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[2010] ZAWCHC 541
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Pipers v S (A 563/09) [2010] ZAWCHC 541 (10 November 2010)
Republic
of South Africa
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE No: A 563/09
In
the appeal between:
JONATHAN
PIPERS
….......................................................................................................
Appellant
and
THE
STATE
….................................................................................................................
Respondent
JUDGMENT DELIVERED ON
10 NOVEMBER 2010
BRUCE-BRAND, AJ:
[1] The appellant was
convicted in the Regional Court at Bellville on two charges of
robbery with aggravating circumstances and
one charge of attempted
robbery with aggravating circumstances. Substantial and compelling
circumstances were found to exist
and on 9 October 2008 the
appellant was sentenced to 10 years imprisonment in respect of each
of the two counts of robbery, the
sentences being ordered to run
concurrently. On the charge of attempted robbery he was sentenced to
two years imprisonment, the
effective total sentence thus being one
of 12 years imprisonment. With the leave of this Court, the
appellant now appeals to
this Court against sentence only.
[2] The appellant was
arrested on 26 June 2004. He first appeared in the Regional Court on
21 October 2004 and faced eight charges
when the trial eventually
commenced on 12 February 2008. The appellant was legally represented
at his trial.
[3] The appellant was
released from custody on R1 500 bail on 26 July 2004 but on 28 July
2004 he was again arrested on a charge
of robbery with aggravating
circumstances which forms the subject matter of count 6. He has
remained in custody since that date.
When he was convicted on 26
September 2008, he had effectively been in custody awaiting trial for
four years and two months.
[4] During that time the
trial was postponed some 15 times at the instance of both the State
and the appellant respectively, for
numerous reasons. Comment shall
be made below, both on the various causes for the numerous
postponements, as well as the basis
upon which the long period of
time spent in prison awaiting trial, should be taken into account for
purposes of deciding on an
appropriate sentence.
[5] The appellant pleaded
not guilty to all counts, but was convicted on counts 5, 6 and 7
being:
5.1. Counts 5 and 6 -
Robbery with aggravating circumstances as described in
Section 1
of
the
Criminal Procedure Act, No. 51 of 1977
; and
5.2. Count 7 - Attempted
robbery with aggravating circumstances.
[6] On count 5, the
victim was robbed of his gold ring worth R250. On count 6, the victim
was robbed of her Motorola C200 cellular
telephone valued at R549. On
count 7, the attempted robbery related to a cellular telephone of
which the value is unknown.
[7]
According to the three charges on which he was convicted, in terms of
which aggravating circumstances were alleged and proved,
the
appellant threatened to shoot the victims with a firearm (the make
and caliber of which were unknown to the State) thereby
causing them
to believe that he had a firearm in his possession and would have
shot them should they fail to co-operate. The appellant
was expressly
informed by tne Regional Court of the precise terms of the minimum
sentences which, in the event of his conviction
on the charges of
robbery with aggravating circumstances, he would face in terms of
section 51(2)(a)(i)
of the Criminal Law Amendment Act 105 of 1997
("the 1997 Act") as read with Part
II
of
Schedule 2 to that Act.
[8] The trial court found
that aggravating circumstances were proved in respect of all three
charges on which the appellant had
been convicted in that he had
threatened to inflict grievous bodily harm on each occasion. On the
evidence accepted by the Court
in all three instances, the appellant
uttered threats to shoot persons whom he had confronted even though
no one saw an identifiable
firearm. However, the manner in which the
appellant held his hand under his clothing at the time of uttering
these threats, led
the complainants to believe that he had a firearm
and would be capable of carrying out his threats to shoot.
[9]
The evidence of the complainant on count 5, Fabian Benn, was that on
26 June 2004 whilst he was walking in the company of a
girl, the
appellant ran up behind them holding an object which looked like a
black handle
("swart
steel').
The
appellant demanded that Benn hand over a ring which he was wearing,
and threatened to shoot the girl if he did not do so. Because
of this
threat Benn removed his gold ring which he handed to the appellant
who, after searching Benn's pockets, ran away.
