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[2013] ZASCA 31
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Radebe and Another v S (726/12) [2013] ZASCA 31; 2013 (2) SACR 165 (SCA) (27 March 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 726/12
Reportable
In the matter between:
Sandile Patrick Radebe
.................................................................
FIRST
APPELLANT
Sello Radebe
.............................................................................
SECOND
APPELLANT
and
The State
................................................................................................
RESPONDENT
Neutral citation:
Radebe
v S
(726/12)
[2013] ZASCA 31
(27 March 2013)
Coram
: Lewis and Leach JJA and
Erasmus AJA
Heard: 12 March 2013
Delivered: 27 March 2013
Summary:
When determining an
appropriate sentence of imprisonment, the period spent by an accused
in detention while awaiting trial, conviction
and sentence should not
be assessed mechanically in reducing the period of imprisonment to be
imposed. Appeal against sentences
for robbery with aggravating
circumstances dismissed.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
North Gauteng
High Court, Pretoria (Southwood J and Makgoka AJ sitting as court of
appeal):
The appeal is dismissed.
JUDGMENT
___________________________________________________________________
LEWIS JA ( LEACH JA AND ERASMUS AJA
CONCURRING):
[1] The two appellants in this matter
were convicted in the Vereeniging Regional Court on three counts of
robbery with aggravating
circumstances, one count of contravening s 3
of the Firearms Control Act 60 of 2000 (the unlawful possession of
four firearms)
and one count of contravening s 90 of that Act (the
unlawful possession of 43 rounds of ammunition). They were sentenced
to 15
years’ imprisonment on each count of robbery, the
sentences to be served concurrently. The first appellant was
sentenced
in addition to four years’ imprisonment on the charge
of unlawful possession of firearms and one year in respect of the
unlawful
possession of ammunition. The second appellant was sentenced
to six years’ imprisonment on the charge of unlawful possession
of firearms, the additional two years imposed because he had a recent
previous conviction for such possession. Like the first appellant
he
was also sentenced to a year’s imprisonment for the unlawful
possession of ammunition.
[2] They appealed against both
convictions and sentences to the North Gauteng High Court (Southwood
J and Makgoka AJ). That court
set aside two of the convictions of
robbery, but confirmed the sentences on the other counts. The first
appellant was thus sentenced
to an effective period of 20 years of
imprisonment and the second appellant to an effective 22 years of
imprisonment. The high
court gave leave to appeal against their
sentences to this court on the basis that it had not taken into
account the period (some
two years and four months) that the
appellants had spent in prison while awaiting trial. Southwood J
said, in granting the application
for leave to appeal:
‘
It
is arguable that a period of two years in detention awaiting trial
constitute substantial and compelling circumstances warranting
a
lighter sentence than the prescribed minimum, but it seems clear that
that period of detention should have been taken into account
by the
court
a
quo
when
imposing sentence for the other charges.’
[3] Before I turn to this issue I
shall describe the robbery and its aftermath briefly. On an evening
in May 2004 the three complainants,
a husband and wife, Mr and Mrs
Henning, and the wife’s brother, Mr Bester, were robbed of a
Browning 90mm pistol with a wooden
grip, cellphones, and jewellery.
The Hennings were at home in Vereeninging when the robbers gained
entry to their house. The robbers
held the Hennings at gunpoint. Mr
Henning, having been in the bath when the men entered the house, was
naked. He was repeatedly
kicked in the kidneys.
[4] While the robbers ransacked the
house searching for items to steal, Mr Bester arrived to visit the
Hennings. One robber accompanied
Mrs Henning to the gate to let Mr
Bester in, and then proceeded to steal items from him as well. There
is no doubt that the entire
experience was frightening and
distressing for all three complainants. The robbers accosted a couple
in their home, threatened
them with death, and one of them kicked Mr
Henning. At the time of the trial Mrs Henning in particular was still
traumatised, observed
the regional magistrate.
[5] A week after the robbery the
investigating officer assigned to investigate the robbery, acting on
information from an informant,
together with two other police
officers, found the appellants and a third man (who is not a party to
this appeal) at an address
given to him. They searched the house and
found four firearms, including Mr Henning’s Browning pistol.
They also found 43
rounds of ammunition, cellphones and a man’s
watch. The cellphones were those of Mr Henning and Mr Bester. A
bangle stolen
from Mrs Henning was also in their possession. The
three men were arrested.
[6] The suspects made statements about
their whereabouts at the time of the robbery, and admitted to having
acquired the cellphones
about a week prior to their arrest. Their
statements were admitted into evidence after a trial within a trial.
Two of the robbers
were also identified by the complainants at an
identification parade shortly after the arrest.
[7] The high court, on appeal,
considered that the explanation of the appellants about their
possession of the cellphones –
that the police had ‘planted’
the evidence in the house in which they were living – was
correctly rejected as
improbable. And the high court considered that
the appellants had been poor witnesses, their evidence in the trial
within the trial
also being correctly rejected. As I have said, the
high court confirmed the convictions on one count of robbery each,
and on the
counts of unlawful possession of firearms and ammunition.
