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[2010] ZAWCHC 431
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S v Maselani and Another (SS23/2009) [2010] ZAWCHC 431 (29 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
SS23/2009
DATE
:
29
JULY 2010
In
the matter between:
THE
STATE
and
VUYANI
MASELANI
PATRICK
MGESI
SENTENCE
KOEN,
AJ
Mr
Maselani and Mr Mgesi have been convicted of the offence
of
robbery with aggravating circumstances. If we turn to section 51(2)
of the Criminal Law & Procedure Act, I am required, if
I am not
satisfied that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence, to impose
upon them a
sentence of imprisonment for a period of not less than 15 years.
The
proper approach which I must adopt was authoritatively set out in the
case of
S
v Malqas
2001(2) SA 1222 (SCA). In essence, whilst all factors traditionally
taken into account in sentencing, continue to play a role (about
which I will say more shortly), I am nonetheless required to be aware
that the legislature has intended that the prescribed minimum
sentence should "ordinarily and in the absence of weighty
justification be imposed" (See reference
Malqas
at 1235g-h).
In
Malqas
the Court went on to say that:
"The
specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the
offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying
the legislation
and marginal differences in personal circumstances or
degrees of participation between co-offenders,
are to be
excluded,”
(at 1235i).
Furthermore,
in the words used by the SCA in
Malqas
I:
Am
entitled to impose a lesser sentence only if, on a consideration of
the circumstances of the case, I am satisfied that the prescribed
sentence is unjust in that it would be disproportionate to the crime,
the criminal and the needs of society."
I
must, therefore bear in mind that I am not compelled to perpetrate
injustice by imposing a sentence that is disproportionate to
the
particular offence and that this inquiry entails a consideration of
every material circumstance in the case. (See
S
v Vilakazi
[2008] ZASCA 87
at 20). I do not propose to deal at any length with
the duties of a sentencing court imposed by the case of
S
v Zinn
1969(2) SA 537 (A). These are well known and it is trite that I am
required "to consider and to try to balance evenly the
nature
and circumstances of the offence, the characteristics of
the offender and his circumstances and the impact of
the crime on
the
community, its welfare and concern". (Per
Freedman
J in
S
v Banda & Others
1991(2) SA 352 (B) at 355A-C).
Malqas
makes it clear that all of these factors still play a vital and
important role in the exercise of sentencing discretion. Robbery
with
aggravating circumstances is undoubtedly a serious crime. In this
case the deceased, who was only 19 years old, was set upon
by three
men at her place of work. She had been singing whilst working in the
moments preceding the attack upon her. She was
a soft target,
outnumbered by the three and defenceless. She was subdued by force
and her hands were bound behind her back. The
medical evidence
revealed that her mouth had probably been blocked to prevent her from
screaming. Her death did not come about
quickly and it is plain from
the evidence of Dr Van Der Reyde that she must have suffered greatly
whilst being strangled. Her last
moments on this earth can only have
been characterised by abject fear and terror. The premises where she
worked were then plundered
and goods to the approximate value of R60
000, according to the evidence of Ms Lerwill, were stolen.
Mr
Maselani testified during the trial that he was remorseful and I am
prepared to accept that this is so. Further evidence led
in
mitigation revealed that he is married and gainfully employed and
that he contributes to the support of two children who live,
at the
present, with an ageing grandmother. Mr Maselani's wife, who
testified on his behalf in mitigation, told the Court that
she would
take care of his children should their grandmother be unable to do
so. I also accept that at the time of the offence.
Mr Maselani was
unemployed and that
financial
desperation, born out of poverty, probably played a role in his
decision to commit the defence.
Mr
Maselani's wife also testified that he is now a religious person, and
he has since November 2007 assisted those in need where
he is able to
do so. During argument, counsel for Mr Maselani placed considerable
emphasis on the fact that Mr Maselani has two
young children, who are
presently in the care of their aged grandmother, a situation which at
some stage in the not too distant
future will come to an end.
Although Mr Maselani's wife testified that when the children's
grandmother becomes unable to take care
of the children, then she
would do so, counsel was at pains to point out that there would be no
legal obligation on her in this
respect.
I
was referred to the case of
S
v M
2008(3) SA 232 (CC), where the proper approach of a sentencing court,
where the convicted person is the primary caregiver of minor
children, was authoritatively set out. In
S
v M
,
Sachs
,
J described a primary caregiver as "the person with whom the
child lives and who performs every day tasks like ensuring that
the
child is fed and looked after and that the child attends school
regularly", (at para 28 of the judgment). It is clear
in my view
from the evidence, that Mr Maselani is not a primary caregiver in the
sense meant in
S
v M
.
The children's grandmother is and when she is no longer able to be
such, Mr Maselani's wife will take over that role.
This
does not mean, of course, that the fact that Mr Maselani has children
to whose support he contributes, must be left out of
account. It
means only that I am fortunately exempted from the difficult inquiry
whether it is necessary to take steps to ensure
that Mr Maselani's
children will be cared for properly, should I decide that a custodial
sentence is appropriate. I am satisfied
on the evidence that they
will be cared for properly in this event.
It
was also submitted by counsel for Mr Maselani that it should be taken
into account that he pleaded guilty to robbery and that
he had
testified honestly. This is plainly correct and these factors must
and do inform my decision concerning an appropriate sentence.
It is
necessary finally, to mention at this stage that during the period
1989 to 1996, Mr Maselani was convicted of theft, for
which a
sentence of caning was imposed; robbery for which a sentence of 12
months imprisonment was imposed; theft for which a period
of three
and a half years imprisonment was imposed, of which one year was
suspended on conditions, and possession of presumably
stolen property
for which a period three years imprisonment was imposed. Given that
these offences were committed considerably
more than ten years ago, I
do not regard them to be aggravating factors.
