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[2011] ZASCA 172
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Moswathupa v S (168/11) [2011] ZASCA 172; 2012 (1) SACR 259 (SCA) (29 September 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 168/11
In
the matter between:
FANIE
MASENYE MOSWATHUPA
….............................................................
Appellant
and
THE
STATE
…..............................................................................................
Respondent
Neutral
citation:
Fanie Masenye Moswathupa
v The State
(168/11)
[2011] ZASCA 172
(29 September 2011)
Coram:
PONNAN, THERON and SERITI JJA
Heard:
8 September 2011
Delivered:
29 September 2011
Summary:
Sentence – imposition of –
appellant sentenced to 25 years’ imprisonment for two counts of
housebreaking –
seriousness of the offence and the interests of
society overemphasized – trial court failing to balance the
mitigating factors
against the aggravating factors also failing to
have regard to the cumulative effect of the sentences – on
appeal - sentence
reduced to 16 years’ imprisonment.
___________________________________________________________________
ORDER
On appeal from:
North Gauteng
High Court, Pretoria (Van Rooyen AJ and Van Zyl AJ,
sitting as court of
appeal):
a The appellant’s appeal against sentence succeeds
to the extent set out below.
b The order of the court below is set aside and replaced
with the following:
1. The appeal in respect of the appellant’s
convictions on counts 2 and 4 is upheld and those convictions and the
sentences
imposed pursuant thereto are set aside.
2. The appeal in respect of the appellant’s
convictions on counts 5 and 6 is dismissed.
3. The appeal against the sentence imposed in respect of
counts 5 and 6 is upheld. Those sentences are set aside and in its
stead
is substituted:
On each of counts 5 and 6 the appellant is sentenced to
imprisonment for a term of 10 years, four years of the sentence
imposed
on count 6 is ordered to run concurrently with the sentence
imposed on count 5. The appellant is thus sentenced to an effective
term of imprisonment of 16 years.
JUDGMENT
THERON JA (PONNAN and SERITI JJA concurring)
[1] The appellant stood trial on seven charges in the
Regional Court, Pretoria. He was convicted on four of the charges,
namely
housebreaking with intent to rob and robbery with aggravating
circumstances (count 2), rape (count 4), housebreaking with intent
to
rob and robbery (count 5) and housebreaking with intent to commit an
offence to the prosecutor unknown (count 6). He was sentenced
to 15
years’ imprisonment in respect of counts 2, 4 and 5,
respectively and 10 years’ imprisonment in respect of count
6.
Certain of the sentences were ordered to run concurrently resulting
in an effective period of imprisonment of 45 years. The
appellant’s
appeal to the North Gauteng High Court, Pretoria (Van Rooyen and Van
Zyl AJJ) was partially successful and the
convictions in respect of
counts 2 and 4 were set aside. The high court confirmed the
convictions in respect of counts 5 and 6
and although it altered the
conviction on count 6 to one of housebreaking with intent to commit
theft, it left the sentences of
15 and 10 years, respectively imposed
by the trial court unaltered. The appellant was thus sentenced to an
effective term of 25
years’ imprisonment. The appellant appeals
against those sentences with the leave of the high court.
[2] Count 5 relates to an incident that occurred on 3
February 2000 at the home of the complainants, Dr and Mrs Kernell in
Waverley,
Pretoria. The appellant and his companions gained entry
into the complainants’ home, during the course of the night,
while
they (the complainants) were asleep. The complainants awoke to
find intruders in their bedroom. Their hands and feet were bound
while the intruders searched their home for items of value. One of
the intruders allegedly indecently assaulted Mrs Kernell by
touching
her private parts. Several household items, including a television,
hi-fi stereo, video machine, jewellery and a cellular
phone, to the
total value of R20 000, were stolen during the incident.
[3] Count 6 relates to an incident that occurred at the
Buys’ residence on 9 February 2000, also in Waverley, Pretoria.
Just
like the Kernells, Mr and Mrs Buys awoke during the course of
the night to find intruders in their bedroom. Mrs Buys fired a shot
at one of the intruders. She then gave the firearm to her husband who
was being attacked by one of the intruders. Mr Buys emptied
the
magazine of the firearm thus causing the intruders to flee. But not
before he, Mr Buys, sustained multiple stab wounds. A watch,
radio
and leather jacket were the only items stolen during the
housebreaking.
