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[2022] ZAECGHC 24
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Nqaka v S (CA & R 102/2021) [2022] ZAECGHC 24 (22 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GRAHAMSTOWN
Case
No: CA & R 102/2021
Date
heard: 09 February 2022
Date
delivered: 22 March 2022
In
the matter between
SIPHOMANDLA
NQAKA
APPELLANT
and
THE
STATE
RESPONDENT
APPEAL
JUDGMENT
MFENYANA
AJ
Introduction
[1]
The appellant stood trial in the Regional Court at Humansdorp on a
count of housebreaking
(Count 1) with intent to rob, and robbery with
aggravating circumstances (Count 2). He was found guilty on both
counts and sentenced
to eight years’ imprisonment in respect of
the housebreaking, and twenty years’ imprisonment for the
robbery. The sentences
were to run concurrently.
[2]
He now appeals against the sentence.
[3]
He contends that the court
a quo
erred, particularly in
respect of Count 2, in that the court
a quo
imposed a sentence
in excess of the prescribed minimum without notifying him of its
intention to do so, and without giving reasons
for the decision. He
argues that the sentence is shockingly inappropriate.
[4]
The appellant further contends that the court
a quo
did not
place sufficient emphasis on:
(a)
the fact that the appellant spent two years in prison awaiting trial;
(b)
the fact that he had no previous convictions for violent offences,
and
(
c) the fact that most of the goods stolen during
the robbery were recovered. A
[5]
Finally, the appellant contends that the court
a quo
did not
take into account that the appellant was shot and injured during the
robbery and that the injuries sustained by the complainant
were not
life threatening.
[6]
The central question is whether the court
a quo
misdirected
itself in sentencing the appellant as it did. From the reading of the
notice of appeal, it appears that the appellant
takes no issue with
the sentence of 8 years’ imprisonment imposed in respect of the
Count 1. In any case even if that was
not the case, the sentences
were in any event ordered to run concurrently.
[7]
Robbery with aggravating circumstances carries a prescribed minimum
sentence of imprisonment
of not less than 15 years.
[8]
In sentencing the appellant, the court
a quo
found that there
were no substantial and compelling circumstances which warranted a
deviation from the prescribed minimum sentence
or the imposition of a
lesser sentence and sentenced the appellant to 20 years’
imprisonment
Facts
[9]
The facts leading up to the conviction of the appellant are common
cause, as the appellant
is not challenging the conviction. On 5
September 2018, in the small hours of the morning, the appellant and
his accomplices, armed
with knives, a firearm and a crowbar, broke
and entered into the home of the complainants with the intention to
rob them. While
at the premises, the appellant assaulted the
complainants, Mr Thornton and his wife, tied Mrs Thornton with cable
ties, and robbed
them of their belongings,
to wit
, two
iPhones, and an iPad. The appellant was shot during the scuffle and
subsequently apprehended and stood trial on both charges.
He pleaded
not guilty, and was found guilty as charged.
Sentence
[10]
In sentencing the appellant, the court
a quo
took into account
that the offences committed by the appellant involved an element of
violence. The court further took into account
that Mr Thornton
sustained injuries to his lower lip, gums, elbow and ribs. He also
sustained defensive wounds on the left forearm,
left elbow and on
both feet while trying to defend himself during the attack.
[11]
In imposing sentence, the court placed reliance on the decision in
Malgas
[1]
and
set out the approach to be adopted as follows:
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
minimum
sentence unjust in that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice
would be
done by imposing it, it is entitled to impose a lesser sentence.”
[2]
[12]
Notably, the court considered the judgement in
Matyityi
[3]
in so far as it stipulates that a victim-centred approach must be
followed when considering the appropriate sentence to impose,
where a
minimum sentence is prescribed. What this means is that while there
may be a prescribed minimum sentence to be imposed,
the court must
consider what would be suitable for that specific offender.
[13]
The learned magistrate took into account that the offences committed
by the appellant were committed
in the early hours of the morning
while the complainants were sleeping and that there were also little
children in the house. That
the offences took place in the sanctity
of the complainant’s home against women and children was
considered to be an aggravating
factor by the court
a quo,
and
correctly in my view.