Mr
Mgesi testified in mitigation of sentence. I accept from his evidence
that he too is remorseful about his role in the commission
of the
offence. Mr Mgesi has three children, whom he helps to support from a
grant he receives on account of illness and incapacity.
He is HIV
positive, suffers from blackouts as a result of a head injury and
suffers from asthma. He receives medication to treat
these conditions
from the day hospital at Delft. Mr Mgesi has also spent 14 of the
months which have elapsed since the offence
in custody, but this
arose for reasons unrelated to this matter as I understood the
evidence and I do not think that it is a factor
to which considerable
weight should be attached.
As
is the case with Mr Maselani, I accept that Mr Mgesi was unemployed
at the time of the offence and that financial desperation,
born out
of poverty, probably played a role in motivating his conduct. In
argument on his behalf, much was made of Mr Mgesi's poor
state of
health. In my view, however, it is possible for the treatment he
presently receives to be continued, should he be incarcerated.
There
is no evidence to the contrary. Mr Mgesi has a caring father, who
testified on his behalf in mitigation and I have no reason
to think
that his father would not see to it that he receives his medication
or that steps are taken to ensure that the prison
authorities supply
the necessary medication if it turns out that they fail in this duty.
Mr Mgesi has two previous convictions.
One for theft in 1991, which
resulted in a sentence of imprisonment for four years and another for
housebreaking in 1990 in regard
he was sentenced to imprisonment for
30 months. Because these offences were committed almost 20 years ago,
I do not consider them
to be aggravating factors.
Counsel
for both Mr Maselani and Mr Mgesi submitted that I ought to take into
account that neither had intended that harm should
come to the
deceased and that this was, to use the words used in argument, a
robbery gone terribly wrong. I do not think that it
is correct to say
that neither had intended that the deceased be harmed. I do not think
that there is any question from the evidence
that Mr Maselani and Mr
Mgesi both participated in subduing the deceased by force. She had
been deliberately and intentionally
set upon and forcibly overwhelmed
by her three assailants. I think it is self-evident that harm was
intended and done when she
was attacked in this manner.
I
accept in favour of Mr Maselani and Mr Mgesi that the decision to
enter the premises and commit robbery was not long in the planning,
although it was undoubtedly, in my view, premeditated. But although
it was not long in the planning, it remains a fact that when
the
opportunity to rob a defenceless victim presented itself, it was
seized upon without hesitation and carried out ruthlessly
with no regard for the consequences. In doing so, the life
of a young woman came to an end. This notwithstanding,
it is clear
from the evidence as a whole that the crime was more one of
opportunity and that the terrible consequence which ensued,
namely
the death of the deceased, was not something which either Mr Maselani
or Mr Mgesi had contemplated or foreseen.
As
stated above, it is true that there is no evidence to suggest that
the death of the deceased was an intended or foreseen result
of the
attack upon her. In essence this is the reason why Mr Maselani and Mr
Mgesi were acquitted on the charge of murder. This
factor, as I see
it, has limited bearing on the charge of which they have been
convicted. In the event, the harm which eventuated,
the death of the
deceased by strangulation, was considerable. It may not have been
intended, but I do not think that this is a
factor which is so
weighty that it impels the conclusion that the prescribed minimum
sentence is disproportionate to the offence.
It
must be remembered that even the threat of grievous bodily harm
during a robbery, may result in a conviction. It follows that
actual
harm is not a necessary prerequisite for conviction. Yet parliament
intended, when it enacted the minimum sentence legislation,
that even
a robbery involving only a threat of grievous bodily harm is
robbery with aggravating circumstances and
that a conviction for
this offence triggers the application of the minimum sentence
legislation. I cannot ignore this obvious indication
of the
seriousness with which parliament viewed the offence of robbery with
aggravating circumstances.
The
question which now arises is whether the facts and circumstances I
have outlined above, can be said to include in my judgment,
anything
substantial or compelling, warranting the imposition of a sentence
less than the prescribed minimum. It is undoubtedly
true that a
custodial sentence of least 15 years will impact considerably, not
only upon Mr Maselani and Mr Mgesi, but also upon
their children and
their families. But it is an inescapable reality that the offence
they committed has played a role in adversely
affecting many persons
lives. The deceased's family is an obvious example. The family of Ms
Lerwill, on whose premises the offence
took place and whose children
were severely traumatised and indirectly all of society who fear that
they might become the victims
of crime, is reinforced by the sad fact
that it happens all too often.
In
regard to Mr Maselani and Mr Mgesi, after careful and anxious
thought, I have taken the view that no substantial and compelling
reasons exist which justify my departing from the prescribed minimum
sentences. No "weighty justification", to use
the
expression adopted by the SCA in
Malgas
to depart from this minimum sentence in my judgment, exists.
The
next question which arises is what is an appropriate sentence, regard
being had that a penalty of not less than 15 years must
be imposed.
Counsel for the State has submitted that a sentence of 15 years
imprisonment must be imposed. After consideration I
have come to the
conclusion that a sentence of 15 years is not disproportionate,
bearing in mind the severity of the crime, the
personal circumstances
of both Mr Maselani and Mr Mgesi as outlined above, and the interests
of society. In the circumstances I
am bound to impose the following
sentences:
1.
Mr Maselani you are sentenced to
15
(FIFTEEN) YEARS IMPRISONMENT
.
2.
Mr Mgesi you also are sentenced to
15
(FIFTEEN) YEARS IMPRISONMENT.
KOEN,
AJ