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[2010] ZAGPPHC 112
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Mphasane and Another v S (A376.07) [2010] ZAGPPHC 112 (7 September 2010)
IN
THE NORTH GAUTENG HIGH COURT
(PRETORIA)
CASE
NO: A376.07
DATE:
07/09/2010
In
the matter between
ABRAM
MPHASANE
First
Appellant
PUSETSO
KHANY
Second
Appellant
and
THE
STATE
Respondent
JUDGMENT
1.
On
10 January 2005 the first and second appellants were convicted on a
charge of robbery with aggravating circumstances by the Regional
Court sitting at Benoni. Consequently each was sentenced to a 15 year
term of imprisonment. In addition both were declared unfit
to possess
a firearm.
2.
This
appeal lies against both the conviction and sentence in respect of
each appellant.
3.
Mr
Seabi, instructed by the Legal Aid Board, appeared for both
appellants. His heads of argument were filed late because of
circumstances
beyond his control, and accordingly the application for
condonation in this regard was successful.
4.
In
his heads of argument Mr Seabi confined the submissions on behalf of
the appellants to the issue of sentence only. At the outset
of the
hearing we enquired whether the appeal in respect of the issue of the
convictions was being abandoned or not. It transpired
that counsel,
in the exercise of his professional judgment, was inclined to the
view that the appeal in respect of the convictions
was unassailable
and for that reason only the appeal in respect of sentence would be
pursued.
5.
Be
that as it may, we have nevertheless carefully considered the
totality of the evidence before the trial court which, in summarised
form, reveals the following.
6.
The
alleged offence was committed on Thursday 14 October 2004 at Benoni.
At between 08:00 and 08:30 that morning the complainant,
Mr Makate
Abel Kgapola (also the first witness for the State in the court
below), was on his way along Voortrekker Street when
both accused
("the appellants"), who had approached him from the
opposite direction, i.e. from the front, requested him
for a loose R1
coin which they needed to play pool or snooker. This occurred in
close proximately to the taxi rank at the bottom
end of Voortrekker
Street and the complainant was alone at the time.
7.
The
complainant told the appellants that he did not have money. Thereupon
the second appellant produced a firearm from the front
of his
trousers (presumably a revolver or pistol), audibly "bridged"or
cocked it, and pointed it at the complainant.
The complainant saw
that it was black in colour but he could not say what the caliber
was. He took it to be a real firearm.
8.
Whilst
the complainant was held at gunpoint by the second appellant, the
first appellant proceeded to frisk him. Both the appellants
remained
in front of the complainant. The first appellant took possession of
the complainant's Nokia 1100 cellphone (valued at
approximately R1
100,00), which he had been carrying in his left trouser pocket. He
also had R160,00 in loose notes in his right
back pocket but the
first appellant, whilst touching his trousers, did not find the
money.
9.
After
being relieved of his cellphone the complainant snatched at the
second appellant's firearm in an attempt to wrest it from
him. A
brief and futile struggle ensued.
10.
Then
the appellants set off on foot, together running up the street. The
complainant set after them at close distance - estimated
by the trial
court to be approximately 10 metres until they entered Cranbourne
Avenue. At this juncture the complainant ceased
the pursuit and
turned to telephone his brother to assist him.
11.
Although
the record is silent as to how the complainant accomplished this, it
is clear that he did speak to his brother, Mr Majahladi
Figeu Kgapola
("Kgapola") who rushed to his assistance. They met in
Voortrekker Street at the Lakeside Mall. The complainant
explained
the attire of the his assailants to Kgapola and then proceeded to
walk directly to Cranbourne Avenue along the left hand
side of
Voortrekker Street.
12.
The
complainant and Kgapola came upon the appellants in Cranbourne Avenue
at the Kids Haven, approximately 45 minutes after the
complainant had
been apprehended as aforesaid. The appellants were found at the
entrance to Kids Haven, where the complainant had
seen them go to
when he earlier turned to enlist the assistance of his brother. The
appellants were in the company of others and
were on the steps in
front of the entrance. The complainants' pointed his two assailants
out to Kgapola, a private investigator,
who then drew his firearm and
held it face down while he and the complainant approached the
appellants.
13.
