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[2022] ZAECBHC 34
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Malman v S (CA&R 27/2021;RCL-118/19) [2022] ZAECBHC 34 (8 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO: CA&R 27/2021
REGIONAL
COURT CASE NO.: RCL-118/19
In
the matter between:
THOBANI
MALMAN
APPELLANT
and
THE
STATE
RESPONDENT
APPEAL
JUDGMENT
CHITHI
A
J:
[1]
The
appellant together with his co-accused, who is not party to this
appeal, stood charged in this matter before the regional court
for
the Eastern Cape region held at Mdantsane with one count of robbery
with aggravating circumstances read with the provisions
of ss 51(2),
52A and 52B of the Criminal Law Amendment Act
[1]
(‘CLAA’).
[2]
The robbery allegedly took place on or about 14 July 2019 at or near
NU
17 Mdantsane, in the regional division of the Eastern Cape,
wherein the appellant together with his companion, unlawfully and
intentionally
assaulted one Nangamso Booi and with force took from
him one Mobicel cellphone valued at R1200.00, property in his lawful
possession.
The aggravating circumstances being the wilding of the
knife.
[3]
On 28 January 2021 after the trial the appellant and his companion
were
found guilty as charged. On 29 January 2021, the appellant
together with his companion were sentenced, with the appellant having
been sentenced to undergo 15 years’ imprisonment and his
companion to undergo 17 years’ imprisonment. The appellant’s
appeal is only against his sentence, he having been granted leave to
appeal against his sentence by the regional court on 16 February
2021.
[4]
The appeal is premised broadly on the following grounds:
4.1
A sentence of 15 years imprisonment which was imposed by the learned
presiding judicial officer
induces a sense of shock considering the
facts of the case as a whole. Accordingly, he erred in
over-emphasising the legal convictions
of the community over the
personal circumstances of the appellant, especially as the appellant
had no previous convictions.
4.2
The court erred in failing to take into account the relative
youthfulness of the appellant at
the time of the commission of the
offence.
4.3
The court erred further in not considering the period of 10 months
which the appellant spent awaiting
his trial which was between July
2019 and May 2020 when he was released on warning, since the Wesbank
Correctional Centre where
he was detained awaiting his trial was
declared a Covid-19 hotspot. Consequently, the court erred in not
offsetting the period
of 10 months which the appellant spent in
prison awaiting trial to the sentence of 15 years imprisonment.
4.4
The court erred in not taking into consideration the prevailing
circumstances at the time of the
sentencing of the appellant,
particularly the Covid-19 variant which was exacerbated by congestion
and overcrowding in correctional
facilities, in particular Wesbank
Correctional Centre which was at the time declared to be a hotspot
and a super spreader of Covid-19.
4.5
The court erred in not balancing the fact that the appellant was the
first offender with the fact
that although the appellant and his
companion had been alleged to have been in possession of a knife or
knives, such knife or knives
were not used.
4.6
The court erred in not considering that when the appellant and his
companion took the cell phone
there was no violence perpetrated.
4.7
The court erred in finding that the appellant failed to show that
there were substantial and compelling
circumstances justifying the
court to deviate from imposing the prescribed minimum sentence when
all the personal circumstances
of the appellant were considered
cumulatively.
[5]
The appellant's grounds of appeal were further buttressed in the
appellant’s
heads of argument as follows:
5.1 The
appellant only threatened the complainant with a knife by inspiring a
belief in the complainant that if
he does not release the phone the
knife could be used.
5.2 The
court
a quo
erred in not properly taking into consideration
that the degree of violence involved in the complainant’s
robbery was limited.
5.3 The
court
a quo
further erred in not taking into consideration
that the complainant was threatened rather than physically assaulted
and injured
and that ought to have been weighed in determining
whether a departure from the prescribed minimum sentence is not
warranted.
5.4 The
appellant’s personal circumstances which included the fact that
he was 27 years old, was gainfully
employed, had one minor child, was
a first offender, had been in custody awaiting trial for 10 months
should have been taken together
with the fact that the complainant’s
cellphone was recovered and the complainant did not suffer any
physical injuries. All
these factors, considered cumulatively, should
have led the trial court to conclude that there were substantial and
compelling
circumstances justifying the court to depart from imposing
the prescribed minimum sentence of 15 years imprisonment.
5.5 The
court
a quo
ought to have found that the sentence of 15 years
imprisonment is unduly harsh and that such a sentence is
disproportionate to
the crime of which the appellant was convicted.
5.6 A
sentence of 8 years imprisonment backdated to the date of his
sentence would satisfy all the aims of punishment
and be just.
[6]
Ms. Ngxingwa
, on behalf of the respondent, argued that the
trial court correctly considered all mitigating and aggravating
circumstances when
it concluded that no substantial and compelling
circumstances were present to justify a lesser sentence other than 15
years imprisonment.
Consequently, she supported the sentence which
was imposed by the trial court considering aggravating factors which
were present
during the commission of the offence and submitted that
this court should dismiss the appeal against sentence.
[7]
It is a well-established principle that a court
should not deviate from imposing the prescribed minimum sentence for
flimsy reasons
and speculative hypothesis favourable to the offender.
Before imposing the sentence, which is sought to be assailed by the
appellant, the trial court considered factors which included
among
other factors the prevalence of the offence in the area of
jurisdiction and country-wide in general. This included the fact
that
appellant and his companion had targeted the complainant due to his
young age and vulnerability. The trial court did not consider
the
recovery of the cellphone as a factor favourable to the appellant and
his companion. Instead, the court
a quo
credited it to the
prompt response of the police after the robbery was reported to them.