[10] Benn telephoned the
police and, upon their arrival in a police vehicle, reported the
robbery to them. They drove off but after
a short distance were
stopped by Stephen Camphor, the complainant on count 7, who reported
there had been an attempt to rob him
a short while earlier.
[11] Camphor's evidence
was that, after leaving the Sanlam Centre in Bellville on foot, he
was approached from behind by a man who
asked him the time. As
Camphor did not have a watch he took out his cell phone from which he
ascertained the time. When he was
about to put it away, the man told
him to remove the SIM-card and hand over the cell phone. However,
Camphor refused to do so and
an argument ensued. The man, who was
holding his hand under his jacket as if he was holding some object,
threatened to shoot Camphor
if he did not hand over the cell phone.
Even though Camphor thought this man had a firearm, he refused to
hand over his cell phone
and moved away, whereupon the man ran away
in the direction of the Bellville station.
[12] Shortly thereafter
Camphor saw the police vehicle which he stopped and reported to the
police what had happened. On entering
the vehicle he saw Benn. The
police drove towards the station and saw the appellant whom Camphor
pointed out and identified as
being the man who had accosted him and
had demanded his cell phone. Upon seeing the police the appellant ran
away but was caught
and arrested. He was searched but was not in
possession of any firearm. At that time Benn identified the appellant
as being the
person who had robbed him.
[13] The appellant was
taken to the Belhar police station where he was searched again. This
time two rings were found in his right
sock, as well as having in his
possession a cell phone for which he did not know the PIN-code. Benn
identified one of the rings
found in the appellant's possession as
being his gold ring which he valued at R250.
[14] On 28 July 2004
Karen de Beer was walking in Bellville South with Jacqueline Jacobs
who was seven months pregnant and had a
baby with her. They were
approached by a man who demanded their cell phones and money. De Beer
said she had no money whereupon
this man said he would shoot the baby
unless they handed over their cell phones. Both de Beer and Jacobs
saw that the man was holding
his one hand under his clothing in a way
which, together with the threat to shoot the baby, led them to
believe he had a firearm.
As a result of this threat Jacobs thereupon
handed over her Motorola cell phone which she valued at R549. She
told the trial Court
that, as a result of the stress caused by this
incident, she was sick for a few days.
[15] The police showed
Jacobs an album containing photographs of a number of people from
which she identified the appellant who
was then re-arrested.
[16]
At the hearing of the appeal the appellant was represented by Mr
Charters
who
raised a number of issues in support of his argument for a reduction
in the sentences imposed. Due consideration has been given
to all of
the submissions which were made on behalf of the appellant and I
shal, deal with the main arguments below.
[17] Appellant's counsel
submitted there was serious doubt as to whether, when convicting the
appellant, the inclusion of a finding
that aggravating circumstances
had been established was correct. It was argued that the only element
of violence disclosed by the
evidence was the threat to shoot if the
complainants did not comply with the appellant's demand to hand over
cell phones and a
ring - which was, in any event, an essential
requirement for the conviction on a charge of robbery. It was further
argued that
the Legislature must have intended that, before there can
be a finding of aggravating circumstances to justify an increased
sentence,
there must be some further conduct over and above the
actions necessary to constitute the offence of robbery.
[18] Appellant's counsel
additionally suggested that the requisite threat to do grievous
bodily harm, both for the purposes of robbery
with aggravating
circumstances and for the purposes of Part II of Schedule 2 to the
1997 Act, in effect amounts to what he described
as an unfair
duplication of sanctions and was comparable to double jeopardy.
[19]
I do not agree with this proposition. The definition of
"aggravating
circumstances"
in
section 1
of the
Criminal Procedure Act 51 of 1977
specifies
requirements which go beyond what is required for conviction on a
charge of robbery. In the context of the present matter
the requisite
threat, of violence to justify conviction on a charge of robbery (in
the absence of actual violence) does not require
the violence
threatened to involve a threat to do grievous bodily harm - which is,
however, required to establish
"aggravating
circumstances"
in
the present case as defined under
section 1
(b)(iii).