In
their approach to the appellants both the Kgapola brothers heard one
of the appellants warn the other of their approach. The
evidence
variously describes words such as "Here is this guy. Come."
and "Here comes this gentlemen, these two gentlemen"
as
having been said.
14.
Upon
the appellants having become aware of the approach by the complainant
and Kgapola they evidently tried to escape. Two bystanders
slipped
into the entrance of Kids Haven but before the appellants could
follow, Kgapola was upon them and ordered them to remain
stationary
so that he could search them. He had also trained his cocked firearm
on them. Braving animosity from bystanders Kgapola
ordered the
appellants to lie down on their stomachs and they were then searched.
The search only yielded glue and plain cigarettes.
The stolen Nokia
cellphone and the firearm were not found.
15.
Thereafter
Kgapola telephoned the Police, who later arrived and arrested the
appellants.
16.
The
appellants were both positively identified by the complainant as his
assailants. In the first place he testified that he had
ample
opportunity to observe the faces of both while the robbery took
place, and, secondly, he testified about the clothing the
appellants
were wearing on the day in question. The complainant also identified
the first appellant by track suit pants with stripes
on the sides of
the legs, and second appellant by means of a black track suit top and
blue denim jeans, which they respectively
wore that day. In addition
the second appellant sported a dreadlocks hairstyle. When the
appellants were later confronted and arrested,
they were still
dressed in this apparel. Kgapola's evidence confirmed that his
brother (the complainant) was capable of identifying
the appellants
by their appearance, although he was confused about their dress. He
did, however, recall the striped track suit
pants one of the
appellants wore.
17.
The second appellant took issue with the State about the clothing he
wore on the day in question. He contended that he was wearing
a
creamish T-shirt and not a black track suit top. Although nothing
turns on this, the trial court, incidentally, remarked that
the
T-shirt referred to was grey in colour. The complainant did earlier
express the uncertain view that the first appellant might
have been
wearing a grey T-shirt.
18.
The
trial court, understandably - in view of the failure by the first
appellant to contest the evidence concerning identification
and the
failure by the second appellant to take issue with the evidence
concerning his hairstyle, at least-found that despite the
application
of the cautionary rules applicable to the evidence of a single
witness and evidence about the issue of identity that
the appellants
had been satisfactorily identified.
19.
After
considering all the evidence the trial court rejected the brief
versions put up by the appellants, who denied having robbed
the
plaintiff. In my view the appellants were each properly and correctly
convicted of the charge of robbery with aggravating circumstances.
20.
This
offence is referred to in part II of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 ("the Act"). In terms
of section
51 (2)(a)(i) of the Act the offence carries with it a minimum
sentence of 15 years imprisonment, unless the court, in
terms of
section 51 (3)(a), is satisfied that substantial and compelling
circumstances exist which justify the imposition of a
lesser
sentence.
21.
The
court a
quo
sentenced
both appellants to imprisonment for a term of 15 years pursuant to
the provisions of the Act, not having found that substantial
and
compelling circumstances which justify the imposition of a lesser
sentence exist.
22.
The
correct approach by our courts to the consideration and application
of minimum sentences prescribed by the Act was authoritatively
laid
down in S
v
Malgas
2001 (2) SA 1222
SCA.
A
succinct summary of the applicable principles is contained at pp
1235E-1236E of the report, and does not bear repetition here.
23.
The
trial court heard address from the appellants' legal representative
concerning the matter of sentence. This revealed that the
first
appellant was 19 years old and the second appellant 18; both were
single; both were jobless; both were homeless and living
on the
streets (so-called "street kids"); both were without
income; both were only schooled to standard 5. These considerations
provided a brief sketch of the personal circumstances of the
appellants. No evidence was adduced in respect of any other factor
relevant to the question of sentence. When the trial court enquired
whether any "material and compelling circumstances"
(clearly intended to be a reference to compelling and substantial
circumstances alluded to in section 51(3)(a) of the Act) could
be
offered by the defence, the response was "none". It is
plainly clear from the record that the trial court did not
consider
the personal circumstances aforesaid sufficient to constitute
compelling and substantial circumstances envisaged by the
Act. This
is expressly confirmed by the judgment of the trial court.
