imprisonment imposed on count 1.
(b) The appeal is otherwise dismissed.
______________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: M Madima
Instructed by:
Thohoyandou Justice Centre
Thohoyandou
Bloemfontein Justice Centre
Bloemfontein
For Respondent: R J Makhera
Instructed by:
The Director of Public Prosecutions Thohoyandou
Director of Public Prosecutions
Bloemfontein
1
S
v Motswathuga
2012 (1) SACR 259
(SCA) para 8.