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[2010] ZAGPPHC 594
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Gxowa v S (A198/2008) [2010] ZAGPPHC 594 (16 March 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH
GAUTENG HIGH COURT.
PRETORIA
)
CASE NO: A198/08
DATE: 16 MARCH 2010
IN THE MATTER
BETWEEN
THAMSANGA HANDSOME
GXOWA
.......................................................................................
APPELLANT
AND
THE
STATE
................................................................................................................................
RESPONDENT
JUDGMENT
POSWA. J
Background and
Introduction
[1] The Appellant,
an 18 year old young man. was charged with two counts of robbery,
which he allegedly committed on 19 April 2000
and 21 April 2000.
respectively, at Kwa-Thema. According to the charge-sheet and its
annexures. his first appearance before the
Magistrate's Court was
sixty seven days after his arrest, having been in custody all that
time. During the trial, he was legally
represented. He pleaded not
guilty, alleging that he knew absolutely nothing about the
allegations in respect whereof he was charged.
[2] Having heard
evidence from witnesses, including the Appellant's testimony, the
Magistrate found him guilty in respect of both
counts. He was
scntcnccd to fifteen years imprisonment, in respect of each count,
there being no order with regard to the second
sentence or part
thereof running concurrently with the first sentence. The Appellant's
application for leave to appeal was turned
down by the Regional Court
Magistrate, resulting in his petitioning the High Court for such
leave. The latter Court granted leave
to appeal only in respect of
sentence, hence the appeal presently before us.
Appropriateness
or otherwise of sentence
[3]
In order to arrive at an appropriate sentence, the Regional Court
Magistrate emphasised, correctly in my view, the fact that,
in both
instances, the Appellant made use of a fire-arm. which, in itself, is
a major consideration. He, for that puipose, relied
on the case of
S
v
Mohase
1998(1)
SACR 185 (O). The learned Regional Court Magistrate also mentioned
that the Court has an obligation to pass sentences that
will make the
inhabitants of Kwa-Thema safer, which requirement, therefore, entails
passing sentences that will scare offenders
like the Appellant away
from crimes of the type of which the Appellant was convicted. The
learned Magistrate stated that the victims
in these cases want to see
retribution and he gave the assurance that they were going to receive
it from his Court.
[4] The Regional
Magistrate also took into account the Appellant's personal
circumstances, viz.. that:
(a) the Appellant
was aged 18 at the time of the commission of the offences: and
(b) the fact that he
is a first offender.
The learned Regional
Court Magistrate stated, however, that Parliament had deliberately
enacted that there be a minimum sentence
of fifteen years
imprisonment w'here an accused person is convicted of robbery, in
circumstances such as those in which the Appellant
has been
convicted. The Regional Court Magistrate pointed out. however, that,
as from 1 May 1988. when the Criminal Law Amendment
Act. 105 of 1997
("the Minimum Sentences Act") came into operation, persons
who have committed robbery, in circumstances
similar to those under
which the Appellant committed the two robberies, should be sentenced
to a minimum period of fifteen years
imprisonment, unless substantial
and compelling circumstances exist for the passing of a lighter
sentence.
[5]
Relying on the case of
S
v
Mofokeng & Another
1999(1)
SACR 502 (W), the judgment of STEGMANN. J, as he then was. at
523i-524d. the Regional Court Magistrate held that the Appellant's
youthfulness and absence of previous convictions were ordinary
factors
("gewone
faktore").
