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[2011] ZASCA 151
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Muller and Another v S (855/10) [2011] ZASCA 151; 2012 (2) SACR 545 (SCA) (27 September 2011)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
855/10
In
the matter between:
MARAWAAN MULLER
….....................................................
First
Appellant
PETER FISHER
…...............................................................
Second
Appellant
v
THE STATE
…................................................................................
Respondent
Neutral
citation:
Muller v The State
(855/10)
[2011] ZASCA 151
(27
September 2011)
Coram:
Cloete, Ponnan and Leach JJA
Heard:
26 August 2011
Delivered:
27 September 2011
Summary:
Criminal procedure ─ appellants
convicted on three counts of robbery with aggravating circumstances ─
effective sentence
of 30 years’ imprisonment imposed by trial
court ─ such a sentence reserved for particularly heinous
crimes which these
were not ─ effective sentence reduced to 18
years’ imprisonment.
___________________________________________________________
O R D E R
___________________________________________________________
On appeal from:
Western Cape High Court (Cape
Town) (Desai J and H J Erasmus AJ sitting as a court of appeal):
The order of the court a quo is set aside and replaced
with the following:
‘
(a) The appeal succeeds only
to the extent set out in (b) below.
(b) In respect of counts two and three, it is ordered
that six years of the period of ten years’ imprisonment imposed
on each
such count is to run concurrently with the ten years’
imprisonment imposed on count one.
(c) The sentences are otherwise confirmed.’
J U D G M E N T
___________________________________________________________
LEACH JA (CLOETE and PONNAN JJA concurring)
[1]
This case
provides proof of the truth of the old adage that ‘the wheels
of justice grind exceeding slow’. Arising from
incidents which
occurred in mid-1995, the two appellants were tried in the regional
court on three charges of robbery with aggravating
circumstances. On
15 May 1996, they pleaded guilty to all charges and were convicted on
their plea. The following day they were
each sentenced to 10 years’
imprisonment on each count, resulting in an effective sentence of 30
years’ imprisonment.
[2] The appellants unsuccessfully appealed against the
severity of their sentences to the High Court, Cape Town. Their
appeal was
dismissed on 3 December 1996. Subsequently, after
considerable delay and in circumstances unnecessary to detail for
purposes of
this judgment, the first appellant launched an
application in the high court in December 2006, seeking leave to
appeal to this
court against his sentence. His application, heard on
23 January 2007, was successful. A year later the second appellant,
having
learnt of the success of the first appellant, also applied for
leave to appeal. Although no explanation was offered for his delay
in
seeking such leave, the high court, in granting the application,
reasoned that as the first appellant was to appeal, no harm
would be
done in allowing the second appellant to do so as well. Be that as it
may, a further three years passed before the appeal
was eventually
heard in this court. I do not know the cause of this further delay
although it seems, at least in part, to have
been due the record
having gone missing at some stage.
[3] In these circumstances, the appellants now appeal to
this court solely against their sentences more than 15 years after
they
were imposed and more than 14 years after their appeal was
dismissed in the high court. However, as the outcome will show, it is
for them a case of better late than never.
[4] The three robberies committed by the appellants were
carried out within a period of less than a month in a localised area
having
a radius of about two kilometres. Each was committed at
gunpoint after the two appellants, and at least one other accomplice,
had
entered the business premises of the complainant on a false
pretext. Details of each robbery are as follows:
(a) The first incident, although the subject of count
three of the indictment, occurred on 13 May 1995 at the SR Factory
Shop in
Salt River to which access was gained when the first
appellant asked if he could be allowed in to use the toilet. The
person in
charge, Paul October, who was some 68 years of age, was
then threatened with a firearm and tied up. The appellants proceeded
to
steal clothing to the value of approximately R33 400 before
fleeing from the scene in a motor vehicle that was waiting for them.
(b) Eleven days later, on 24 May 1995, the appellants
stole electronic equipment valued at R62 000 from the Victoria Road,
Woodstock
premises of a private company, Tecnotronics, after the
employee in charge, Mohammed Gaibie, had been threatened with a
firearm
and then tied up with n electrical flex. This incident was
the subject of count two of the indictment. The owner and director of
the company testified that he had experienced severe cash flow
problems due to his stock having been stolen. Suppliers who he had
been unable to pay as a result had refused to supply him, and this
had led to his financial ruin with concomitant strain on his
family
life.
