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[2010] ZAWCHC 141
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S v Doty (A143/2010) [2010] ZAWCHC 141 (19 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
CASE
NO: A143/2010
In
the appeal of:
LORENZO
DOTY
Appellant
vs
THE
STATE
Respondent
JUDGMENT: 19
AUGUST 2010
NGEWU,
AJ
:
[1]
The appellant was convicted of one count of robbery with aggravating
circumstances in the regional court, Vredenburg, and
was sentenced
to 15 years' imprisonment. With the leave of the court
a
quo
he
now appeals against the sentence only.
[2]
The charge had been read with the provisions of section 51 of the
Criminal Law Amendment Act, ("the Act"), which
prescribes
a minimum sentence of 15 years to be imposed on first offenders for
such robbery upon conviction. The trial court
found that there were
no substantial and compelling circumstances warranting deviation
from the prescribed sentence and proceeded
to impose a sentence of
15 years direct imprisonment.
[3]
The state's evidence was briefly that on 9 January 2006 the
complainant was working at Fred's Discount Store as a cashier.
At
about 2 o'clock in the afternoon the appellant entered the shop and
asked for the price of cinnamon. He said he wanted to
buy it but did
not have money and stepped outside to wait for the child to give him
money. It was quiet in the shop. Complainant
was restless as the
manner in which the appellant carried himself and addressed her was
domineering. Appellant came in again
asking for water. Complainant
told him she could not leave the shop. He went out again. He came
back again with his hands in
the pocket. He then took out a firearm
and loaded it and pointed it at the complainant and demanded money
or complainant's life.
He demanded only bank notes. Complainant put
the money on the till. Appellant took it and ran away. Complainant
then got a chance
to press the panic button. The amount stolen was
R400.00. As a result of the incident complainant suffered nightmares
and was
traumatized by the incident.
[4]
The following grounds of appeal were raised on behalf of the
appellant:
(i)
The
court
a
quo
misdirected
itself by not finding that the personal circumstances of the
appellant amounted to substantial and compelling circumstances.
(ii)
The
court
a
quo
misdirected
itself by over-emphasizing the seriousness of the offence.
(iii)
The
court
a
quo
misdirected
itself by over-emphasizing the appellant's previous convictions.
(iv)
The
court
a
quo
failed
to consider alternative forms of sentencing of which correctional
supervision would have been the most appropriate.
(v)
Appellant
has two minor children. Their interest is paramount and being
deprived of their father will have a serious psychological
impact on
them.
[5]
It is trite that the Act demands the imposition of the prescribed
minimum sentence unless the Court is satisfied in a particular
case
that there are substantial and compelling circumstances that justify
the imposition of a lesser sentence. It is the duty
of the
sentencing Courts to determine whether or not the circumstances of
any particular case are such as to justify a departure.
However, in
doing so, they are to respect, and not only pay lip-service to, the
Legislatures' view that the prescribed periods
of imprisonment are
to be taken to be ordinarily appropriate when crimes of a specific
kind are committed. (See
S
v
Vilakazi
2009(1) SACR 552 SCA
).
[6]
In S v
Malgas
2001 (1) SACR 469
(SCA) Marais JA
interpreted
the concept substantial and compelling circumstances as follows:
A.
Section
51 has limited but not eliminated the courts' discretion in imposing
sentence in respect of offences referred to in Part
I of Schedule 2
(or imprisonment for other specified periods for offences listed in
other parts of Schedule 2).
B.
Courts
are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment) as the sentence that should
ordinarily and in the absence of weighty justification
be imposed
for the listed crimes in the specified circumstances.
C.
Unless
there are, and can be seen to be, truly convincing reasons for a
different response, the crimes in question are therefore
required to
elicit a severe, standardised and consistent response from the
courts.
D.
The
legislature has however deliberately left it to the courts to decide
whether the circumstances of any particular case call
for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime and
the need
for effective sanctions against it, this does not mean that all
other considerations are to be ignored
E.
All
factors (other than those set out in D above) traditionally taken
into account in sentencing (whether or not they diminish
moral
guilt) thus continue to play a role; none is excluded at the outset
from consideration in the sentencing process.