which
did not constitute substantial and compelling circumstances. In
fairness to the Regional Court Magistrate, that is precisely
what
STEGMANN. J also held in the following passage, at 523i-524d:
"The
absence of previous convictions, the comparative youthfulness of the
prisoners, the unfortunate factors in their backgrounds,
the probable
effect upon them of the liquor they had taken, the absence of
dangerous weapons, and the fact that the complainant
had not suffered
serious injury, are all factors that a court sentencing a convicted
rapist, in the ordinary course, would weigh
up as substantial factors
relevant to the assessment of a just sentence, and as tending to
mitigate the severity of the punishment
to be imposed. However, in my
judgment, these factors, 'substantial' though they are. are matters
that Parliament must be taken
to have had in mind as
everyday
circumstances
that would
be found present in any or most of the crimes referred to in Part I
of Schedule 2 to Act 105 of 1997. Without emasculating
the
legislation, they cannot be thought of as 'compelling' the conclusion
that a sentence lesser than that prescribed by Parliament
should be
substituted for the prescribed sentence. ... As 1 understand the
legislation [Criminal Law Amendment Act 105 of 1997
(the Minimum
Sentences Ad)], 'substantial and compelling' circumstances must be
factors of an
unusual and exceptional kind
that Parliament cannot be supposed to have had in contemplation when
prescribing standard penalties for certain crimes committed
in
circumstances described in Schedule 2"
[
emphasis
added].
[6]
In
S v Rabie
1975(4)
SA 855 (A), at 857D-E. HOLMES. JA stated the following with regard to
how an appeal on sentence should be approached:
"(1)
In every appeal against sentence, whether imposed by a Magistrate or
a Judge, the Court hearing the appeal
-
(a) should he
guided by the principle that punishment is pre-eminently a matter for
the discretion of the trial Court;
(b) should be
careful not to erode such discretion: hence the further principle
that a sentence should only be altered if the discretion
has not been
judicially and properly exercised:
(2)
The test under (b) is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate
."
[7]
In
S
v
Pillay
1977(4)
SA 531 (A), at 535E-F. TROLLIP. JA explained what must be understood
by the concept of "
misdirection"
on
the part of a court
a
quo.
He
stated that the misdirection:
"must
be of such a nature, degree or seriousness that it shows
,
directly or
inferentially, that the Court did not exercise its discretion at all
or exercise it improperly or unreasonably. Such
misdirection is
usually and conveniently termed one that vitiates the court's
decision on sentence."
[8]
More than a decade later, the SCA dealt with that aspect in
Sv
Malgas
2001(1)
SACR 469 (SCA) per HARMS. JA. at para [9]. 477f-i. giving judgment on
behalf of the Court, thus:
"...
I can see no
warrant for deducing that the legislature intended a court to exclude
from consideration, ante omnia as it were, any
or all of the many
factors traditionally and rightly taken into account by courts when
sentencing offenders. The use of the epithets
'substantial' and
'compelling' cannot be interpreted as excluding even from
consideration any of those factors. They are neither
notionally nor
linguistically appropriate to achieve that. What they are apt to
convey, is that the ultimate cumulative impact
of those circumstances
must be such as to justify a departure. It is axiomatic in the normal
process of sentencing that, while
each of a number of mitigating
factors when viewed in isolation may have little persuasive force,
their combined impact may be
considerable. Parliament cannot have
been ignorant of that. There is no indication in the language it has
employed that it intended
the enquiry into the possible existence of
substantial and compelling circumstances justifying a departure, to
proceed in a radically
different way. namely, by eliminating at the
very threshold of the enquiry one or more factors traditionally and
rightly taken
into consideration when assessing sentence. None of
those factors have been singled out either expressly or impliedly for
exclusion
from consideration."
[9]
Although the Regional Court Magistrate in the present matter was
relying on a High Court judgment and would not have known what
was to
be stated in
Malgas
two
years later, the fact of the matter is that his decision is
incorrect, to the extent that he did not consider youthfulness and
absence of previous convictions as factors relevant to determining
whether or not there were substantial and
compelling
circumstances.
This Court is. therefore, at liberty to interfere with the
Magistrate's judgment on sentence. In any event, it is.
in my view,
disturbingly inappropriate.
[10]
In
R v Swanepoel
1945
AD 444.
DAVIS. AJA, quoted the following from Salmond on
Jurisprudence
.
3
rd
ed, sec 28:
"[t]he ends
of criminal justice are four in number, and in respect of the
purposes so served by it. punishment may be distinguished
as (1)
Deterrent. (2) Preventive, (3) Reformative, and (4) Retributive. Of
these aspects the first is the essential and all important
one. the
others being merely accessory. Punishment is before all things
deterrent, and the chief end of the law of crime is to
make the
evil-doer an example and a warning to all that are like-minded with
him."