In that court the State conceded that the three convictions for
robbery,
on the basis that there were three complainants robbed, were
unsustainable.
[8] Hence leave to appeal against
their convictions was refused. But leave to appeal against their
sentences was granted on the
basis referred to earlier. The principal
argument against the effective sentences on the charges of robbery
and unlawful possession
of firearms and ammunition (20 and 22 years’
imprisonment respectively), in appeal before this court, was that the
trial
court, as well as the high court on appeal, did not take into
account the two years and four months of detention undergone by the
appellants before conviction.
[9] As Southwood J said, in the high
court, this argument was not raised before that court on appeal. It
was, however, considered
by the regional magistrate when he imposed
sentence. He said:
‘
Julle
is al ‘n hele ruk in hegtenis, hoofsaaklik weens julle eie
toedoen. ‘n Voorbeeld daarvan is die binneverhoor,
wat die saak
baie uitgerek het en waar dit toe geblyk het; waar julle aanvanlik
gesê het julle het die verklaring gemaak
met onbehoorlike
beïnvloeding, julle van plan verander het, later gesê het
julle het nie so ‘n verklaring gemaak
het nie. Julle kan dus
niemand behalwe julleself blameer vir die lang tydsverloop, wat julle
in hegtenis was nie. As gekyk word
na die aard en omvang van die
vonnisse, dan is dit so dat hierdie kumulatiewe effek, indien julle
vonnisse afsonderlik moet uitdien,
baie swaar sal wees. Die Hof sal
dit dan ook in ag neem, by vonnisoplegging. Ten opsigte van die besit
van vuurwapens en ammunisie,
moet die Hof in ag neem dat dit nie net
1 vuurwapen was nie; dit was verskeie vuurwapens, dit was ‘n
groot aantal ammunisie
wat julle hier besit het en dit op sigself –
43 rondtes, kan julle ‘n oorloggie mee gaan uitvoer het.’
[10] The regional magistrate took into
account as well that the second accused (the second appellant in this
appeal) had a previous
conviction for unlawful possession of a
firearm and ammunition and the first accused (the first appellant) a
previous conviction
for theft.
[11] The appellants now argue that in
reconsidering the sentences we should take into account the period of
two years and four months
awaiting the completion of the trial. They
rely on
S v Brophy
2007 (2) SACR 56
(W) in this regard. There
Schwartzman J held that the rule of thumb in determining an
appropriate sentence should be to take into
account the period in
detention awaiting the completion of the trial and double it. That
double period should be deducted from
the period of imprisonment
proposed when sentencing. The learned judge differed in this regard
from an earlier decision of the
same court in
S v Vilikazi
2000
(1) SACR 140
(W) at 148
a-e
. In that case Goldstein J
said:
‘
In
this regard I do not overlook the
dictum
of
Schutz J (as he then was) in
S
v Stephen and Another . . . .
[1994
(2) SACR 163
(W)]. I am not aware of this
dictum
having
been universally followed in our courts. It is also not clear to what
extent the learned Judge applied the Canadian rule.
I think too with
respect that it is unsafe to rely on Canadian authority which may
well be grounded in the special circumstances
of that country. (The
report of
Gravino
quoted
in
Stephen’s
judgment
is not that of a reasoned judgment, but in a few lines records the
facts of the case and a comment of Montgomery J that
“it is a
recognised ‘rule of thumb’ that imprisonment while
awaiting trial is the equivalent of a sentence of
twice that length”.
No reasons are given for the rule.) Imprisonment in our country,
whether awaiting trial or after sentence,
constitutes, as no doubt it
always has done here, a far-reaching and all-encompassing deprivation
of liberty and subjects the prisoner
in many if not all cases to
boredom, indignity, loneliness, danger, lack of privacy and quite
profound suffering and loss. . .
I would be loathe in the absence of
clear evidence to decide that the miseries of the awaiting-trial
period are more oppressive
than those of the post-sentence ones.’
[12] Schwartzman J in
Brophy
considered otherwise. He said (para 18):
‘
There
is no evidence before this Court detailing the living conditions of
awaiting-trial prisoners, who are presumed to be innocent
and who are
first offenders. What does not require evidence is that time spent in
prison awaiting trial is, at the very least,
equivalent to time
served without remission. In addition, such prisoners do not get the
benefit of any presidential pardon. What
cannot be disputed is that
the lot of the awaiting-trial prisoner is harsher than that of a
sentenced prisoner in that he or she
cannot participate in the
programmes that a prison may run. What he or she is condemned to is a
seemingly endless routine of boredom
in the course of which he or she
cannot earn any privileges for which serving prisoners can qualify by
reason of good conduct.
Judicial cognisance can also be taken of the
gross overcrowding in prisons housing awaiting-trial prisoners.’
The learned judge continued (para 19):
‘
There
is no science from which it can be determined that such conditions
are equivalent to double or treble or less than double
time served.