[20]
Following the reasoning used in
S
v Blaauw
1999
(2) SACR 295
(W), the commission of the offences of robbery in the
circumstances envisaged in
Part II
of Schedule 2 to the 1997 Act does
not change the nature or description of the crime of which the
appellant is convicted. There
is no specific crime of
"robbery
with intent to do grievous bodily harm"
nor
"robbery
committed with aggravating circumstances".
The
additional features mentioned in sec 1 (1 )(b)(ii) or (iii) and in
Part II of Schedule 2 to the 1997 Act are matters surrounding
the
commission of the offence of robbery which, in the eyes of the
Legislature, makes it more serious. All the Legislature has
done is
to define circumstances which it regards as aggravating the offence
charged and which, if present, will attract higher
sentences than in
the past.
[21]
The next contention on behalf of the appellant was that, because he
was unarmed and therefore not able to carry out his threat
to shoot,
there should not have been a finding of aggravating circumstances and
the appellant should only have been convicted of
robbery
simpliciter.
Factually
it does appear that the appellant did not have a firearm as appears
from the following:
None of the complainants
saw any firearm;
Cst Greet arrested and
searched the appellant on 26 June 2004 shortly after the commission
of counts 5 and 7 but found no weapon
or firearm on him. He was
arrested only a matter of some 400 to 600 metres away from where
Campher met Greef shortly after the
attempted robbery on Campher.
Campher ignored the appe
lant's threat and walked away without any violence being perpetrated
and certainly no shots were fired.
[22]
Reliance for this argument was based on the case of
S
v Cele
2009
(1) SACR 59
(N) where it was held that, objectively speaking, certain
words uttered in conveying a threat could not be regarded as having
the
meaning contended for or being likely to have the consequences
alleged by the State. The present matter is distinguishable in that
the threat of violence implicit in a threat to shoot is clear and
unequivocal, and not surprisingly in fact inspired fear in two
of the
complainants.
[23]
It is nevertheless appropriate to consider whether, in view of the
fact that the appellant was unarmed and allowed the complainant
Camphor to simply walk away unharmed, aggravating circumstances were
established, in
R
v Jacobs,
1961
(1) SA 475
(A), the Appellate Division held trat an enquiry on
whether for purposes of the section an accused had inflicted bodily
harm, was
an objective one based on the facts and did not depend on
the further question of whether an accused had actually intended to
inflict
grievous bodily harm.
[24] Accordingly it was
not necessary to enquire into the Appellant's state of mind to
ascertain whether he harboured any actual
intention to cause harm at
the time of the robberies. It is a question of fact as to whether the
appellant actually threatened
to inflict grievous bodily harm. There
is no reason to disagree with the positive finding of the
Regional Court in this
regard.
[25] The question which
arises here is whether a person who has not inflicted any bodily harm
at all can be said to have threatened
the infliction of such harm in
contravention of section 1 (1 )(b)(iii) of the
Criminal Procedure Act
when
in fact he was not in a position to implement or carry out his
threat.
[26]
In
R
v Zonele and Others,
1959
(3) SA 319
(A), an accused who pointed a firearm which was not in
working order was found guilty of robbery with aggravating
circumstances.
This decision was relied upon in S
v
Mbele
1963
(1) SA 257
(N), which examined the question posed above and answered
it in the affirmative. The headnote in that matter reads as follows:
"A person who has
not inflicted any bodily harm at all may nevertheless be said in
terms of this section, to have threatened
the infliction of such harm
when in fact he threatened with an unloaded pistol, ie where he was
not in a position to implement
or carry out his threat."
[27] Accordingly, in the
circumstances it was in my view correctly held in the present matter
that aggravating circumstances were
established on the evidence.