F.
The
ultimate impact of all the circumstances relevant to sentencing must
be measured against the composite yardstick substantial
and
compelling') and must be such as cumulatively justify a departure
from the standardised response that the Legislature has
ordained.
G.
In
applying the statutory provisions, it is inappropriately
constricting to use the concepts developed in dealing with appeals
against sentence as the sole criterion.
H.
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.
I
.
In so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment
and that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed paying due regard to the bench mark
which the
legislature has provided.
[7]
It is not for the courts to simply impose the prescribed minimum
sentence without probing into circumstances relevant to the
offence
at hand. Judicial officers are required to reflect on the sentences
they should impose. It is incumbent upon a court
in every case,
before it imposes the prescribed sentence, to assess upon a
consideration of all the circumstances of a particular
case, whether
it is indeed proportionate to the particular offence. Robberies vary
widely in terms of their nature, their consequences,
the items
stolen, the mode of commission, the degree of violence used, the
nature and extent of injuries inflicted on the victims
and the
impact they have on the victims and their families.
[8]
A prescribed sentence cannot be assumed
a
priori
to
be proportionate in a particular case. It cannot be assumed
a
priori
that
the sentence is constitutionally permitted. Whether the prescribed
sentence is indeed proportionate and capable of being
imposed, is a
matter to be determined upon a consideration of the circumstances of
a particular case. It ought to be apparent
that when the matter is
approached in that way it might turn out that the prescribed
sentence is seldom imposed in cases that
fall within the specified
category. If that occurs it will be because the prescribed sentence
is seldom proportionate to the
offence. For the essence of
Malgas
and
Dodo
is
that disproportionate sentences are not to be imposed and that
courts are not vehicles for injustice. (See
S
v
Vilakazi
above.)
[9]
In
the words of Ackerman J in
S
v
Dodo 2001(1)
SACR
594
(CC)
at [37] and [38]
"the
concept of proportionality goes to the heart of the inquiry as to
whether punishment is cruel, inhuman or degrading
particularly
where, as here, it is almost exclusively the length of time for
which an offender is sentenced that is in issue.
... The cause
justifying penal incarceration and thus the deprivation of the
offender's freedom is the offence committed. "Offence"
consists of all the factors relevant to the nature and seriousness
of the criminal act itself, as well as all relevant personal
and
other circumstances relating to the offender which could have a
bearing on the seriousness of the offence and the culpability
of the
offender. In order to justify the deprivation of an offender's
freedom it must be shown that it is reasonably necessary
to curb the
offence and punish the offender. The length of punishment must be
proportionate to the offence. To attempt to justify
any period of
penal incarceration without inquiring into the proportionality
between the offence and the period of imprisonment
is to ignore, if
not to deny, that which lies at the very heart of human dignity.
Human beings are not commodities to which a
price can be attached
They are creatures with inherent and intimate worth; they ought to
be treated as ends in themselves, never
merely as means to an end.
Where the length of a sentence, which has been imposed because of
its general deterrent effect on
others, bears no relation to the
gravity of the offence, the offender is being used essentially as a
means to another end and
the offender's dignity assailed. ... mere
disproportionate between the offence and the period of imprisonment
would also tend
to treat the offender as a means to an end, thereby
denying the offender's humanity."
[10]
In S
v
Malgas
it
was held that the determinative test for deciding whether a
prescribed sentence may be departed from, makes plain that the
power
of the court to impose a lesser sentence... can be exercised well
before the disproportionally between the mandated sentence
and the
nature of the offence become so great that it can be typified as
gross [and thus constitutionally offensive].
[11]
Incongruous and disproportionate sentences can only be avoided if
the courts approach sentencing under the Act in the manner
that was
laid down in
S
v
Malgas
and
subsequently approved in
S
v
Dodo
.
(See
S v
Vilakazi
above.)
[12]
The following are aggravating circumstances:
(i)
A
firearm was used in the commission of the offence. The appellant
loaded the firearm in front of the complainant.
(ii)
The
amount stolen was never recovered.
(iii)
The
complainant suffered traumatic consequences of the offence.
(iv)
The
appellant was employed. Thus, the offence was perpetuated by greed.