24.
Counsel
for the appellants submitted that the trial court had erred in
under-emphasising the personal circumstances of the appellants
and
over-emphasising certain sentencing objectives. He submitted that
compelling and substantial circumstances should have been
found to
exist, and hence advocated the substitution of the sentence imposed
by a lesser one, which he suggested should appropriately
be one of
correctional supervision.
25.
In
studying the record of the trial proceedings two features of the
approach towards sentencing adopted by the trial court come
to the
fore. Firstly, the court went to pains to emphasise that senseless
loss of life is often the result of armed robbery and
that this fact
has brought about a pervasive fear in the minds of ordinary people to
freely venture into the domain of the public.
Assuming the
correctness hereof this consideration would certainly justify
imprisonment as an appropriate sentence, even for a
first offender.
As the court correctly remarked the Legislature had intervened and
prescribed sentences for offences like armed
robbery. The prescribed
sentence is to be regarded as a sentence that should ordinarily be
imposed, in the absence of weighty justification
of a lesser sentence
(Malgas
supra atp 1235G).
However,
there is no indication whatever that the trial court took cognisance
of the fact that the robbery in this instance was
committed without
the infliction of any physical harm to the complainant.
26.
Secondly, the trial court also placed emphasis on the subjective
impression it had gained that the appellants, far from appearing
destitute, actually seemed well-looked after and rather well-dressed.
This was a recurring theme throughout the course of the trial.
In
view of the fact that the appellants were unemployed their
inexplicable state of seeming well-being was viewed by the court
a
quo
as
being "significant", to, at least, the extent that "it
makes you think". Disturbingly this impression in
the mind of
the trial court raises the unavoidable spectre of an unexpressed
suspicion that the appellants had all along been enjoying
the fruits
of a criminal lifestyle. Not only is such a suspicion wholly
unjustified on the admissible evidential material which
served before
the trial court, but it would probably furthermore of necessity have
negatively influenced a dispassionate and objective
consideration of
the question as to whether substantial and compelling circumstances
in the case of the appellants existed.
27.
Taking
the aforesaid into account and bearing in mind that the personal
circumstances of both appellants undeniably show that they
are from
extremely impoverished and disadvantaged backgrounds, coupled with
the fact that the commission of the crime did not involve
the
infliction of physical harm on the complainant, I am on reflection of
the view that the trial court misdirected itself in concluding
that
there were no "compelling and material circumstances"
present.
28.
The
gravity of the offence committed by the appellants can never be
gainsaid. However, I am convinced that the prescribed sentence
of 15
years imprisonment imposed upon the appellants in the circumstances
of this particular case is unjust in the sense that it
is
disproportionate to the crime, the criminals and the legitimate needs
of society. It should be interfered with as being excessive.
29.
The
relative youthfulness of the appellants, the fact that they are first
offenders, their other personal circumstances, the nature
and limited
extent of the harm occasioned by the commission of the offence, and
the fact that they were remanded in custody for
a period of almost 3
months before they were convicted and sentenced, cumulatively taken,
to my mind constitute compelling and
substantial circumstances. I
regard a sentence of imprisonment for a period of 9 years as
appropriate.
30.
Two further observations are apposite. The first appellant did not
sign the special power of attorney required for this appeal.
It is
clear that throughout he intended pursuing the appeal, and the fact
that he did not personally argue the appeal has not been
prejudicial
to him in any way. Mr Seabi advanced the cause of both appellants
throughout, and it is in the interests of justice
that the order I
intend making also includes the first appellant. Finally - at risk of
unnecessary repetition - it goes without
saying that the trial
court's declaration that the appellants are unfit to possess a
firearm remains intact.
The
following is ordered:
1
.
The
appeal of both appellants against their conviction is dismissed.
2.
The
appeal of both appellants against the sentences imposed upon them is
upheld and the sentence of the court a
quo
is
set aside and substituted with the following sentence:
"First
and second appellants are each sentenced to 9 (nine) years
imprisonment".
3.
The sentence is antedated to the 10 January 2005.
A
P LEDWABA
JUDGE
OF THE HIGH COURT
I
concur,
G
W
ALBERTS
ACTING
JUDGE OF THE HIGH COURT