[28] Notwithstanding the
existence of aggravating circumstances in this matter, the trial
Court held that substantial and compelling
circumstances, as
envisaged by section 51 (3)(a) of the 1997 Act, existed which
justified the imposition of a lesser sentence than
the prescribed
minimum sentence of 15 years. These circumstances were found to be:
28.1. the fact that the
appellant had no previous convictions;
28.2. the fact that no
injuries were inflicted; and
28.3. the considerable
period of time during which the appellant was in custody whilst
awaiting trial.
[29] In regard to the
effect on sentence of the lengthy delay before the appellant was
brought to trial, it was
contended on behalf of the appellant that his sentence should have
been reduced by the
period he spent in custody. Reliance was placed on the judgment in
S
v Stephen and Another
1994
(2) SACR 163
(W) where the following statement from the
Canadian
decision of
Gravino
(70/71)
13 Crim LQ 434
(Quebec Court of Appeal) was
quoted with approval:
"Imprisonment
whilst awaiting trial is the equivalent of a sentence of twice that
length."
[30]
In its reasons for sentence the court a
quo
stated
as follows on page 308 of the record:
"Ek hou in
gedagte dat u hierdie lang tydperk in hegtenis was, maar u is die
groot oorsaak van die vertraging en ek kan gevolglik
nie se dat
hierdie lang tydperk, vier jaar, net so in gedagte gehou moet word of
so in berekening gebring moet word wanneer 'n
vonnis oorweeg word
nie. Ek se ek hou in gedagte dat u lank in hegtenis was, maar as u as
beskuldigde nou kom en u veroorsaak uitstelle
vir drie en vier jaar,
kan u nie seersekerlik daarop aandring en kom se maar ek is nou al
vier jaar in hegtenis, nou moet ek 'n
opgeskorte vonnis kry nie. Dan
kan enige beskuldigde mos maar die ding vertraag en dan uiteindelik
se nou maar omdat ek so lank
in hegtenis is. moet ek nou 'n
buitestraf kry. Wat ek se dus is dat ek hierdie tydperk bloot in
berekening moet bring, dit in gedagte
moet hou."
[31] Whilst it is correct
that the appellant was responsible for many of the delays which
occurred, perusal of the record reveals
that there were numerous
other occurrences which gave rise to significant delays in
progressing this matter to trial. These included
failure of the
prisons to bring the appellant to court, an overburdened court roll
preventing the matter being heard, delays in
holding an
identification parade (which was eventually held a year after his
arrest), the identification parade being held on one
occasion without
the appellant's legal representative being present and on another
occasion being frustrated by the actions of
the prison authorities,
the non-availability of the defence attorney, and the prosecutor
being ill on the day of trial.
[32] In the
circumstances, and particularly bearing in mind the above-quoted
passage, it appears the trial court was unduly critical
of the
appellant in weighing up the delay as a factor for purposes of
sentencing.
[33]
In "Guide to Sentencing m South Africa" 2
nd
ed.
by S S Terblanche, the author refers to a number of cases in support
of the following passage which appears at page 205:
"If the accused
is held in custody while awaiting the completion of the trial, the
time spent in custody should be taken into
account when the duration
of the sentence is determined. It is not certain to what extent this
should be done. However, as pre-sentence
custody increases in
duration, it becomes essential to do a rough subtraction in order to
do justice to the offender The courts
have stopped short of saying
that the term of confinement spent awaiting trial should be
subtracted from the term of imprisonment
the court considers
appropriate; in practice this is probably the basic intention."
[34]
The above passage was quoted in
S
v Vilikazi
2000
(1) SACR 140
(W) by
Goldstein
J
who
referred to the above dictum from
Stephen's
case
(supra), but expressed doubt on whether pre-sentence detention in
South Africa is more oppressive than it is for a sentenced
prisoner
He reduced the sentence which he imposed on each of the accused
before him by two years, being the period for which they
had been in
custody awaiting trial.
[35]
In the case of
S
v Njikelana
2003
(2) SACR 166
(C) this Court deducted the period of three years for
which an accused had been in custody awaiting trial and sentence,
from what
it considered would otherwise have been an appropriate
sentence to be imposed. The charge was one of rape for which there
would
have been a mandatory sentence of life imprisonment had it not
been for a finding that substantial and compelling circumstances
existed. The Court reduced the sentence by a further year to make
allowance for the fact that, whilst in custody awaiting trial,
the
appellant had to endure the mental anguish of the prospect of life
imprisonment.
