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[2022] ZAECBHC 36
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Mthi v S (CA& R 6/2020) [2022] ZAECBHC 36 (2 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, BHISHO
NOT
REPORTABLE
Case
no:
CA& R 6/2020
In
the matter between:
SAKHUMZI
MTHI
Appellant
and
THE
STATE
Respondent
EX-TEMPORE
JUDGMENT
Govindjee
J
[1]
The appellant was found guilty of the
following offences:
a)
Robbery with aggravating circumstances, in
that he assaulted a 72-year-old male person on 16 October 2012 and
forcibly took various
items from him, using a firearm in the process
and seriously injuring the complainant.
b)
Contravention of the Firearms Control Act,
2000 (‘the Act’), in that he was found to be in unlawful
possession of a
semi-automatic pistol.
c)
Contravention of the Act by being in
unlawful possession of 36 rounds of live ammunition.
d)
Robbery with aggravating circumstances, in
that he assaulted an 82-year-old male on 9 November 2012 and forcibly
took various items
from him by threatening him with a firearm.
[2]
The court
a
quo
was unable to find substantial and
compelling circumstances to deviate from the prescribed minimum
sentences for the various offences.
The presiding magistrate appears
to have considered the fact that both complainants were robbed at
their homes to be an aggravating
feature of these offences. Fifteen
years’ imprisonment was imposed for each of the robbery
convictions, as well as for the
unlawful possession of the firearm,
the sentences to run concurrently. Five years’ imprisonment was
imposed for the unlawful
possession of live ammunition. In total, the
appellant was sentenced to direct imprisonment for a 20-year period.
Following a successful
application for condonation, leave to appeal
against sentence was granted during 2019.
[3]
It
is trite that the imposition of sentence is pre-eminently a matter
for the discretion of the trial court. This means that the
trial
court is free to impose whatever sentence it deems appropriate
provided that it exercises its discretion judicially and properly.
Accordingly, the trial court must impose a sentence on the correct
facts and must take the correct legal position into account.
The test
in a criminal appeal is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate.
As the
Court held in
S
v Pillay
:
[1]
‘
As
the essential enquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong but whether the
Court in
imposing it exercised its discretion properly or judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence: it 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 exercised it
improperly or unreasonably. Such a misdirection
is usually and
conveniently termed one that vitiates the court’s decision on
sentence.’
[4]
It
remains open for a Court of appeal to interfere with a sentence that
is excessive or disturbingly inappropriate. The manner in
which the
Court evaluates this possibility is to consider all the relevant
circumstances as to the nature of the offence committed
and the
person of the accused, before determining what a proper sentence
ought to be. If the difference between that sentence and
the sentence
actually imposed is so great that the inference can be made that the
trial court acted unreasonably, and therefore
improperly, the Court
of appeal will alter the sentence.
[2]
If the cumulative effect of a sentence is too severe, that will also
constitute a sentence that is disturbingly inappropriate.
[3]
[5]
The appellant had previously been found
guilty of unlawful possession of a firearm and ammunition without a
licence, and declared
unfit to possess firearms during 2004. He was
46-years of age at the time of sentencing in this matter and had been
working on
a part-time basis earning minimal income. He had two minor
children, who lived with their mothers, and offered them limited
financial
support. He had been in custody for almost two years at the
time of his sentencing.
[6]
The state argued that the prior
convictions, location of the offences and age of the complainants
served as aggravating features.
In addition, one of the complainants
had suffered physical injuries at the hands of the appellant, so that
deviation from the prescribed
minimum sentences was unwarranted.
[7]
The appellant argued, in essence, that the
sentence imposed was strikingly inappropriate and disproportionate to
the mitigating
factors present. I disagree. The appellant was
convicted of various offences for which the legislature has imposed
15-year minimum
periods of imprisonment. The court
a
quo
cannot be criticised for having
failed to identify any substantial and compelling circumstances.
Indeed, none appear to be present
and the legislature’s
intention in setting prescribed periods of imprisonment would be
negated by any decision to the contrary.
There is no weighty
justification or truly convincing justification for departing from
the prescribed minimum sentences in the
circumstances of the various
offences committed in this instance. Each of the individual sentences
imposed cannot be held to be
disproportionate to the crime, the
criminal and the needs of society, so that an injustice was done by
imposing those sentences,
bearing in mind that the legislature has
singled out these crimes for severe punishment. The notice of appeal
did not suggest otherwise.
[8]
This leaves the issue of the cumulative
effect of the sentence. It is true that the 20 years imposed, when
taken together with the
two years spent in custody prior to
sentencing, amounts to only three years’ less than the sentence
of 25 years imprisonment,
which is a sentence reserved for
exceptional circumstances. The court
a
quo
imposed the prescribed minimum
sentences for the various offences and considered the cumulative
effect in ordering that the robbery
and firearm offences run
concurrently, to avoid an excessive total period of imprisonment. The
court
a quo
cannot be faulted in that respect and, given the nature of the
offences, the interests of the offender and society, the outcome
is
not disturbingly inappropriate or so severe as to warrant reduction.
The appellant, who had a previous firearm-related conviction,
made
use of a firearm to rob two older persons in their homes, seriously
injuring one of the victims in the process. The sentencing
court
exercised its discretion judicially in the circumstances, and any
difference between what this court might consider to have
been
appropriate, and the sentence imposed, is not so great so as to
warrant any interference.
Order
[9]
The appeal is dismissed.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered.
M.
CHITHI
JUDGE
OF THE HIGH COURT
Heard
:02
October 2022
Delivered
:02
October 2022
Appearances:
Counsel
for the Appellant:
Ms N. Mthini
Legal Aid South Africa
King William’s Town
Justice Centre
043 604 6600
Counsel
for the Respondent:
Ms N. Ngxingwa
Office of the Deputy
Director of Public Prosecutions
Phalo Avenue
Bisho
040 608 6815
[1]
S
v Pillay
[1977]
4 All SA 713
(A) at 717;
1977 (4) SA 531
(A) at 535F-G.
[2]
S
v Salzwedel
[2000]
1 All SA 229
(A) para 10.
[3]
S
v Whitehead
[1970]
4 All SA 340
(A).