[4] It is trite that sentencing is pre-eminently a
matter for the discretion of the trial court. An appeal court is only
entitled
to interfere with a sentence where there has been a material
misdirection by the trial court or when the sentence imposed by the
trial court is shocking and startlingly inappropriate.
1
In determining an appropriate sentence, the court should
be mindful of the foundational sentencing principle that ‘punishment
should fit the criminal as well as the crime, be fair to society, and
be blended with a measure of mercy’.
2
In addition to that the court must also consider the
main purposes of punishment, which are deterrent, preventive,
reformative and
retributive.
3
In the exercise of its sentencing discretion a court
must strive to achieve a judicious balance between all relevant
factors ‘in
order to ensure that one element is not unduly
accentuated at the expense of and to the exclusion of the others’.
4
[5] On appeal, it was contended, on behalf of the
appellant that the trial court had over-emphasised the seriousness of
the offence
and the interests of the community and had failed to
balance this against the personal circumstances of the appellant. The
trial
court, in its judgment on sentence, made reference to
‘well-established principles’ that it was required to
apply in
exercising its sentencing discretion, while also
acknowledging the object and purpose of punishment. The court
mentioned that the
sentence must be commensurate with the gravity of
the offence. The magistrate went on to refer to the court’s
duty, when
imposing sentence, ‘to promote a respect for the
law… [to] reflect the seriousness of the offence and provide
just
punishment for the offender, taking into account the personal
circumstances of the offender’. The court noted that citizens
have a right to security and to feel safe in their own homes. The
court concluded that an appropriate sentence was one that would
‘send
[the appellant] to jail for a long time so that when you come back,
you should be an old man who is here to uphold
the law’. The
judgment of the high court on sentence is not particularly helpful.
It dealt with the question of sentence
in one brief paragraph, as
follows:
‘
In so
far as punishment is concerned, I believe that given the
circumstances under which the housebreakings were committed (in the
dark of the night and with people in their homes attempting to
protect themselves by way of burglarproofing; callous conduct from
persons moving into the privacy of their homes) I have no doubt that
the sentences of 15 years for count (5) and ten years for
count (6)
should be confirmed.’
[6] In my view, there was a clear misdirection on the
part of the sentencing court. The court failed to have regard to the
mitigating
factors operating in favour of the accused. The trial
court committed the classic error of merely reciting the ‘well
established
principles’ that ought to be taken into account
when determining an appropriate sentence, but failed to properly
apply these
principles to the particular circumstances of this
matter. The court failed to have regard to the fact that the
appellant was a
first offender and that he had spent 34 months in
custody awaiting trial. The court instead over-emphasised the
seriousness of
the offence of housebreaking and the interests of
society. In
S v Blignaut
2008
(1) SACR 78
(SCA) this court was faced with a similar misdirection.
Ponnan JA, writing for the court said:
‘
[T]he
many mitigating factors that were present were not afforded
appropriate recognition by the magistrate, nor were they balanced
against what he perceived to be the aggravating features in the
commission of the offences. It follows that the sentence imposed
by
the magistrate falls to be set aside and this court is accordingly
free to impose the sentence it considers appropriate .…’
5
.
I
n
S v Van de Venter
2011 (1) SACR 238
(SCA) where the trial court had failed
to have regard to relevant mitigating factors, Ponnan JA dealt with
the matter in the following
terms:
‘
None
of the mitigating factors that I have alluded to merited even a
mention in the judgment of the trial court. They ought to have.
Nor
were they balanced against what were perceived to be the aggravating
features in the commission of the offences. In failing
to afford any
recognition to those factors in the determination of an appropriate
sentence, the trial court disregarded the traditional
triad of the
crime, the offender and the interests of society. Instead, the
learned judge appears to have emphasised the public
interest and
general deterrence in arriving at what he considered to be a just
sentence, whilst ignoring the other traditional
aims of sentencing —
such as personal deterrence, rehabilitation and reformation.’
6
It follows that as the trial court materially
misdirected itself, intervention on the first leg is justified.
[7] There appears to be no reasonable explanation for
the five year disparity between the sentences imposed in respect of
counts
5 and 6. Both counts relate to housebreakings which were
carried out in a similar manner. During the incident at the Buys’
residence, Mr Buys was stabbed and seriously injured, yet a sentence
of ten years’ imprisonment was imposed in respect of
this
offence. While the Kernell incident had the additional element of an
indecent assault, none of the complainants were injured
during the
course of the housebreaking. The additional element of indecent
assault at the Kernell residence was not such as to
warrant the
imposition of an additional five years’ imprisonment. Further
it needs to be borne in mind that 15 years is the
outer limit of the
regional court’s ordinary penal jurisdiction. Count 5 hardly
qualifies for the maximum sentence that the
regional court can
impose.
