Buthelezi and Others v S (A245/2021) [2022] ZAGPPHC 444 (14 June 2022)

82 Reportability

Criminal Law

Brief Summary

Criminal Law — Sentencing — Appeal against sentence — Appellants convicted of attempting to tamper with essential infrastructure — Sentenced to 10 years imprisonment — Appeal against sentence on grounds of misdirection by trial court — Court a quo failed to consider alternative sentences and personal circumstances of appellants — No substantial and compelling circumstances found to deviate from prescribed minimum sentence — Appeal dismissed, sentence upheld as not grossly excessive or improper.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal against sentence in the High Court of South Africa, Gauteng Division, Pretoria. The appeal followed upon the conviction of four accused persons for attempting to tamper with, damage or destroy essential infrastructure, an offence framed as a contravention of section 3(1) of the Criminal Matters Amendment Act 18 of 2015.

The parties were Theko Buthelezi, Iseaili Botlaki, Thabo Mtungwa, and Katlego Buthelezi as appellants, and the State as respondent.

In the Regional Court sitting at Oberholzer, Gauteng, the appellants were convicted and, on 11 June 2021, each was sentenced to an effective term of 10 years’ imprisonment. An attempt was made to challenge both conviction and sentence. Leave to appeal was refused in relation to conviction, and leave was granted only in respect of sentence. The matter accordingly came before the High Court solely as an appeal against sentence.

The general subject-matter of the dispute concerned whether the trial court committed a material misdirection in sentencing, and whether the imposed sentences were disproportionate (in the sense required for appellate interference) given that the conviction was for an attempt rather than a completed offence and given the appellants’ individual circumstances.

2. Material Facts

The material facts accepted and relied upon by the court were set out as a brief background to the sentencing enquiry and the grounds of appeal.

On or about 8 September 2018, near Carletonville, private security officers apprehended the appellants. The security officers had observed a freshly dug hole in the vicinity of underground Telkom cables, and kept watch near the site.

The appellants were arrested after they jumped out of the hole they had dug and attempted to flee when disturbed by the security officers. They were apprehended and later handed over to the police, after which they were formally arrested.

The conviction that followed was specifically for an attempt to tamper with, damage or destroy essential infrastructure (rather than a completed act of damage, destruction, or removal). The fact that the offence was an attempt, and not a completed act, was expressly noted by the sentencing court and remained central to the appeal.

In relation to personal circumstances relevant to sentence, the sentencing court considered that the first appellant had multiple previous convictions (including robbery, fraud, malicious injury to property, assault-related offences, and unlawful possession of a firearm). The court also considered aspects such as family circumstances (including minor children for certain appellants), employment status (casual or odd jobs), and health. It was common cause that, save for the second appellant, the appellants were not first offenders.

3. Legal Issues

The central legal questions concerned the correct appellate approach to interfering with a sentence imposed by a trial court, and whether the grounds advanced disclosed a misdirection of a kind that entitled the High Court to intervene.

More specifically, the court was required to determine whether the trial court committed material misdirection by failing to consider alternative sentencing options (including a suspended sentence), imposing a sentence said to be “shocking” or disproportionate, failing to differentiate between appellants despite different personal circumstances and criminal histories, over-emphasising seriousness and the interests of society, failing to consider rehabilitation, and relying on information not tendered in evidence (through references to newspaper reports about cable theft).

The dispute primarily involved the application of sentencing principles to the facts and the exercise of a value judgment/discretion inherent in sentencing. It also required determining whether alleged errors amounted to a misdirection as understood in sentencing appeals, and whether any such misdirection was sufficiently serious to vitiate the sentencing discretion.

4. Court’s Reasoning

The High Court approached the matter on the basis that sentencing is pre-eminently within the discretion of the trial court, and that appellate interference is limited. It emphasised that an appeal court does not reconsider sentence afresh merely because it might have imposed a different penalty, and that interference is justified only where the sentence is one that no reasonable court would have imposed, where the trial court exercised its discretion improperly, or where the sentence is grossly excessive or otherwise unjust in a manner warranting intervention.