(v)
This
type of offence is prevalent in our country.
(vi)
The
offence was premeditated, as gleaned from the numerous occasions the
appellant entered and exited the shop.
(vii)
The
appellant had two relevant previous convictions, one of
housebreaking with intent to steal and theft, and one of theft.
(viii)
The
firearm was not recovered. This increases the potential of the
commission of further offences with the said firearm.
(ix)
By
virtue of his age and previous brushes with law, the appellant is a
potential re-offender.
[13]
The following are mitigating factors:
(i)
The appellant was 20 years old at the time of the commission of the
offence.
(ii)
No
visible injuries were inflicted with the firearm.
(iii)
The
robbery was not that callous.
(iv)
Appellants'
youthfulness and impaired vision may have played a role in the
commission of the offence.
(v)
Appellant
was employed and contributed positively to the economy of our
country.
(vi)
He
had two minor children to support and was in a stable relationship.
(vii)
The
amount stolen was minimal.
(viii)
The
appellant stayed with his grandmother.
[14]
By their nature, the mitigating factors far outweigh the aggravating
factors. Furthermore, I have identified the following
as substantial
and compelling circumstances warranting deviation from the
prescribed minimum sentence:
This
is not the type of robbery envisaged by the
Criminal Law Amendment
Act 105 of 1997
.
Except
for the traumatic consequences of an offence, no physical injuries
were caused to the complainant.
c)
An amount of R400.00 was stolen.
d)
The mode of commission of the offence reflects clouded judgment on
the part of the appellant.
[15]
I am fully alive to the remarks of Marais JA in Sv
Malgas
that:
"Court's
are required to approach the imposition of sentence conscious that
the Legislature has ordained the particular prescribed
period of
imprisonment as the sentence that should ordinarily be imposed, for
listed crimes in specific circumstances, in the
absence of weighty
justification. The specified sentences are not to be departed from
lightly and for flimsy reasons. Speculative
hypothesis favourable to
the offender, undue sympathy, aversion to imprisonment of first
offenders, personal doubts as to efficacy
of the policy underlying
the legislation and marginal differences in personal circumstances
or degrees of participation between
co-offenders are to be
excluded".
[
16] That the offence of robbery with aggravating circumstances is a
very serious one needs no further qualification. In
S
v Khambule 2001(1) SA 501 (SCA),
the
position was amplified as follows:
"The
commission of this offence had become so common, especially in and
around our large cities, that innocent men and women
used the roads
with great fear and anxiety. The brutal acts of robbers caused
enormous damage to our country and cast a dark
shadow over the
confidence of a community in policing, prosecution and
administration of justice. An indication of the seriousness
with
which the Legislature viewed this sort of conduct appeared from the
fact that a minimum sentence of 15 years' imprisonment
for robbery
with aggravating circumstances and for robbery of a motor vehicle
was prescribed in
s 51(1)
read together with
Part 11
of Schedule 2
of the Criminal Law Amendment Act 105 of1997, even for a first
offender...."
See
also
S
v Mohase 1998(1) SACR 185(0)
where
Hancke J held that
"Armed
robbery was currently assuming serious dimensions, and that
it
was important that a clear message had to be sent to potential
offenders that this conduct would not be tolerated by the courts.
The elements of retribution and deterrence came strongly to the
fore".
In
S
V
Maseko
1998(1) SACR 451 (TPD)
De
Klerk J commented as follows:
"Armed
robberies ... were on the increase. The state was manifestly
incapable of acting pro-actively to prevent this wave
of crime, and
all that remained was for the court, intervening reactively, to try
to protect the public. The only weapon available
to the courts was
to impose more severe sentences".
[17]
The imposition of sentence is a matter falling pre-eminently within
the judicial discretion of a trial court. The test for
interference
by an appeal court is whether the sentence imposed by the trial
court is vitiated by an irregularity or misdirection
or is
disturbingly inappropriate. (See
DPP
Kwazulu-Natal v P 2006(1)
SACR
243
(SCA).
