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[2010] ZAWCHC 576
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Matywatywa v S (A237/2010) [2010] ZAWCHC 576 (26 November 2010)
IN
THE
HIGH
COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER: A237/2010
DATE:
26 NOVEMBER 2010
In
the matter between:
L
MATYWATYWA
…..............................................................................
Appellant
and
THE
STATE
…...........................................................................................
Respondent
JUDGMENT
WEINKOVE,
AJ
:
Appellant
was charged and convicted on three counts of robbery with
aggravating circumstances, in that on 6 September 207 in Forest
Drive Extension, Thornton in the Western Cape, he robbed the first
complainant of a Samsung cell phone. He made use of a firearm
which
was probably a realistic toy gun. On the same day in Coral Tree
Street, Thornton, appellant robbed the second complainant
of a
Samsung cell phone, again using a firearm, also probably a toy gun,
in the robbery. On 13 September 2007 and in Forest Drive
Extension,
Thornton, appellant robbed third complainant of a Motorola cell
phone again using the same
modus
operandi,
which
involved showing the victim the gun which was either tucked into his
trousers or held under his arm. Again it seems highly
likely that
this was also a toy gun.
Appellant
comes before this Court with leave to appeal from the court a
quo
against
the sentence imposed. Because appellant committed an offence for
which a minimum sentence of 15 years has been prescribed
by the
legislature, the court, in imposing sentence, had to be satisfied
that there were substantial and compelling circumstances
which
justified a deviation from the minimum sentence prescribed by the
legislature. Before sentence was imposed, the prosecutor
addressed
the court and conceded that there were substantial and compelling
circumstances which justified a deviation from the
minimum
prescribed sentence.
He
proposed to the court that in respect of counts 1 and 2, a sentence
of 15 years should be imposed on each count, but that five
years of
that sentence should be suspended and that the two counts should be
regarded as one. He further proposed that in respect
of count 3 a
sentence of five years should be imposed to run concurrently with
the sentence imposed in respect of counts 1 and
2. In effect,
therefore, the prosecutor was proposing a sentence of ten years
imprisonment in respect of all three counts.
On
the question of sentence the magistrate took into account that the
appellant was only 23 years of age when he was arrested
on 18
October 2007, more than three years ago, and that he was 25 years of
age at the time of trial. He also was supporting a
minor child and
was a first offender. She took into account that he used a toy gun
and did not physically harm any of the complainants
and that he had
been in custody since his arrest on 18 October 2007, which was more
than three years ago.
The
magistrate found that all three complainants testified they were
traumatised by the experience and took into account that
all three
of them had permanently lost their cell phones. Taking into account
all these factors, the magistrate then took counts
1 and 2 together
for the purposes of sentence and imposed a sentence of 15 years in
respect of these two counts. She further
sentenced appellant to
another five years imprisonment in respect of count 3 so that
effectively appellant would have to serve
20 years imprisonment in
respect of these three offences. This was double the period that the
prosecutor himself had proposed.
It
seems to me that imposing a sentence of 20 years on a first offender
for the robbery of three cell phone from three complainants,
all
within a few days of each other, is unduly harsh. Appellant was a
young man and most importantly was a first offender. Imposing
a
sentence of 20 years imprisonment leaves little, if any, room for
rehabilitation and will immediately place this first offender
into
the company of hardened criminals. I also do not think that the
magistrate sufficiently took into account the long period
of
imprisonment which appellant was obliged to serve before the
conclusion of his trial. He was an awaiting trail prisoner for
nearly two years and that fact should have been taken into account
in imposing sentence.
When
the Court considers a suitable sentence in a particular case and
there is a gross disparity between the sentence the Court
would have
imposed and the sentence which the magistrate imposed, then the
Court should interfere and I believe this is such
a case. Although
the appellant's personal circumstances are very favourable, the
sentencing court must also take into account
the interests of
society and the nature and seriousness of the offence. As far as the
latter is concerned, what the evidence
reveals is that the appellant
was systematically preying on women in the Thornton area by robbing
them in broad daylight of their
cell phones, none of which were
recovered.
Whilst
it is a mitigating factor that in all probability the weapon used
was not a real gun, the fact was, of course, not known
to his
victims, who to a lesser or greater extent, were traumatised by the
robberies. As far as the interests of the community
are concerned,
it goes without saying that women should be able to walk the streets
of their neighbourhood free of the fear that
they will be robbed or
injured. See
S
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at 5b-c.
Notwithstanding
the existence of substantial and compelling circumstances, this
Court is not at liberty to ignore the sentencing
regime envisaged in
the minimum sentencing legislation. As was stated by
Marais
.
J in
S
v Malqas
2001
(1) SACR 469
(SCA) at 482e-g:
"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 benchmark which the
legislature has provided."
As
far as sentence is concerned, the robberies which were the subject
of counts 1 and 2 took place only minutes apart and the
magistrate
properly took them together for the purposes of sentence. However,
the appellant committed a third robbery a week
later and in the
circumstances must be sentenced separately on this count. It would,
in my view, be salutary for a part of the
appellant's sentence to be
suspended so as to put him on notice that should he again relapse in
future he will pay a heavy penalty.
In
the present case it would also be just if the 22 months spent by the
appellant in prison awaiting trial, were brought into
account. In
this regard see
S
v Vilakazi
2009
(1) SACR 552
(SCA). In the circumstances I would order that a
further 22 months be deducted from the appellant's effective
sentence when calculating
the day upon which the sentence is to
expire. Taking all these circumstances together, mitigating and
aggravating, I consider
the following sentence would be appropriate:
1.
The appeal against sentence is upheld.
2.
The sentence imposed in respect of counts 1, 2 and 3 are set aside
and replaced with the following:
(a)
Counts land 2 to be taken together for the purpose of sentence and
the appellant to be sentenced to 7 (seven) years imprisonment
on
these counts, 3 (three) years of which is suspended for a period of
4 (four) years from the date of his release on condition
that he is
not convicted of robbery committed during that period.
(b)
On count 3,
I
would
sentence the appellant to 4 (four) years imprisonment, 2 (two) years
of which should run concurrently with the sentence
imposed in counts
1 and 2.
(c)
When calculating the date upon which the appellant's effective
sentence of 6 (six) years is to expire, 22 (twenty two) months
should be deducted therefrom.
For
the sake of clarity I record that the above proposed sentence will
result in an effective term of
IMPRISONMENT
OF SIX
(6)
YEARS
subject
to the appellant's release date being calculated taking into account
the 22 months spent by him in prison awaiting trial.
WEINKOVE, AJ
BOZALEK,
J
:
I agree and it is so ordered.
BOZALEK,
J