[36] In the offence of
robbery the value of the goods stolen, or sought to be stolen, is
not necessarily of great import but can
be a relevant factor. In
this present case the items involved were not of great value being a
gold ring worth R250 (count 5)
and a cellular telephone valued at
R549 (count 6). Count 7 involved the attempted robbery of a cellular
telephone of which the
value is unknown. This was not mentioned by
the trial court when assessing sentence.
[37] The trial court
correctly considered a significant aggravating feature to be the
fact that two days after being released
on bail the appellant
committed the further robbery which formed the subject matter of
count 6. Furthermore the appellant showed
no contrition or remorse
for his criminal behaviour.
[38] In regard to the
personal circumstances of the appellant, he is unmarried and has no
previous convictions. He was employed
as a forkiift operator at the
docks and earned R1 700 per week. He lost his parents whilst an
infant and was brought up by foster
parents from the age of five
months. He lost his foster father one year before committing the
offences of which he has been convicted
and apparently this hit him
hard.
[39] The appellant was
22 years of age when he was arrested, and was 27 years old when he
was sentenced. The age of an accused
is an important factor
particularly as, in this case, the trial Court was asked to consider
rehabilitation when assessing sentence.
The appellant claimed that
he had been rehabilitated during the lengthy period which he spent
in custody awaiting trial. This
was dismissed by the trial Court on
the grounds that he had not admitted his guilt and a person can only
be rehabilitated once
he acknowledges that he has done something
wrong.
[40]
At the time of considering sentence the learned Regional Magistrate
gave consideration to the traditional suojective factors
relating to
the appellant, and this led to finding that aggravating
circumstances existed. Emphasis was placed upon the seriousness
of
the offences, prevalence and the demands and expectations of the
community. This is appropriate as appears from the statement
in
S
vs Mhlakaza and Another
1997
(1) SACR 515
(SCA) at 519d-e that
"Given
the current levels of violence and serious crimes in this country,
it seems proper that, in sentencing especially
such crimes, the
emphasis should be on retribution and deterrence".
[41
] This was quoted with approval by the Supreme Court of Appeal in
S
v Swart
2004
(2)
SACR 370
where
Nugent
JA
commented
as follows at page 378 para 12:
"What appears
from those cases is that in our law retribution and deterrence are
proper purposes of punishment and they must
be accorded due weight
in any sentence that is imposed. Each of the elements of punishment
is not required to be accorded equal
weight, but instead proper
weight must be accorded to each according to the circumstances.
Serious crimes will usually require
that retribution and deterrence
should come to the fore and that the rehabilitation of the offender
will consequently play a
relatively smaller role."
[42] And later he stated
as follows:
"/ have pointed
out that in the case of serious crimes society's sense of outrage
and the deterrence of the offender and
potential offenders deserve
considerable weight.
[43]
In the same case reference was made to statements in
S
v Rabie
1975
(4) SA 537
(A) at 540 where
Holmes
JA
stated
that
"the
main purposes of punishment are deterrent, preventative, reformative
and retributive",
and
added that the
"punishment
should fit the criminal as well as the crime, be fair to society,
and be blended with a measure of mercy according
to the
circumstances".
[44]
The Regional Magistrate presiding at the trial took account of his
personal knowledge of crimes in the area. This was appropriate
in
the light of the following statement from the judgment in
S
v Naidoo
2000
(1) SACR 361
(SCA) para [10] at page
365:
I
"In my view, the
magistrate was clearly entitled to rely on his personal knowledge of
the widespread occurrence of violent
crime in the area of his
jurisdiction without giving prior notice of his intention to do so
to the appellants representative"
[45]
In the context of the present case it is important for a court to
retain a balance between the various factors which should
be taken
into account by it when assessing what will be an appropriate
sentence. In
S
v Mofokeng and Another
1999
(1) SACR 502
(W)
Stegmann
J
stated:
"The balanced
approach of the courts is sensitive to the needs to avoid the
mistake (which is both unjust and contrary to
the interests of
society) of sacrificing' any individual offender on the alter of
deterrence'."
