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[2011] ZASCA 165
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Mathebula and Another v S (045/11) [2011] ZASCA 165; 2012 (1) SACR 374 (SCA) (29 September 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 045/11
In the
matter between:
JOSEPH MATHEBULA
….................................................................................
First
Appellant
JOAQI NOVEL
….........................................................................................
Second
Appellant
and
THE
STATE
…........................................................................................................
Respondent
Neutral citation:
Mathebula v The State
(045/11)
[2011]
ZASCA 165
(29 September 2011)
Coram:
Mthiyane, Maya and Bosielo JJA
Heard: 05 September 2011
Delivered: 29 September 2011
Summary:
Appeals – sentences – appellants convicted of robbery
with aggravating circumstances – court sentencing them to
imprisonment for 20 years without giving any reasons – s
52(1)(a)(i) of the Criminal Law Amendment Act 105 of 1997 (as
amended)
– sentences set aside and replaced with a sentence of
15 years’ imprisonment.
ORDER
On appeal from
: North Gauteng High Court (Pretoria) (Southwood
and Legodi JJ sitting as a court of appeal):
1. The appellants’ appeal against the sentence of 20 years’
imprisonment imposed in respect of robbery with aggravating
circumstances is upheld. The sentence is set aside and replaced with
a sentence of imprisonment of 15 years.
2. The appeal in respect of the sentence of 3 years’
imprisonment imposed on the second appellant for both unlawful
possession
of a firearm and unlawful possession of ammunition (these
were treated as one for purposes of sentence) is varied to an extent
that the sentence is ordered to run concurrently with the sentence
imposed in respect of the robbery with aggravating circumstances.
3. (a) The effective sentence for first appellant is imprisonment of
15 years;
The effective sentence for the second appellant is imprisonment of
16 years.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
BOSIELO JA (Mthiyane and Maya JJA concurring)
[1] The two appellants were convicted in the Regional Court, Brakpan
of robbery with aggravating circumstances (count 1), unlawful
possession of firearm (count 3) and the unlawful possession of
ammunition (count 4) by the Regional Court, Brakpan. In addition
the
second appellant was also convicted on negligent discharge of a
firearm in contravention of s 39(1) read with s 39(2)(d)
of the
Arms and Ammunition Act 75 of 1969 (second alternative to count 2).
The first appellant was sentenced as follows:
(a) 20 years’ imprisonment in respect of the robbery with
aggravating circumstances;
(b) 3 years’ imprisonment in respect of the unlawful possession
of firearm and unlawful possession of ammunition; these were
taken
together for purposes of sentence. Effectively the first appellant
was sentenced to imprisonment of 23 years.
[2] The second appellant was sentenced as follows:
(a) 20 years’ imprisonment in respect of robbery with
aggravating circumstances;
(b) 1 year imprisonment in respect of the negligent discharge of a
firearm and 3 years’ imprisonment in respect of the unlawful
possession of firearm and ammunition; the two counts were taken
together for purposes of sentence. The effective sentence for the
second appellant was 24 years’ imprisonment.
[3] Both appellants appealed against their convictions and sentences
to the North Gauteng High Court. The high court (per Southwood
and
Legodi JJ) dismissed their appeals against conviction. The appeal in
respect of sentences imposed on the first appellant succeeded
to the
extent that the court below ordered the sentence of 3 years imposed
in respect of the unlawful possession of firearm and
ammunition to
run concurrently with the sentence of 20 years imposed in respect of
robbery with aggravating circumstances. Effectively
the first
appellant was sentenced to imprisonment for 20 years. The second
appellant’s appeal against his sentences failed.
This meant
that the second appellant was to serve a sentence of 24 years. Only
the first appellant applied for leave to appeal
to this court.
However, in the interests of justice, the court below granted both
appellants leave to appeal to this court against
their sentences.
[4] A succinct factual background of the facts of this case will
serve to elucidate this judgment. On 11 June 2011 the appellants
broke into the home of Ms Shabalala’s employer. A firearm was
put against her neck and she was frogmarched into the house.
Her
hands were tied behind her back after she was blindfolded. She was
forced into a toilet. However, she succeeded to untie herself
and
fled to go and seek help from her neighbours. Although she did not
suffer physical injuries, she was seriously traumatised.
