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[2013] ZASCA 51
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Zondo v S (627/12) [2013] ZASCA 51 (28 March 2013)
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 627/12
Not Reportable
In the matter between:
SIBONGUMUSA HENRY ZONDO
.................................................................
APPELLANT
and
THE STATE
.................................................................................................
RESPONDENT
Neutral citation:
Zondo v S
(627/12)
[2012] ZASCA 51
(28 March 2013)
Coram:
Maya, Shongwe, Leach
JJA et Swain, Mbha AJJA
Heard:
14 March 2013
Delivered:
28 March 2013
Summary: Criminal procedure - sentence –
imprisonment – cumulative effect of a sentence of a total of 39
years imprisonment
in respect of two separate convictions for robbery
committed with aggravating circumstances - sentence held to induce a
sense of
shock and reduced accordingly.
ORDER
On appeal from:
North Gauteng High Court,
Pretoria (Southwood et Patel JJ sitting as court of appeal):
(a) The appeal against sentence is upheld to the extent
indicated below.
(b) Paras 2 and 3 of the high court’s order are
set aside and are substituted with the following:
‘
2. The appeal is upheld in respect of the
sentence of 10 years’ imprisonment imposed in respect of the
convictions of attempted
murder. Such sentence is set aside and
substituted with a sentence of seven years’ imprisonment.
3. The sentence of seven years’ imprisonment
imposed for robbery with aggravating circumstances (count 1), and the
sentence
of 7 years’ imprisonment in respect of the nine
convictions for attempted murder (counts 4-12), are ordered to run
concurrently.’
JUDGMENT
MBHA AJA (MAYA, SHONGWE, LEACH JJA ET SWAIN AJA
CONCURRING)
[1] Arising out of a cash in transit heist and related
events more fully described below, the appellant was convicted in the
Secunda
Regional Magistrate Court (the trial court) on a count of
robbery with aggravating circumstances (count 1), a count of robbery
involving the theft by force of a motor vehicle (count 2), ten counts
of attempted murder (counts 3-12), one count of attempted
robbery of
another motor vehicle (count 13) and four counts of unlawful
possession of firearms consisting of rifles, handguns and
ammunition.
On 10 May 2002 he was sentenced to seven years’ imprisonment
for robbery with aggravating circumstances (count
1), three years’
imprisonment for robbery and attempted robbery (counts 2 and 13
having been taken together for purposes
of sentence), ten years’
imprisonment for the ten counts of attempted murder and five years
imprisonment for the four counts
of unlawful possession of firearms
and ammunition. It was ordered that the sentences imposed for the ten
counts of attempted murder
and unlawful possession of firearms and
ammunition should be served concurrently. Effectively, he was to
serve 20 years’
imprisonment.
[2] The appellant’s subsequent appeal to the North
Gauteng High Court, Pretoria (Southwood and Patel JJ), against both
the
conviction and sentence, was partially successful. That court
upheld the appeal against the convictions in respect of robbery
(count
2), one of the counts of attempted murder (count 3), the count
of attempted robbery (count 13) and counts of unlawful possession
of
firearms and ammunitions (counts 14-17). The sentence of seven years
imprisonment imposed in respect of count 1 was left unaltered.
However, the sentence of ten years’ imprisonment in respect of
the remaining convictions for attempted murder (counts 4-12)
was set
aside and substituted with a sentence of seven years’
imprisonment. In terms of s 282 of the Criminal Procedure Act
51 of
1977 (the Act), the altered sentence was antedated to 10 May 2002.
Effectively, the appellant was to serve 14 years’
imprisonment
from that date.
[3] This appeal, with leave of the court below, is
against the sentence only. The cumulative effect of the sentence of
14 years
imprisonment imposed by the high court, taken together with
the sentence of 25 years’ imprisonment which was imposed on the
appellant on 25 February 2000 in respect of an earlier conviction and
which he was already serving when he was tried by the trial
court,
resulted in him being obliged to serve a total sentence of 39 years
imprisonment. This the appellant argued, is shockingly
inappropriate.