[14]
The question however is whether having considered all of these
factors as the court
a quo
did, it was open to that court to
impose a sentence in excess of the prescribed minimum. Linked to that
enquiry is whether the
court
a quo
could do so without first
apprising the appellant of its intention to do so and without
providing reasons for doing so. In answering
the first leg of this
enquiry, there cannot be any suggestion that the court
a quo
did not apply its mind in imposing the sentence that it did. This
much has in any event been conceded by the appellant, as it was
submitted on his behalf that he does not take any issue with whether
the court
a quo
exercised its discretion but that the
discretion was not exercised judicially.
[15]
A further question is whether it can be said that the court
a quo
did in fact exceed the prescribed minimum; the prescribed minimum in
the case of the appellant is “
imprisonment for a period
not less that 15 years
” (own emphasis). The answer has
to be in the negative.
[16]
In a detailed examination of various judgments
[4]
,
the court
a
quo
surmised that the sentence must reflect the blameworthiness of an
offender and should be proportional to what an offender deserves.
Having considered all these factors, carefully and holistically, in
my view, the court
a
quo
proceeded to impose a sentence of 20 years’ imprisonment.
[17]
The imposition of a lesser sentence is only called for in
circumstances where the court finds
that substantial and compelling
circumstances exist for such a deviation. In the case of the
appellant, the court
a
quo
found that “there are no substantial and compelling
circumstances justifying the imposition of a lesser sentence.”
[5]
[18]
The record shows that the learned magistrate found that there were no
substantial circumstances
justifying the imposition of a lesser
sentence. On that basis she sentenced the appellant to 20 years’
imprisonment. Having
pointed out the features which in its opinion
made the offences which the appellant had been convicted of,
abhorrent, and not justifying
a lesser sentence than that prescribed,
the court
a quo
, took into account that the manner in which
the offences were carried out made them ‘one of the most
serious’ in the
country and could have been much worse had it
not been for the bravery of the Thorntons.
[19]
The imposition of sentence is pre-eminently the terrain of the trial
court. In the absence of
a factual error or a misdirection on the
part of the trial court, the findings of the trial court are presumed
to be correct. The
appeal court will therefore not interfere with the
sentence merely on the ground that it would have imposed a lesser
sentence.
The relevant consideration is whether the sentence is of
such a nature that no reasonable court ought to have imposed it, such
that it amounts to a misdirection by the sentencing court.
[20]
Section 51(2) of the
Criminal
Law Amendment Act
[6]
states:
“
(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional
court or a High Court shall sentence a person who has been
convicted of an offence referred to in –
(a)
Part II of Schedule 2, in the case of –
(i)
a first offender, to imprisonment for a
period not less than 15 years;
(ii)
a second offender of any such offence, to
imprisonment for a period not less than 20 years;
(iii)
a third or subsequent offender of any such
offence, to imprisonment for a period less than 25 years.
[21]
Robbery with aggravating circumstances is an offence listed in Part
II of Schedule 2.
[22]
From this provision it is clear that the court
a quo
was well
within its discretion to sentence the appellant for a period of
imprisonment of not less than 15 years. There can thus
be no merit to
the appellant’s contention that the sentence is shockingly
inappropriate.
[23]
The further aspect of the appellant’s contention in this regard
is that the court
a
quo
ought to have given reasons for exceeding the prescribed minimum
sentence. I have already stated that the court
a
quo
did not exceed the prescribed minimum sentence. It is also not
correct that the court
a
quo
did not justify its decision. It is clear from the record that the
learned magistrate went into great detail in stating what a
serious
offence robbery with aggravating circumstances is. The court also
went further and focused on the specific and identying
features of
the specific offences committed by the appellant. The court found
inter
alia
that the offence was well-planned; that it violated the complainants’
constitutional rights; that it went against the Charter
on Human and
Peoples’s Rights to which South Africa is a signatory; that it
was a clear invasion of the privacy and dignity
of the complainants;
that it was perpetuated with an element of violence and that the
appellant’s conduct showed a flagrant
disregard and disrepect
of the complainant’s rights and did not show any remorse.
[7]
It further considered the impact of the offences on the economy as
more and more people are motivated to leave the country, like
the
Thorntons were, and that the iPad was never recovered although the
cellphones were. That notwithstanding, the court added that
the
complainants were left out of pocket as they had to incur additional
expenses upgrading their security.