(c) Finally, on 10 June 1995, the appellants robbed a
shoe shop in Woodstock owned by Mr Barnett Joffe. They did so after
they had
gained access through a locked security gate on the pretext
of wishing to buy shoes. Once inside, they proceeded to manhandle
Joffe,
wrapped a scarf around his face, punched him about the head,
threw him to the floor, kicked him in the ribs and threatened to
shoot
him. Joffe, who was not only 77 years old but was also
recovering from broken ribs sustained in an accident a few weeks
earlier
– which he told his assailants but to no avail and they
continued kicking him – was unable to offer any resistance.
Terrified, he pleaded for mercy and offered to open his safe.
Fortunately, before he could do so, the second appellant accidently
shot himself in the thigh which caused the appellants and their
accomplice to panic and flee. They took with them R250 in cash,
Joffe’s wrist-watch valued at R1 300 and shoes valued at R2
275. Understandably, Joffe was traumatised by his experience
and was
still suffering from regular nightmares as a result at the time of
the trial a year later. This incident formed the subject
of count one
of the indictment.
[5
] The appellants did not seek to
deny their guilt, but the trial court remarked that despite their
plea of guilty they did not appear
to be truly remorseful and had
rather regarded the court proceedings as something of a joke. They
were both young men in their
twenties, the first appellant having
been 24 years of age at the time of the trial while the second
appellant was five years older.
The first appellant was married with
two children but estranged from his wife as a result of his drug
habit ─ he testified
that he used 20-30 mandrax tablets per
day. Although he had held down fixed employment for a period of seven
years, he had lost
his job and had been unemployed for about two
years before the offences were committed. The second appellant,
although unmarried,
had seven children. He had reached grade six at
school, but had only worked for short periods thereafter and was
unemployed at
the time of the offences.
[6] Neither appellant is a stranger to the criminal
courts. During the course of 1994, the first appellant appeared in
court and
was convicted in five different cases involving a total of
seven counts of theft – mostly of video machines and video
cassettes
– for which he was leniently treated and enjoyed the
benefit of either wholly or partially suspended sentences. He
informed
the trial court that on 20 February 1996 he had also been
sentenced to a further two years’ imprisonment for theft. The
second
appellant also had a number of relevant previous convictions.
In 1993 he was convicted and sentenced on one count of theft and two
counts of housebreaking with intent to steal and theft. He served
about two years of his sentences before being released on parole
in
June 1994, a year before the present offences were committed.
[7] Despite their differing personal
circumstances, there is no need to treat either appellant more
leniently than the other.
All
these offences were carefully planned and executed. On each occasion
resistance was overcome by the threat of a firearm. Although
none of
the complainants sustained severe injuries, they must have been
terrified. It hardly needs to be emphasised that armed
robberies of
this nature are a plague in this country and a bane of society. By
their very nature, they are severe offences deserving
of heavy
punishment.
1
It is not without significance that
although the
Criminal Law Amendment Act 105 of 1997
was introduced
after the incidents in question, under that Act offences of this
nature now attract a prescribed minimum sentence
of 15 years’
imprisonment. In light of these factors, counsel for the appellants
found himself unable to argue that the individual
sentences were
inappropriate.
Furthermore,
even though a difference between the individual sentences imposed on
the respective counts may have been justifiable,
the regional court’s
jurisdiction at the time was limited to 10 years’ imprisonment,
and a sentence of at least that
period was justified on each count.
[8] Accordingly, although counsel for the appellants
referred to certain minor misdirections on the part of the trial
magistrate,
he was constrained to limit his argument to the
contention that the cumulative effect of the three sentences, viz 30
years’
imprisonment, was shockingly inappropriate.
[9] When dealing with multiple
offences, a sentencing court must have regard to the totality of the
offender’s criminal conduct
and moral blameworthiness in
determining what effective sentence should be imposed in order to
ensure that the aggregate penalty
is not too severe. In doing so,
while punishment and deterrence indeed come to the fore when imposing
sentences for armed robbery,
it must be remembered, as Holmes JA
pointed out in his inimitable style, that mercy and not a
sledgehammer is the concomitant of
justice.