The Magistrate in
the current matter omitted the reformative aspect of the purposes of
punishment which, it is by now trite, is
a major consideration. A
first offender is. by definition, one who can easily be
rehabilitated. So also, ordinarily, is a young
person.
[11]
It has to be emphasised that the proverbial triad mentioned in
S
v Zinn
1969
2 SA 527
(A) includes the offender. That is contained in the famous
passage that reads:
"
[wjhat has to he considered is the triad consisting of crime, the
offender and the interests of society.”
[p455]
In
his judgment, the Magistrate has totally disregarded
"the
offender''.
He.
in my view, over-emphasised the question of deterrence and the need
to appease or please the committee.
[12]
Whilst retribution is a very important element in determining an
appropriate sentence, it ought not to be over-emphasised.
In that
regard. CHASKALSON. P (as he then was) said the following, at para
[130]. 52g, in
Sv
Makwanyane
1995(2)
SACR 1 (CC):
"Retribution
ought not to be given undue weight in the balancing process. The
Constitution is premised on the assumption that
ours will be a
constitutional State founded on recognition of human rights."
[13]
Whilst public opinion should play an important part in determining an
appropriate sentence, care should be taken not to over-emphasise
the
need to pass a sentence that will satisfy the community. What was
stated by,
inter
alia
,
CHASKALSON, P, at para [139], LANGA. J. as he then was. at para
[222], 87i-88a and MACHALA. J. at para [255], 91 g. in the
Makwanyane
judgment,
with regard to the need to accommodate the community's or the
public's righteous anger, with succumbing thereto, when
determining
an appropriate sentence, must be heeded. After the latter judgment.
HARMS. JA. stated the following, in
Sv
Mhlakaza
<£-
Another
1997(1)
SACR 515. at 518e-j:
"The
object of sentencing is not to satisfy public opinion but to serve
the public interest ... sentencing policy that caters
predominantly
or exclusively for public opinion is inherently flawed. It remains a
Court's duty to impose fearlessly an appropriate
and fair sentence
even if the sentence does not satisfy the public. In this context the
approach expressed in S
v
Makwanyane &.
Another, supra, at 38-9, paras 87-9 (per CHASKALSON P) applies
mutatis mutandis. Public opinion may have some
relevance to an
enquiry, but, in itself, it is no substitute for the duty invested in
the court; the court cannot allow itself
to be diverted from its duty
to act as an independent arbiter by making choices on the basis that
they will find favour with the
public. That, in the words of
SCHREINER JA, in Rv Karg 1961 I SA 231 (A) at 236B-C. does not mean
that it is:
'wrong that the
natural indignation of interested persons and the community at large
should receive some recognition in the sentences
the courts impose,
and it is not irrelevant to bear in mind that, if sentences for
serious crimes are too lenient, administration
of justice may fall
into disrepute and injured persons may incline to take the law into
their own hands.'
But, he added,
’
righteous
anger should not becloud judgment
’.''
[emphasis
added.]
[14] Before dealing
with what I consider to be an appropriate sentence in respect of each
of the counts, in the present appeal I
must state, categorically,
that I find absolutely no justification for not making the two
sentences run concurrently. The Magistrate
gave no reasons for that
decision, on his part. I am of the view that ten years imprisonment
in respect of each count is a disturbingly
appropriate sentence.
[15] In the
circumstances I make the following order:
1. The appeal
against sentence succeeds in respect of each count.
2. The sentence is
set aside and replaced with the following:
(a) the Appellant is
sentenced to a period of ten years imprisonment, in respect of each
count;
(b) the sentence on
count 2 will run concurrently with the sentence on count 1. resulting
in the Appellant serving an effective
period of ten years
imprisonment.
3. The sentences on
counts 1 and 2 are backdated to 15 August 2000.
J
N M POSWA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I agree
L M MOLOPA (MS)
JUDGE
OF THE NORTH GAUTENG HIGH COURT
A198-2008