[24]
Even if that were not the case, it is trite that while it is
desirable for the sentencing court
to give reasons for a deviation,
there is no duty on the court to do so. Counsel for the respondent
referred me to the decision
of the SCA in
Shubane
v The State
[8]
which, although not on all fours with the present matter, aptly
illustrates the principle there is no requirement in our law that
an
accused person should be forewarned that a sentence in excess of the
prescribed minimum is contemplated. There is therefore
no merit on
this ground.
[25]
I find the appellant’s contention that he was shot and wounded
during the robbery, while
on the other hand downplaying the injuries
sustained by the complainant, to be self-serving. The appellant is
the author of his
own fate. He cannot be made to benefit from his
wrongful action, nor can these be mitigating factors in any way. The
same cannot
be said for the complainants, who through no fault of
their own found themselves having to fight for their lives against
the brazen
attack hurled by the appellant against them. The appellant
cannot benefit from the fact that the complainant put up a fight and
escaped with minor injuries. That cannot be equated to the
complainants escaping unscathed. The court
a quo
detailed the
psychological trauma experienced by the complainants. This ground
must also fail.
[26]
Regarding the fact that the appellant had been in custody awaiting
trial for approximately two
years, it appears that the court
a quo
merely paid lip service to this aspect. The appellant was in custody
awaiting trial and this ought to have been taken into account
by the
court
a quo
. It was not. Reference by the court
a quo
,
to
S v Vilakazi
in this regard appears to me to not have
addressed the issue, in my view, a misdirection sufficient to warrant
interference by
this court.
[27]
The approach adopted in
S
v Radebe
[9]
seems to me to be the correct approach. In that case the Supreme
Court of Appeal per Lewis JA stated:
“…
(t)he
period in detention pre-sentencing is but one of the factors that
should be taken into account in determining whether the
effective
period of imprisonment to be imposed is justified: whether it is
proportionate to the crime committed. Such an approach
would take
into account the conditions affecting the accused in detention and
the reason for a prolonged period of detention.”
[10]
[28]
It is not apparent from the record that these were considered by the
court
a quo.
However the learned Judge of Appeal went further
to state that:
“…
the test
is not whether on its own that period of detention constitutes a
substantial or compelling circumstance, but whether the
effective
sentence proposed is proportionate to the crime or crimes committed:
whether the sentence in all the circumstances, including
the period
spent in detention prior to conviction and sentencing, is a just
one.”
[11]
[29]
Thus it is necessary to consider whether the sentence imposed by the
court
a quo
would be impacted in any way, had this been a real
consideration by the court
a quo
. In my view, it would be. A
period of two years in custody whilst awaiting trial is a substantial
amount of time. In my view the
court
a quo
ought to have taken
it into account in imposing the sentence of 20 years’
imprisonment. The court
a quo
should have antedated the
sentence, taking into account the pre-sentence detention period of
two years.
[30]
There is no indication whatsoever that the court
a quo
exercised its discretion arbitrarily so as to warrant interference
with the sentence imposed, on appeal. I am therefore not persuaded
that there was any misdirection in this regard. While this is so, it
is my view that the sentence should have been antedated. To
the
extent that the sentences were not antedated, the following order is
made:
1.
The sentence of 8 years’
imprisonment in respect of count 1 (housebreaking with intent to rob)
is confirmed.
2.
The sentence of 20 years’
imprisonment (robbery with aggravating circumstances) is hereby
confirmed.
3.
The sentences are to run
concurrently.
4.
The sentences are antedated to 5
September 2018.
SM MFENYANA
ACTING JUDGE OF THE HIGH
COURT
I agree.
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCE
Counsel for the
appellant:
Mr Geldenhuys, instructed by
Legal Aid Board,
Grahamstown.
Counsel for the
respondent: Mr
Zantsi, instructed by the Director of Public
Prosecutions,
Grahamstown.
[1]
2001
(1) SACR 469 (SCA)
[2]
At
para 25e
[3]
2011
(1) SACR 14 (SCA)
[4]
Record,
pages 20 - 21
[5]
Record,
pages 27, para 20
[6]
Act
105 of 1997
[7]
Record,
pages 22- 26
[8]
(073/14)
[2014] ZASCA 148
(26 September 2014)
[9]
2013
(2) SACR 165 (SCA)
[10]
at 170 para 14b
[11]
at para 14c