2
And while a judicial officer must not
hesitate to be firm when necessary ‘he should approach his task
with a humane and compassionate
understanding of human frailties and
the pressures of society which contribute to criminality’.
3
In addition, although it is in the
interest of the general public that a sentence for armed robbery
should act as a deterrent to
others, an offender should not be
sacrificed on the altar of deterrence. As Nicholas JA observed in
S
v Skenjana
:
4
‘
A
sentence of 20 years’ imprisonment is undoubtedly very severe .
. . My personal view is that the public interest is not
necessarily
best served by the imposition of very long sentences of imprisonment.
So far as deterrence is concerned, there is no
reason to believe that
the deterrent effect of a prison sentence is always proportionate to
its length. Indeed, it would seem to
be likely that in this field
there operates a law of diminishing returns: a point is reached after
which additions to the length
of a sentence produce progressively
smaller increases in deterrent effect, so that for example, the
marginal deterrent value of
a sentence of 20 years over one of say 15
years may not be significant . . . Nor is it in the public interest
that potentially
valuable human material should be seriously damaged
by long incarceration. As I observed in
S
v Khumalo and Another
[1984] ZASCA 30
;
1984
(3) SA 327
(A) at 331, it is the experience of prison administrators
that unduly prolonged imprisonment brings about the complete mental
and
physical deterioration of the prisoner. Wrongdoers “must
not be visited with punishments to the point of being broken”.
(
Per
Holmes JA in
S
v Sparks and Another
1972 (3) SA 396
(A) at 410G.)’
[10] An effective sentence of 30 years’
imprisonment is an extremely severe punishment that should be
reserved for particularly
heinous offences – which these three
offences, even viewed in their totality, were not. Although severe,
they were not associated
with the level of extreme violence or loss
of life that unfortunately all too often occurs in armed robberies.
And while not insubstantial,
the value of what was stolen on each
occasion was by no means at the level that is so often the case in
many of the robberies which
daily entertain the courts. The offences
in question therefore cannot be regarded as falling within the upper
echelons of the scale
of severity.
[11] In addition, although they were by no means first
offenders, the appellants were not hardened criminals who had
previously
served long terms of imprisonment. There is nothing to
show that a lengthy period of imprisonment will not bring home the
error
of their ways. It would be unjust to impose a sentence the
effect of which is more likely to destroy than to reform them.
However,
the cumulative effect of the sentences imposed on the
appellants smacks of the use of a sledgehammer; it seems designed
more to
crush than to rehabilitate them.
[12] Bearing all these circumstances in mind, in my
judgment the effective sentence of 30 years’ imprisonment was
far too
severe and disturbingly inappropriate, and a sentence of
effectively no more than 18 years’ imprisonment was called for.
Such a sentence would have reflected the public’s righteous
indignation, acted as a deterrent, punished the appellants and
hopefully induced them to walk a straight path when released back
into society. The effective sentence imposed by the trial court
cannot be allowed to stand and the court a quo erred in not
interfering with it.
[13] An effective 18 years’ imprisonment will be
achieved by ordering six years of each sentence imposed on counts two
and
three to run concurrently with the ten years imprisonment imposed
on count one. This will be reflected in the order below.
[14] In the result, the appeal succeeds. The order of
the court a quo is set aside and replaced with the following:
‘
(a) The appeal succeeds only
to the extent set out in (b) below.
(b) In respect of counts two and three, it is ordered
that six years of the period of ten years’ imprisonment imposed
on each
such count is to run concurrently with the ten years’
imprisonment imposed on count one.
(c) The sentences are otherwise confirmed.’
___________________
L E Leach
Judge of Appeal
APPEARANCES:
For
Appellant: M Calitz
Instructed
by:
High
Court Unit
Cape
Town Justice Centre
Cape
Town
Bloemfontein
Justice Centre
Bloemfontein
For
Respondent: S F A Raphels
The
Director of Public Prosecutions
Cape
Town
The
Director of Public Prosecutions
Bloemfontein
1
See
S v Mhlakaza
1997
(1) SACR 515
(SCA) at 518a-f.
2
S
v Harrison
1970 (3) SA 684
(A) at
686A.
3
Per
Corbett JA in
S v Rabie
1975
(4) SA 855
(A) at 866B-C.
4
1985
(3) SA 51
(A) at 54I-55E.