Some items
of her employer’s belongings were packed in boxes by the
robbers although not removed. The only item which was
reported stolen
was her employer’s firearm.
[5] This robbery falls squarely within the purview of s 51(2)(a)(i)
of the Criminal Law Amendment Act 105 of 1997 (the Act). The
relevant
part of this section provides:
(2) Notwithstanding any other
law but subject to subsection (3) and (6), a regional court or 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 of not less than 20 years.
[6] A proviso to s 51(2) of the Act provides:
‘
Provided
that the maximum sentence a regional court may impose in terms of
this subsection shall not be more than five years longer
than the
minimum sentence that it may impose.’
[7] Having convicted the appellants of robbery with aggravating
circumstances, the regional magistrate was obliged to impose a
minimum sentence of imprisonment of not less than 15 years unless he
found substantial and compelling circumstances to justify
a lesser
sentence. Instead the regional magistrate imposed a sentence of 20
years’ imprisonment on each appellant. Regrettably
the regional
magistrate did not give any reasons for such a material deviation. In
terms of the proviso to s 51(2) of the Act,
the regional magistrate
has the discretion to increase a minimum sentence he or she decides
to impose to a term of imprisonment
not exceeding five years.
Presumably this can be done where there are seriously aggravating
circumstances which render the prescribed
minimum sentence
inappropriate. Ostensibly this is what the regional magistrate
intended to do without clearly saying so.
[8] This appeal raises two questions for consideration. Firstly
whether the regional magistrate and the court below acted properly
in
sentencing the appellants to imprisonment for a sentence exceeding 15
years which is the minimum sentence prescribed by s 51(2)(a)(i)
for
robbery with aggravating circumstances without giving any reasons.
Secondly, whether, given the circumstances under which the
robbery
was committed, and the personal circumstances of the appellants, a
sentence of imprisonment for 20 years can be described
as shockingly
or startlingly inappropriate. On appeal the high court found that it
could not be said that a sentence of imprisonment
of 20 years in the
circumstances of this case is inappropriate and confirmed the
sentence.
[9] There is no doubt that the robbery herein was accompanied by
serious aggravating factors. The robbery was pre-planned and
premeditated. The two accused acted in concert which makes it a gang
robbery. The complainant was ambushed in the sanctity and comfort
of
her employer’s home. She was terrorised repeatedly with a
firearm which was pressed against her neck. Her hands were tied
and
she was blindfolded.
[10] A regional magistrate has the discretion to impose a sentence
exceeding the minimum sentence prescribed by the Act with an
additional 5 years as provided for in the proviso to s 51(2). Such a
discretion must however be exercised judicially and on reasonable
grounds. Where a regional magistrate intends to depart from the
prescribed minimum sentence, it is proper and fair that the regional
magistrate gives reasons for such a departure. Absent any such
reasons, the conclusion becomes inescapable that such a decision
is
arbitrary or that the sentencing discretion was not exercised
judicially. It is not proper for an appeal court to have to speculate
about the reasons which motivated the regional magistrate to impose a
sentence higher than the minimum sentence prescribed. Such
an
approach cannot be countenanced as it is subversive to the principles
of openness, transparency, accountability and fairness.
It is trite
that judicial officers can only account for their decisions in court
through their judgments. It is through judgments
which contain
reasons that judicial officers speak to the public. Their reasons are
therefore the substance of their judicial actions.
Dealing with a
similar matter this court enunciated the principle as follows in
S
v Maake
2011 (1) SACR 263
(SCA) para 19:
‘
It is
not only a salutary practice, but obligatory for judicial officers to
provide reasons to substantiate conclusions.’
The court went to state the following at para 20:
‘
When a
matter is taken on appeal, a court of appeal has a similar interest
in knowing why a judicial officer who heard the matter
made the order
which he did. Broader considerations come into play. It is in the
interest of the open and proper administration
of justice that courts
state publicly the reasons for their decisions. A statement of
reasons gives some assurance that the court
gave consideration to the
matter and did not act arbitrarily. This is important in the
maintenance of public confidence in the
administration of justice.’
See
Strategic Liquor Services v Mvumbi NO & others
2010
(2) SA 92
(CC) para 15.