The trial court specifically recorded
that ‘the appellant was
found wanting and had no option but to divulge the whereabouts of the
phone.’ The trial court
regarded the production of knives to
induce fear on the complainant, and found that knives would be used
if the complainant offered
any resistance as an aggravating factor.
The trial court also considered that the appellant was 27 years of
age at the time of
the commission of the offence, was employed, had
one child, was a first offender and was in custody for 10 months
awaiting his
trial. Essentially, the trial court considered the
totality of all the factors including the traditional triad
consisting of the
nature of the offence, the personal circumstances
of the appellant and the interests of society and found that there
were no substantial
and compelling circumstances entitling it to
deviate from the prescribed minimum sentence of 15 years.
[8]
It
is trite that sentencing resides pre-eminently within the discretion
of the trial court. In
S
v Malgas,
[2]
Marais JA enunciated the test as follows:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh. In doing so,
it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance. As it
is said, an appellate Court is at
large. However, even in the absence of material misdirection, the
appellate court may yet be
justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence of
the trial court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that it
can properly be described as ‘shocking’,
‘startling’ or ‘disturbingly inappropriate.
All
factors (other than those set in D above) traditionally taken into
account in sentencing (whether or not they diminish moral
guilt) thus
continue to play a role; none is excluded at the outset from
consideration in the sentencing process. The ultimate
impact of all
circumstances relevant to sentencing must be measured against the
composite yardstick (‘substantial and compelling’)
and
must be such as cumulatively justify a departure from the
standardised response that the Legislature has ordained. If the
sentencing court on consideration of the circumstances of the
particular case is satisfied that they rendered the prescribed
sentence
unjust and that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice would be
done by imposing that sentence, it is entitled to impose a lesser
sentence.’
[9]
In this case the trial court imposed the prescribed minimum sentence
after
it found that there were no substantial and compelling
circumstances entitling it to deviate from imposing such sentence as
it
was obliged to. In the circumstances, I find that there was no
material misdirection on the part of the trial court in finding that
there were no substantial and compelling circumstances entitling it
to deviate from imposing the prescribed minimum sentence of
15 years
imprisonment and thus imposed it.
[10]
This, however, is not the end of the enquiry. This court sitting as a
court of appeal
even in the absence of any
material misdirection
may yet be justified
in interfering with the sentence imposed by the trial court. It may
do so when the disparity between the sentence
of the trial court and
the sentence which the appellate court would have imposed, had it
been the trial court, is so marked that
it can properly be described
as ‘shocking’, ‘startling’ or ‘disturbingly
inappropriate.
I find that
there is a
marked
disparity between the sentence of
the trial court and the sentence which this court would have imposed
had it been the trial court.
It is so marked that it can properly be
described as disturbingly inappropriate.
This, therefore,
means that this warrants an interference by this court with the
sentence which was imposed by the trial court.
[11]
It is common cause that when the robbery was carried out minimum
force was used. What happened
is that after the struggle between the
complainant and the appellant’s companion, the appellant drew
out his knife and asked
his companion to take out his knife and hand
it over to him so that he could fix something wrong with his knife.
Other than seeing
the knives and letting go of his cell phone there
is nothing which was done with the knives which the appellant and his
companion
produced. The manner in which the knife was wielded, in
these circumstances, was markedly less than the type of aggression
frequently
associated with armed robberies. The cellphone concerned
was not disposed of, but it was at the instance of Mr Bongani Gxidi
that
the phone was used as collateral for R190.00 which the appellant
borrowed from Mr Gxidi. Although the cellphone was not recovered
through any effort on the part of the appellant, what is significant
is that the complainant did lose this asset permanently. The
value of
the cellphone was only a sum of R1200.00, in addition to the fact
that it was recovered. The fact that after the complainant
came out
of the store, he went looking for the appellant and his companion
amply demonstrates the absence of fear on the part of
the complainant
after the incident, and that this was robbery of an unusual kind.
[12]
H
aving regard
to what the value of the
cellphone was, that the cellphone was not disposed of, that the
cellphone was recovered, that minimal
physical violence was used in
carrying out the robbery, and that the appellant spent a period of 10
months awaiting trial
I am of the view that a
sentence of 15 years imprisonment as imposed on the appellant is
unjust and disproportionate
to the crime for which the
appellant was convicted, to the appellant and the needs of society.
[13]
Considering all relevant factors, I am of the view that a period of 9
years’ imprisonment
would satisfy the aims of punishment. This
would be fair to society, the victim, and the appellant in the sense
that it leaves
the door open to the possibility of the appellant
being rehabilitated.
[14]
In the result I propose to make the following order:
(1)
The appeal against sentence is upheld as set out below.
(2)
The sentence imposed by the regional court is set aside and the
following is substituted
for it:
The Appellant is
sentenced to undergo 9 years’ imprisonment.
(3)
In terms of
Section 282
of the
Criminal Procedure Act 51 of 1977
the
substituted sentence is antedated to 29 January 2021, being the date
on which the appellant was sentenced.
M. M. CHITHI
ACTING JUDGE OF THE
HIGH COURT
I
concur, and it is so ordered.
A.
GOVINDJEE
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel for the
Appellant :
Ms.
N. Mthini
Instructed
by
: Legal Aid, South
Africa
King Williamstown Justice
Centre
2
nd
Floor, Old
Mutual Building
Cnr Cathcart and Maclean
Street
King Williamstown
REF.: N. Dyantyi
Counsel for Respondent
:
Adv. N. Ngxingwa
Office of the Director:
Public Prosecutions, Eastern Cape
5 Tourism House
Palo Avenue
Bhisho
Heard
on:
: 02 November 2022
Delivered
: 08 November 2022
[1]
Act
105 of 1997.
[2]
2001
(2) SA 1222
(SCA) para 12 and 25
F,
G, I
.