Furthermore, the sentence will not be altered unless it is held that
no reasonable court ought to have imposed such a sentence,
or that
the sentence is totally out of proportion to the gravity or
magnitude of the offence, or that the sentence evokes a feeling
of
shock or outrage, or that the sentence is grossly excessive or
insufficient, or that the trial court had not exercised its
discretion properly or that it was in the interest of justice to
alter it. See S
v
Fhetani 2007(2)
SACR
590
(SCA)
at
[5].
[18]
However, the combined impact of the mitigating factors and the
substantial and compelling circumstances found justify a departure
from the prescribed sentence. For that reason the sentence imposed
on the appellant is out of proportion to the gravity and magnitude
of the offence and is disturbingly inappropriate. I am convinced
that the court
a
quo
did
not exercise its judicial discretion properly and thus, misdirected
itself. I am obliged to consider the sentence afresh.
[19]
The circumstances surrounding the commission of the offence suggest
that it was premeditated and planned. The only appropriate
sentence
is that of direct imprisonment in view of the appellant's previous
convictions, seriousness and prevalence of the offence
nationwide.
[20]
In cases of serious crimes, the personal circumstances of an
offender do not come to the fore.
[21]
I cannot agree with counsel for the appellant that correctional
supervision would be the most appropriate sentence in this
case.
Marais JA in
S
v Malgas
made
it clear that the Act signalled that it was not to be "business
as usual" when sentencing for the commission of
the specified
crime. At paragraph [8] of his judgment the learned judge stated the
position to be thus:
"In
what respects was it no longer to be business as usual? First, a
court was not to be given a clean slate on which to
inscribe
whatever sentence it thought fit. Instead, it was required to
approach that question conscious of the fact that the
legislature
has ordained life imprisonment or the particular prescribed period
of imprisonment as the sentence which should ordinarily
be imposed
for the commission of the listed crimes in the specified
circumstances. In short, the Legislature aimed at ensuring
a severe,
standardized, and consistent response from the courts to the
commission of such crimes unless there were, and could
be seen to
be, truly convincing reasons for a different response. When
considering sentence the emphasis was to be shifted to
the objective
gravity of the type of crime and the public's need for effective
sanctions against it. But that did not mean that
all other
considerations were to be ignored. The residual discretion to
decline to pass the sentence which the commission of
such an offence
would ordinarily attract plainly was given to the courts in
recognition of the easily foreseeable injustices
which could result
from obliging them to pass the specified sentences come what may"
[22]
It is well understood that previous convictions serve as guidance to
the court as to the nature and magnitude of the sentence
to be
imposed. They also give a clue to the court as to the prospects of
rehabilitation of the offender and the frequency and
pattern of
commission of offences and ability to re-offend. I cannot fault the
court
a
quo
for
referring to the previous convictions as they were relevant. In
S
v Muggel
1998
(2)
SACR
414
(C) at 419 D - G
Ngcobo
J sets out the role of previous conviction when considering an
appropriate sentence as the following:
"4,
In the exercise of its discretion, the sentencing court is required
to have regard to the nature, the number and the
extent of similar
previous convictions and the passage of time between them and the
present offence. The relevance and importance
of those convictions
depends upon the element they have in common with the offence in
question. See
S
v
J
1989
(I)
SA 669 (A) at 675C-D.
[23]
I acknowledge the psychological impact the incarceration has on
appellant's two minor children and the statement that he
supported
them. At the time he committed the offence he knew of his
responsibility towards his children. He cannot shelter behind
the
children and avoid appropriate punishment. He has not been shown to
be the primary caregiver for the children.
[24]
A substantial period of ten years imprisonment seems to me to be
sufficient to bring home to the appellant the gravity of
his
offence, and to exact sufficient retribution for his crime. Fifteen
years is grossly disproportionate.
[25]
In the circumstances I propose the following order:
a) The
conviction is confirmed.
b) The
appeal against sentence succeeds.
c)
The sentence imposed on the appellant is set aside and is
substituted as follows:
The
accused is sentenced to undergo 10 (ten) years imprisonment. The
sentence is backdated to 15 May 2007.
NGWEWU,
A J
I
agree with the outcome, but for different reasons which I prepared
in writing. I hand down those reasons to form part of the
record.
LE
GRANGE, J