[46] On the issue of
deterrence, it is pointed out at page 156 of Terblanche's textbook
(above)
that two forms of deterrence are recognised namely
"general
deterrence" which
operates
against society as a whole (ie as an example to other potential
offenders), and
"individual
deterrence"
which
operates against the offender. At page 161-162 Terblanche states:
"The theory
behind individual deterrence is that the offender will be deterred
from re-offending because he has learnt from
the unpleasant
experience of his punishment, or because he is fearful of what may
happen if he re-offends. Ordinary suspended
sentences are considered
to have a particular individual deterrent effect. In the case of
repeat offenders, courts often regard
a sentence more severe than
the previous one as the only appropriate measure since, it is
argued, the offender has not learned
his lesson."
[47]
A careful examination of the reasons for sentence by the court a
quo
indicates
that, whilst the punitive and general deterrent factors were
strongly emphasized, inadequate weight was given to the
reformative
and individual deterrent factors as well as the personal
circumstances of the appellant.
[48] This appears
particularly from the following passage in the reasons for sentence
at
page 310 of the record:
"Die Hofmoet dus
vonnis ople wat die gemeenskap tot 'n mate tevrede sal stel. Ek moet
ook 'n vonnis ople wat by u sal tuisbring
misdaad is nie iets wat u
vir u mee moet besig hou nie. U moet ophou met misdaad pleeg, maar
daardie selfde boodskap moet uitgaan
ook na ander mense in die
gemeenskap. Die boodskap is dat die howe swaar vonnisse sal ople vir
ernstige misdaad, wanneer 'n beskuldigde
skuldig bevind is.
Vergelding speel 'n belangrike rol. U moet gestraf word want dit is
'n uiters laakbare misdryf wat u pleeg."
[49] The trial court
dismissed :he appellant's claim that he had been rehabilitated
during the four years he had spent in custody,
and further stated
the following:
"U se vir die
Hof u het gerehabiliteer. 'n Mens kan net rehabiliteer as 'n mens
erken dat u iets verkeerd gedoen het. U se
ek het niks verkeerd
gedoen nie. As u niks verkeerd gedoen het nie, hoe kan u verander
ten
goede Dit is duidelik
uit u eie getuienis dat u nog niks geleer het
omtrent misdaad,
berou en dat eers moet besef ek het verkeerd gedoen voordat u kan
rehabiliteer."
[50] When assessing
sentence, particularly in respect of a relatively young first
offender, a court should consider whether individual
deterrence is
appropriate. In view of the appellant having raised the issue of his
rehabilitation, consideration should have
been given to whether the
aspect of individual deterrence personal to the appellant was
appropriate.
[51]
This should have appeared in the reasons for sentence - thereby
indicating that it was considered. It was not mentioned and
appears
not to have been considered. During argument the significance of
this omission was put to counsel for the State. Mr
Stephen
SC,
who conceded this was a misdirection by the trial Court.
[52] It appears that the
trial Court effectively stated that the appellant had not learned
his lesson whilst in
custody awaiting trial, and then treated him in a manner more
appropriate to a repeat
offender by stating:
"U
se ek is onskuldig, u hou vol daarmee, toon steeds berou nie, toon
steeds geen erkenning dat u verkeerd gedoen het nie.
U het dus nie
kon rehabiliteer in die tydperk wat u alreeds daaris nie.
n
Vonnis
moet opgele word wat u tot ander insigte moet dwing ofprobeer
dwing."
[53] Whilst lack of
remorse is relevant to sentence, insofar as this passage shows a
lack of remorse on the part of the appellant,
it indicates that such
lack of remorse was regarded as an aggravating feature in imposing
sentence. This concept is dealt with
by Terblanche at pages 189-190
where he states:
"Lack of remorse
has often been mentioned as an aggravating factor, although there
has been little discussion about the reasons
for this view.