In addressing the complaint that the trial court relied on newspaper reports, the High Court treated the references as contextual material used to demonstrate the interests of society and the prevalence of cable theft. It held that such references did not amount to the magistrate “testifying” or improperly introducing new evidence in any material sense. Even if such references were to be regarded as extraneous, the High Court considered that they were not shown to be materially influential in a manner amounting to a vitiating misdirection.

On the contention that the sentencing court over-emphasised the seriousness of the offence and societal interests, the High Court rejected the criticism. It noted that tampering with essential infrastructure had been escalated to a category of serious offences (with reference to the offence’s legislative treatment and the seriousness attributed to it), and regarded this as demonstrating that the seriousness of the conduct was a legitimate sentencing consideration.

The High Court dealt with the appellants’ reliance on authorities concerning prescribed minimum sentences by holding that such reliance was misplaced in this case. It reasoned that, on the record before it, the conviction (attempting to contravene section 3(1)) did not involve the operation of a prescribed minimum sentence regime; accordingly, arguments founded on substantial and compelling circumstances, and the constitutional proportionality concerns addressed in minimum sentence jurisprudence, did not assist the appellants on the facts of this matter. The court further considered that, even viewing the statutory framework in which section 3(1) provides for imprisonment not exceeding 30 years for the offence, a sentence of 10 years’ imprisonment for an attempt was not shown to be disproportionate in the sense required for appellate interference.

Regarding individualisation of sentence and alleged failure to distinguish between appellants, the High Court accepted that the trial court recited personal circumstances and acknowledged similarities and differences (including that the second appellant had no previous convictions). Although the High Court indicated agreement with the criticism that the record did not clearly demonstrate how personal circumstances were “fused” into the sentencing outcome, it ultimately held that this did not rise to the level of a misdirection justifying interference on appeal.

On rehabilitation, the High Court treated rehabilitation as an in-built component of the correctional system for offenders sentenced to imprisonment and found that the appellants’ rehabilitation argument did not demonstrate that the sentencing discretion had been improperly exercised, particularly given that most appellants were not first offenders.

The court’s approach to the threshold for appellate interference was anchored in the conception of misdirection articulated in sentencing appeal jurisprudence. It applied the principle that a misdirection must be of such seriousness that it shows the sentencing court did not exercise its discretion judicially or properly. On the record, the High Court concluded that no material misdirection had been established and that the sentences were not grossly disproportionate to the offence and the offenders.

5. Outcome and Relief

The High Court dismissed the appeal. The effect of the order was that the sentence imposed by the Regional Court, namely 10 years’ effective imprisonment for each appellant, remained in place.

No separate or explicit costs order was made in the judgment.

Cases Cited

S v Malgas 2001 (1) SACR 469 (SCA)

S v Dodo 2001 (1) SACR 594 (CC)

S v Pillay 1977 (4) SA 531 (A) at 553E–F

Legislation Cited

Criminal Matters Amendment Act 18 of 2015 (section 3(1); section 1; Schedule 5)

Criminal Procedure Act 51 of 1977 (section 332(2))

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the appellants had not demonstrated a vitiating misdirection in the sentencing process and had not shown that the sentences were grossly disproportionate or such that no reasonable court would have imposed them. The court further held that references to newspaper reports were used to contextualise the interests of society and did not amount to the improper introduction of new evidence in a manner warranting appellate interference. It also held that arguments premised on the prescribed minimum sentence framework were not applicable on the facts, as the conviction did not engage a prescribed minimum sentence.

LEGAL PRINCIPLES

The judgment applied the principle that sentencing lies within the discretion of the trial court, and that an appellate court may interfere only where the sentence is one that no reasonable court would impose, where there is a material misdirection, or where the sentencing discretion was exercised improperly or unreasonably.

It applied the definition of misdirection in sentencing to require more than mere error: the misdirection must be of such seriousness that it demonstrates that the sentencing court failed to exercise its discretion judicially, thereby vitiating the sentencing decision.

The judgment also applied the principle that sentencing must reflect proportionality between the offence, the offender, and the interests of society, and that the seriousness of offences involving essential infrastructure is a legitimate and weighty consideration.

It further applied the view that rehabilitation is not excluded by custodial punishment and may be regarded as part of the broader sentencing and correctional framework, particularly where imprisonment is imposed and where the offender is not a first offender.