[4] Before considering the issues for determination in
this appeal, it is necessary to briefly set out the factual
background of
the matter. The evidence led before the trial court
disclosed that on 2 December 1997, at the Secunda Business Centre,
the appellant,
then a police officer in the employ of the South
African Police Service holding the rank of constable, together with
about 14 other
men who were all armed with assault rifles and
handguns, robbed security officers of Khulani Springbok Patrols of
two boxes containing
an undisclosed amount of money and a .38 special
revolver. This robbery, which formed the basis of count 1 in the
charge sheet,
occurred as the security officers were leaving the
premises of United Bank after collecting the boxes. The perpetrators
fled in
two LDV vehicles. Numerous members of the police and traffic
officers chased the robbers, who then started firing back in order
to
avoid arrest. Consequently, at least one police officer and member of
the public sustained gunshot wounds. It is these shooting
incidents
which gave rise to the counts of attempted murder. The gang also
robbed one Burman Wessels Pretorius of his Nissan Maxima
and also
attempted to rob Solomon Nkosi of his employer’s Toyota
Conquest vehicle: the basis of counts 2 and 13 respectively.
The
State led the evidence of 27 witnesses, including that of one Richard
Khuzwayo, one of the perpetrators who later became the
State’s
main witness. As stated above, the appellant was subsequently
convicted on all 17 charges brought against him.
[5] After conviction and when the appellant was leading
evidence in mitigation, he brought it to the attention of the trial
court
that he was already serving a sentence of 25 years’
imprisonment for a robbery with aggravating circumstances committed
on
15 November 1998.
[6] In imposing a sentence of 20 years imprisonment, the
trial court appropriately considered the triad as espoused in
S
v Zinn.
1
Having found, rightly, that the
Criminal Law Amendment
Act 105 of 1997
was not applicable, (the Act only came into operation
on 1 May 1998) the trial court concluded that the aggravating
circumstances
far outweighed the mitigating factors, in particular
because the appellant was a police officer who was in a position of
trust
to the public; that the robbery was planned well in advance and
executed with military precision; firearms were used; and the
robbers,
instead of handing themselves over when confronted by the
police, chose to shoot back at their pursuers thus endangering the
lives
not only of the police but of members of the public as well.
[7] In my view, the trial court erred, however, in
omitting to consider the appellant’s request that whatever
sentence was
going to be imposed had to be ordered to run
concurrently with the sentence of 25 years’ imprisonment that
he was already
serving at the time. The high court erroneously
perpetuated this. It appears from its judgment in granting leave to
appeal that
the fact that the appellant was serving 25 years’
imprisonment was not drawn to its attention during argument and that
in
imposing the sentences that it did it took no account of the fact
that its sentence would lead to a cumulative effective sentence
of 39
years’ imprisonment.
[8] The appellant was 37 years old when he was sentenced
by the trial court, on 10 May 2007. This means that he will be 76
years
old by the time he completes serving his sentence. This appears
to have completely escaped the attention of the trial court when
it
imposed a sentence of 20 years’ imprisonment on him. The court
a quo also ignored this factor when it reduced that sentence
to 14
years’ imprisonment, but allowed it to run consecutively with
the sentence of 25 years’ imprisonment imposed
for the robbery
committed in November 1998. Counsel for the respondent conceded,
rightly, that 39 years’ imprisonment is
a long period of
incarceration and does, considering all the circumstances of the
case, induce a sense of shock.
[9] This court has repeatedly warned against excessively
long sentences being imposed by trial courts. In
S
v Mhlakaza
2
the court had to consider whether sentences of
imprisonment, which are cumulatively far in excess of 25 years, are
proper. Harms
JA, dealing with the element of deterrence, noted that
although it remained, according to judicial precedent, an important
consideration
when imposing sentence, its effectiveness in deterring
others from committing (similar) offences was unclear. He further
stated
that ‘(a)s far as deterring the accused is concerned, it
should be borne in mind that there is no reason to believe that the
deterrent effect of a prison sentence is
always
proportionate to its length’ before going on to
state that a lengthy term of imprisonment would serve none of the
purposes
of punishment and would simply serve to appease public
opinion. He pointed out, accordingly, that sentences of imprisonment
ought
to be realistic and should not be open to the interpretation
that they have been designed for public consumption.