[11] The proper approach to be adopted by a sentencing court which
contemplates to impose higher than the prescribed minimum sentence
seems to me to be the one adumbrated by Wallis J in
S v Mbatha
2009 (2) SACR 623
(KZP) para 20 where he stated:
‘
On
that approach there is as much a necessity for the court in its
judgment on sentence to identify on the record the aggravating
circumstances that take the case out of the ordinary, as there is for
it in the converse situation to identify those substantial
and
compelling circumstances that warrant the imposition of a lesser
sentence than the prescribed minimum. The trial judge should
identify
the circumstances that impel her or him to impose a sentence greater
than the prescribed minimum and explain why they
render the
particular case one where a departure from the prescribed sentence is
justified. The factors that render the accused
more morally
blameworthy must be clearly articulated.’
This salutary approach was endorsed in
S v Maake
(above) para
28.
[12] In conclusion, I find that the robbery herein fell within the
provisions of s 51(2)(a)(i) of the Act. Both the regional
magistrate and the court below failed to identify and record any
facts or circumstances which made the robbery so serious or
exceptional
that it merited a sentence of imprisonment exceeding the
prescribed minimum sentence of 15 years. I have not been able to find
any such facts or circumstances from the record to justify the
imposition of an additional 5 years provided for in the proviso to
s
51(2). Absent such facts the sentence of imprisonment for 20 years
appears to me to be not only arbitrary but disturbingly inappropriate
as well. The appellants should have been sentenced to imprisonment of
not less than 15 years and not 20 years.
[13] Concerning counts 3 and 4 the high court had found that the
regional magistrate had erred in failing to take into account
the
fact that the first appellant was in unlawful possession of the
firearm (count 3) and ammunition (count 4) for a limited period
whereas the second appellant unlawfully possessed them until his
arrest on 17 July 2001. Based on this reasoning, the high court
ordered the sentence of 3 years’ imprisonment imposed on the
first appellant for unlawful possession of firearms and ammunition
to
run concurrently with the sentence imposed in respect of the count of
robbery with aggravating circumstances (count 1). The
high court
dismissed the appeal by second appellant against his sentences.
Effectively the second appellant was to serve imprisonment
of 24
years whilst the first appellant would serve imprisonment of 20 years
only.
[14] It is trite that, unless there are exceptional circumstances,
accused persons convicted of the same offences must receive
the same
sentence. This principle accords with the fundamental principles of
uniformity of sentence, equality and fairness. Fairness
in particular
is a foundational value which should suffuse the entire criminal
proceedings. The two appellants were convicted of
the same offences
except that the second appellant was also convicted of the negligent
discharge of a firearm. There is no significant
difference in their
personal circumstances to justify a disparity of 4 years. This
unexplained disparity is so shocking that it
warrants interference.
Save for the count of negligent discharge of a firearm for which
second appellant received a sentence of
imprisonment for 1 year, I
see no reason for treating the two appellants differently. The second
appellant deserves to have the
sentence imposed on him in respect of
the counts of unlawful possession of firearm and the unlawful
possession of ammunition run
concurrently with the sentence imposed
in respect of the count of robbery with aggravating circumstances as
is the case with the
first appellant.
[15] In the result, the following order is made:
1. The appellants’ appeal against their sentences of 20 years’
imprisonment imposed in respect of robbery with aggravating
circumstances is upheld. The sentence is set aside and replaced with
a sentence of imprisonment of 15 years.
2. The appeal in respect of the sentence of 3 years’
imprisonment imposed on the second appellant for both unlawful
possession
of a firearm and unlawful possession of ammunition (these
were treated as one for purposes of sentence) is varied to an extent
that the sentence is ordered to run concurrently with the sentence
imposed in respect of the robbery with aggravating circumstances.
3. (a) The effective sentence for first appellant is imprisonment of
15 years;
The effective sentence for the second appellant is imprisonment of
16 years.
____________
L O Bosielo
Judge of Appeal
APPEARANCES:
For
Appellants: LA van Wyk SC
Instructed
by:
Legal Aid
South Africa, Pretoria
Legal Aid
South Africa, Bloemfontein
For
Respondent: E Leonard SC
Instructed
by:
Director
Public Prosecutions, Pretoria
Director
Public Prosecutions, Bloemfontein