Taking all conditions into account – and there are probably
others that may be found in some prisons –
and notwithstanding
the reservations expressed by Goldstein J, I am satisfied that the
ratio
in
the
Stephen
case
ought to be followed.’
[13] In my view there should be no
rule of thumb in respect of the calculation of the weight to be given
to the period spent by
an accused awaiting trial. (See also
S v
Seboko
2009 (2) SACR 573
(NCK) para 22). A mechanical formula to
determine the extent to which the proposed sentence should be
reduced, by reason of the
period of detention prior to conviction, is
unhelpful. The circumstances of an individual accused must be
assessed in each case
in determining the extent to which the sentence
proposed should be reduced. (It should be noted that this court left
open the question
of how to approach the matter in
S v Dlamini
2012 (2) SACR 1
(SCA) para 41.)
[14] A better approach, in my view, is
that the period in detention pre-sentencing is but one of the factors
that should be taken
into account in determining whether the
effective period of imprisonment to be imposed is justified: whether
it is proportionate
to the crime committed. Such an approach would
take into account the conditions affecting the accused in detention
and the reason
for a prolonged period of detention. And accordingly,
in determining, in respect of the charge of robbery with aggravating
circumstances,
whether substantial and compelling circumstances
warrant a lesser sentence than that prescribed by the Criminal Law
Amendment Act
105 of 1997 (15 years’ imprisonment for robbery),
the test is not whether on its own that period of detention
constitutes
a substantial or compelling circumstance, but whether the
effective sentence proposed is proportionate to the crime or crimes
committed:
whether the sentence in all the circumstances, including
the period spent in detention prior to conviction and sentencing, is
a
just one.
[15] That general principle was
expressed, first, in relation to the way to assess whether
substantial and compelling circumstances
exist where a minimum
sentence has been prescribed by the
Criminal Law Amendment Act, in
S
v Malgas
2001 (2) SA 1222
;
2001 (1) SACR 469
(SCA) where Marais
JA said (para 25):
‘
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.’
That approach was endorsed by the
Constitutional Court in
S v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
;
2001 (1)
SACR 594
(CC). More recently, in
S v Vilakazi
2012 (6) SA 353
;
2009 (1) SACR 552
(SCA) this court explained that particular factors,
whether aggravating or mitigating, should not be taken individually
and in
isolation as substantial or compelling circumstances. Nugent
JA said (para 15):
‘
It
is clear from the terms in which the test was framed in
Malgas
and
endorsed in
Dodo
that
it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all
the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence.’
[16] I am satisfied that the
prescribed sentence of 15 years’ imprisonment is fully
justified in respect of the robbery committed
by both appellants. The
robbery was planned; firearms were used; Mr Henning was assaulted,
and held naked at gunpoint; all three
complainants were held at
gunpoint during the course of the robbery; the complainants were
deeply distressed during and after the
robbery; and a firearm was
stolen, as were jewellery and cellphones. The first appellant had a
previous conviction for theft (a
competent verdict on a charge of
robbery) and the second appellant was convicted only three months
before the commission of the
offences in issue on charges of unlawful
possession of a firearm and ammunition.
[17] In so far as the sentences in
respect of the charges of unlawful possession of firearms and
ammunition are concerned, I consider
that these too are fully
justified. The appellants were in unlawful possession of four
firearms, one of them stolen from the Hennings,
and 43 rounds of
ammunition, a considerable armoury, as pointed out by the regional
magistrate. And, as I have said, both appellants
had previous
convictions, the first for theft and the second for unlawful
possession of a firearm and ammunition.
[18] The additional five and seven
years’ imposed on them respectively do not induce a sense of
shock. It is so that the appellants
spent two years and four months
in detention before they were convicted. That must of course be taken
into account. But in my view
this factor does not outweigh the
aggravating circumstances attendant on the crimes committed. As
pointed out by counsel for the
State, detention for some of that
period was the result of the appellants insisting on private legal
representation although they
did not have the ability to pay for it;
and by the changing of their versions during the course of the trial
such that a trial
within a trial had to be held. As the regional
magistrate said, they had only themselves to blame for the lengthy
period over which
the trial was conducted.
[19] The appellants also argued that
the regional magistrate did not take the lead in enquiring about the
personal circumstances
of the appellants before imposing sentence.
This argument is not convincing. The appellants were represented by
counsel, who described
their personal circumstances and did not draw
anything of consequence to the attention of the court other than
their age and the
number of dependants each had. In the circumstances
of this case none was mitigating and the regional court considered
all the
factors relevant to sentence.
[20] There is no reason to interfere
with the sentences imposed by the regional magistrate and confirmed
by the high court. The
appeal is dismissed.
______________
C H Lewis
Judge of Appeal
APPEARANCES
For Appellant: H H Moeng
Instructed by:
Johannesburg Justice Centre,
Marshalltown.
Bloemfontein Justice Centre,
Bloemfontein
For Respondent: MNC Menigo
Instructed by:
Director of Public Prosecutions,
Johannesburg.
Director of Public Prosecutions,
Bloemfontein