3
See also:
S v Skenjana
1985
(3) SA 51
(A) at 55 C-D;
S v Siluale
1999
(2) SACR 102
(SCA) at 106g-107a;
S v Bull
;
S v Chavulla
2001 (2)
SACR 681
(SCA) para 22 and
S v Matlala
2003 (1) SACR 80
(SCA) para 7-3.
[10] The trial court and the court a quo misdirected
themselves in the manner demonstrated above, thus warranting this
court to
interfere with the sentence. I must, however, stress that
this must not in any way be construed to underplay or minimize the
gravity
and seriousness of the offences the appellant committed.
These were adequately highlighted by the trial court and I see no
need
to repeat what has already been said in this regard. I need also
mention that the other robbery in respect of which the appellant
was
sentenced to 25 years imprisonment was committed in November 1998
whilst he was out on bail after his arrest in connection
with this
case, on 3 February 1998.
[11] I am also wary of being seen to be creating an
unacceptable precedent that an accused person could go on a criminal
spree committing
separate instances of serious crimes, but
effectively being punished for only one of them. For this reason, I
am of the view that
ordering the two sentences to run concurrently in
their entirety would not only send out a wrong message. It would in
effect defeat
the purpose of adequately punishing the appellant for
his conduct. At the same time, the approach I intend adopting in
correcting
the misdirection by both the trial and the court a quo
will go a long way to assuage the cumulative effect of a 39 years
period
of imprisonment imposed on the appellant.
[12] As I have mentioned above, the court a quo left
unaltered the sentence of seven years for robbery with aggravating
circumstances
and imposed a further seven years’ imprisonment
for all the counts of attempted murders taken together. I am of the
view
that those sentences are, in the circumstances of the case,
justified. Nevertheless, I will order that they run concurrently. The
appellant will effectively serve seven years’ imprisonment, but
this sentence shall run after the sentence of 25 years’
imprisonment imposed in February 2000.
[13] Two further aspects need to be addressed. First, in
para 2 of its order the high court erred by referring to 10 counts of
attempted
murder for which a sentence of seven years’
imprisonment was imposed. In the light of the appellant’s
successful appeal
in regard to his conviction on count 3, there are
in fact only nine counts of attempted murder in respect of which he
has been
convicted. This error can be corrected in our order below.
[14] Secondly, and more importantly, in para 3 of its
order the high court, acting under
s 282
of the
Criminal Procedure
Act, antedated
the sentences it imposed to 10 May 2002 being the date
sentence had been imposed by the trial court. Given that the
appellant was
already serving his sentence of 25 years’
imprisonment at that time, a fact which had escaped the high court,
its direction
in that regard is both meaningless and inappropriate
and should be set aside.
[15] In the result, the following order is made:
(a) The appeal against sentence is upheld to the extent
indicated below.
(b) Paras 2 and 3 of the high court’s order are
set aside and are substituted with the following:
‘
2. The appeal is upheld in respect of the
sentence of 10 years’ imprisonment imposed in respect of the
convictions of attempted
murder. Such sentence is set aside and
substituted with a sentence of seven years’ imprisonment.
3. The sentence of seven years’ imprisonment
imposed for robbery with aggravating circumstances (count 1), and the
sentence
of 7 years’ imprisonment in respect of the nine
convictions for attempted murder (counts 4-12), are ordered to run
concurrently.’
B H MBHA
ACTING JUDGE OF APPEAL
APEARANCES:
FOR APPELLANT: IN PERSON
FOR RESPONDENT: J. J. KOTZE
Instructed by:
The National Director of Public Prosecutions, Pretoria
The National Director of Public Prosecutions,
Bloemfontein
1
S
v Zinn
1969 (2) SA 537
(A).
2
1997
(1) SACR 515
SCA at 519 g.
3
At
524 a.