Sometimes it is simply mentioned as a factor which is not
mitigating. However, the offender is fully entitled
to plead not
guilty, to challenge the prosecution to prove his guilt, and to
attack in cross-examination the witnesses' versions
of events. This
should never be held against him when sentence is imposed."
[54] In view of the
misdirection by the trial Court, this Court is at large on sentence.
Furthermore and in any event, the sentences
imposed on counts 5 and
6 are, to my mind, excessive particularly bearing in mind the period
of approximately four years during
which the appellant was in
custody awaiting trial.
[55]
In the particular circumstances of this case I consider it is
appropriate to examine whether a portion of the sentence imposed
on
the appellant should be suspended for rehabilitative purposes.
Section 297(4)
of the
Criminal Procedure Act provides
:
"Where
a court convicts a person of an offence in respect of which any law
prescribes a minimum punishment, the court may
in its discretion
pass sentence but order the operation of a part thereof to be
suspended for a period not exceeding five years
on any condition
referred to in paragraph (a)(i) of subsection (1)."
[56] It is necessary to
consider whether it is competent to suspend all or a portion of the
sentence of imprisonment for an accused
convicted on a charge of
robbery involving a threat to inflict grievous bodily harm which
constitutes aggravating circumstances
(and which therefore falls
within the provisions of
Part II
of Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
), but where substantial and compelling
circumstances have been found to exist.
[57]
As appears from the heading thereto,
section 51
of the
Criminal Law
Amendment Act prescribes
"Minimum
sentences for certain serious offences".
Sub-section
51(5) provides:
"The
operation of a sentence imposed in terms of this section shall not
be suspended as contemplated in section 297
(4)
of
the Criminal Procedure Act, 1977 (Act 51 of 1977)".
At
face value this might appear to remove the court's discretion to
impose a suspended sentence for any matter falling under the
ambit
of section 51.
[58] However, where
there has been a finding that substantial and compelling
circumstances exist, does the prohibition against
suspension
contained in section 51(5) preclude the Court from suspending all or
part of the lesser sentence being imposed?
[59]
One must consider whether the Legislature intended for section 51 of
the 1997 Act to restrict the discretion of a Court when
sentencing
any offender who has been convicted of an offence falling within the
ambit of subsections (1) and (2) thereof - even
if substantial and
compelling circumstances exist. Such an interpretation would not, in
my view, accord with the intention of
the Legislature when enacting
this Minimum Sentence Legislation. As stated above, the subheading
to section 51 is focused on
minimum
sentences
for certain serious offences.
[60] Insofar as there
may be uncertainty as to the intention of the Legislature in regard
to the scope of the
application of section 51(5) of the 1997 Act, in view of the serious
inroads into the Court's
discretion this provision could have if sub-section 51(5) does
remove
the court's discretion, it should be interpreted restrictively. In
this regard in
S
v
Kimberly
2005
(2) SACR 663
(SCA) at paragraph 13 the Supreme Court of Appeal (when
dealing with section 51)
indicated that, insofar as wording in Part 1 of Schedule 2 to the
1997
Act might not be clear, such provisions should be interpreted in a
way
"least
harsh to
the
affected person"
and
stated:
"More
particularly, statutes which prescribe minimum sentences, such as
the statute here under consideration, thus eliminating
the usual
discretion of a court to impose a sentence which befits the peculiar
circumstances of each individual case, will usually
be construed in
such a way that the penal discretion remains intact as far as
possible."
[61]
However, as appears from the judgments in
S
v Biaauw
(supra)
and in
S
v
Dithotze
1999
(2) SACR 314
(W), it is clear that the discretion of the courts was
not
removed by section 51,
even though the intention of the Legislature in enacting section 51
was
that "a
clear
message is to be sent, both by Parliament and the Courts alike, that
serious
crime will be punished severely".