[8] It is clear from their judgments on sentence that
the regional court, as well as the high court, had failed to have
regard to
the cumulative effect of the sentence. In my view, the
effective sentence of 25 years’ imprisonment, is shockingly
inappropriate.
It is trite that punishment should fit the criminal as
well as the crime, be fair to the accused and to society, and be
blended
with a measure of mercy. In
S v V
1972 (3) SA 611
(A) at 614D-E, Holmes JA emphasised that
‘the element of mercy, a hallmark of civilised and enlightened
administration
,
should
not be overlooked’. Holmes JA added that mercy was an element
of justice and referred with approval to
S v
Harrison
1970 (3) SA 684
(A) at 686A,
where the learned judge had said that, ‘[j]ustice
must be done; but mercy, not a sledge-hammer, is its concomitant’.
Where multiple offences need to be punished, the court has to seek an
appropriate sentence for all offences taken together.
7
When dealing with multiple offences a court must not
lose sight of the fact that the aggregate penalty must not be unduly
severe.
[9] It is so that housebreaking is an extremely
prevalent offence and it is in the general public interest that
sentences imposed
in these matters should act as a deterrent to
others. The message needs to go out to the community that people who
commit these
types of offences will be dealt with severely by the
courts. However, in
S v Skenjana
1985 (3) SA 51
(A) at 54I-55E,
Nicholas
JA endorsed the sentiments expressed by Holmes JA in
S
v Sparks
1972 (3) SA 396
(A) at 410G, to the
effect that ‘[w]rongdoers “must not be visited with
punishments to the point of being broken”’.
It is clear
from the following remarks that deterrence and retribution was at the
forefront of the magistrate’s mind:
‘
I want to send you to jail for
a long time so that when you come back, you should be an old man who
is here to uphold the law.’
[10] An effective period of imprisonment of 25 years is
a very severe punishment which should be reserved for particularly
heinous
offences (
Muller v The State
[2011] ZASCA 151.
The two
charges of housebreaking in respect of which the appellant was
convicted, while serious offences are not the most heinous
of
offences. In my reconsideration of the matter and having regard to
the nature of the offences, the circumstances of the appellant
and
the interests of society, an effective term of 16 years’
imprisonment would be just and fair.
[11] In the result, the following is made.
a The appellant’s appeal against sentence succeeds
to the extent set out below.
b The order of the court below is set aside and replaced
with the following:
1. The appeal in respect of the appellant’s
convictions on counts 2 and 4 is upheld and those convictions and the
sentences
imposed pursuant thereto are set aside. Those sentences are
set aside and in its stead is substituted:
2. The appeal in respect of the appellant’s
convictions on counts 5 and 6 is dismissed.
3. The appeal against the sentence imposed in respect of
counts 5 and 6 is upheld.
On each of counts 5 and 6 the appellant is sentenced to
imprisonment for a term of 10 years, four years of the sentence
imposed
on count 6 is ordered to run concurrently with the sentence
imposed on count 5. The appellant is thus sentenced to an effective
term of imprisonment of 16 years.
________________
L V THERON
JUDGE OF APPEAL
Appearances:
Appellant: L Augustyn
Instructed by: Legal Aid Board,
Pretoria
Legal Aid Board, Bloemfontein
Respondent: P Nkuna
Instructed by: Director of
Public Prosecutions, Pretoria
Director of Public Prosecutions,
Bloemfontein
1
See
S v Malgas
2001 (1) SACR 469
(SCA) para 12.
2
Per
Holmes JA in
S v Rabie
1975 (4) SA 855
(A) at 862G-H.
3
See
R v Swanepoel
1945 AD 444
at 455.
S
v Whitehead
1970 (4) SA
424
(A) at 436F-G;
S v
Rabie
at 862A-B;
S
v Banda
1991 (2) SA 352
(BG) at 354E-G;
4
S
v Banda
at 355A-B.
5
Para
6.
6
Para
15.
7
S
v Johaar
2010 (1) SACR 23
(SCA) para 14.