This
follows from the following statements in
Blaauw's
case
at 302h and 311e:
"It
is my view important to note that this legislation does not create
mandatory sentences which strip the Courts of all
their traditional
discretions when it comes to determining an appropriate sentence in
any individual case. The Courts are not
reduced by these provisions
to the mere rubber stamp complained of in
S
v Toms, S v Bruce
[1990] ZASCA 38
;
1990
(2) SA 802
(A), for some discretion is left to the Court if
substantial and compelling circumstances are found to be present."
"Section 51(1)
read with s 51(3) of the Act does not create a mandatory sentence,
for a measure of discretion is permitted
to the Court to find that
substantial and compelling circumstances exist which justify the
imposition of a sentence less severe
than that of life imprisonment.
This discretion is narrower than that permitted in earlier
legislation where the finding of mere
'circumstances' was sufficient
to justify a departure from a prescribed sentence. The Legislature
has not seen fit to describe
what factors may or may not be
considered, consequently a Court is, in my view, still able to have
regard to all the factors
which would traditionally have been
considered in imposing sentence."
[62]
The conclusion that the judicial discretion is not removed by
section 51 of the 1997 Act is reflected in a passage in Terblanche,
op
cit,
where,
in para 3.6.5 at page 69 under subheading "Reinstatement of the
court's discretion", he states the following:
"Generally, once
the court has found substantial and compelling circumstances to be
present in a particular case, the authority
in terms of which the
discretionary sentence should be imposed has not been an issue.
Clearly, the court would then return to
the normal position, as if
the Act had not been passed."
[63]
At page 72 Terblanche,
op
cit
paragraph
3.8.2 comments further on when a court
may suspend the sentence
imposed in respect of offences falling within the scope of the
Minimum Sentence
Legislation as follows:
"Section
51(1) prohibits the sentencing court to suspend any sentence imposed
in terms of section 51, whether in part or
completely. A sentence
imposed
after
a
finding that substantial and compelling circumstances exist is
clearly not sentence 'imposed in terms of this section [section
51].
Rather it is a sentence imposed in terms of the court's ordinary
sentencing jurisdiction, as mentioned in paragraph 3.6.5."
[64]
In considering the period for which part of the sentence should be
suspended, cognisance is taken of the judgment in
S
v Wakiri
1981
(2) SA 527
(ZA) where it was stated:
"The main
purpose of a suspended sentence is rehabilitative and, while a long
period of suspension is probably right for
a wholly suspended
sentence or after a comparatively short period of imprisonment,
after a long period of imprisonment what is
needed is a
comparatively short period of suspension to induce the released
offender to settle down to a useful life."
[65] In all the
circumstances of this matter, whilst the sentence to be imposed
should be a period of imprisonment of sufficient
duration to reflect
the serious view taken by this Court to the unacceptable criminal
behaviour of the appellant, I consider
it appropriate for a portion
of such imprisonment to be suspended to deter the appellant from
re-offending.
[66]
Accordingly, bearing in mind the facts I have set out above, as well
as the
unusually
long period which the appellant spent in custody awaiting trial, the
following order is made:
66.1. On count 7, being
the charge of attempted robbery, the appeal against sentence is
dismissed and the sentence of (2) two
years imprisonment is
confirmed.
66.2. The appeal against
sentence on counts 5 and 6 is upheld to the extent set out below.
66.3. On each of counts
5 and 6:
66.3.1. the original
sentence of ten years imprisonment is set aside;
66.3.2. the appellant is
sentenced to (6) six years imprisonment of which (2) two years is
suspended for a period of (3) three
years on condition that the
appellant does not during such period of suspension commit the
offence of robbery or any other offence
of which violence or theft
is an element and for which he is subsequently convicted;
66.3.3. the sentences on
counts 5 and 6 are ordered to run concurrently;
66.4. The sentences on
counts 5, 6 and 7 are antedated to 9 October 2008.
66.5. The effective
total sentence (excluding the portion of the sentences on counts 5
and 6 which are suspended) is thus (6)
six years imprisonment.
A
BRUCE-BRAND, AJ
I agree and it is so
ordered.
P
L GOLIATH