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[2011] ZASCA 219
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Kruger v S (506/2011) [2011] ZASCA 219; 2012 (1) SACR 369 (SCA) (29 November 2011)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 506/2011
In the matter between
ADRIAAN KRUGER
….....................................................................................
Appellant
and
THE STATE
…..............................................................................................
Respondent
Neutral citation:
Kruger v S
(506/11)
[2011] ZASCA 219
(29 November 2011)
Coram: HARMS AP,
SHONGWE JA and PLASKET AJA
Heard: 23 November
2011
Delivered: 29 November
2011
Summary:
Sentence
– multiple charges – cumulative effect of the sentences –
harsh and disproportionate – appeal court
entitled to interfere
– period spent by accused person awaiting trial also to be
taken into account.
ORDER
___________________________________________________________________
On
appeal from:
North Gauteng High Court
(Pretoria)
(Botha and Du Plessis JJ sitting as court of appeal):
1 The appeal is upheld
2 The sentences imposed
by the court below are set aside and replaced by the following:
‘
On
counts 1, 3, 4 and 10 (counts of housebreaking with intent to steal
and theft) the accused is sentenced to 4 years’ imprisonment
on each count.
On counts 5 and 11 (a
count of theft and of contravening s 36 of the General Law Amendment
Act 62 of 1955) the accused is sentenced
to 3 years’
imprisonment on each count. These sentences will run concurrently
with the sentences in (a) above.
On count 6 (a count of
robbery) the accused is sentenced to 4 years’ imprisonment.
This sentence will also run concurrently
with the sentences in (a)
above.
It is ordered that all
the sentences be antedated to 24 February 2000.
Three years of the
sentence on count 10 is to run concurrently with the sentence on
count 4 in (a) above’.
__________________________________________________________________
JUDGMENT
___________________________________________________________________
SHONGWE JA (HARMS AP,
PLASKET AJA concurring)
[1] The appellant was 22
years old when he was arrested on 19 June 1996. He was charged in the
regional court Pretoria with twelve
counts, namely counts 1, 2, 3, 4,
8 and 10 of housebreaking with intent to steal and theft, counts 5,
7, 9 and 11 of theft, count
6 of robbery and count 12 of the
contravention of s 48(1) of the Correctional Services Act 8 of 1959
(escaping from lawful custody).
He initially pleaded not guilty to
all the charges. During the trial he changed his plea to that of
guilty on five charges. He
was ultimately convicted on seven counts,
namely four of housebreaking with intent to steal and theft for which
he was sentenced
to 4 years’ imprisonment on each count; one
count of theft and one count of contravening s 36 of the General Law
Amendment
Act 62 of 1955 for which he was sentenced to 3 years’
imprisonment on each count and one count of robbery for which he was
sentenced to 8 years’ imprisonment. Effectively he had to serve
30 years’ imprisonment.
[2] His application for
leave to appeal against both conviction and sentence was refused. He
petitioned the Judge President of the
North Gauteng High Court. Leave
against sentence only was granted. The court below confirmed all the
sentences save for the sentence
on the robbery charge which was set
aside and replaced with a sentence of 4 years’ imprisonment.The
court below reasoned
that the robbery concerned was not the usual one
where excessive violence is involved. It likened the particular
robbery to handbag
snatching. Effectively he had to serve 26 years’
imprisonment. This appeal is before us with leave of the court below.
[3] The appellant
contends that the cumulative effect of the sentences is so harsh and
disproportionate that it entitles this court
to interfere:
furthermore that ‘the period spent in custody pending the
outcome of the trial should be taken into consideration
for purposes
of sentence’. The State on the other hand contends that both
these factors were considered by the trial and
high court when
imposing sentence.In my view the trial court may have said that it
considered the cumulative effect of the sentences
but the ultimate
sentences imposed are not reflective of such consideration.
[4] It is not necessary,
for the purpose of this judgment, to deal in any detail with the
individual offences committed. Suffice
it to mention that 8 months
after the expiry of his parole the appellant started with a series of
housebreakings and theft. At
the end of it all he approached an old
woman and pretended to be inquiring about something and when she was
distracted he snatched
her handbag and ran away. His conduct is
classified as robbery, though with minimal violence. What is
significant is that all these
offences occurred within a very short
space of time. Five of the housebreakings took place in June 1996.
The possibility that he
was indeed, under the influence of alcohol or
drugs cannot be excluded. The estimated value of the items stolen is
in the region
of R124 350.00 which a substantial amount is
considering that all this happened within a period of 4 to 5 months.
[5] When dealing with
sentence the trial court considered the triad as espoused in
S v
Zinn
1969 (2) SA537 (A) at 537-540G, that is, the personal
circumstances of the appellant, the seriousness of the offences and
the interest
of society. It also considered that the appellant was
taking care of his sick father and mother. It was contended on behalf
of
the appellant that at the time of the commission of the offences
he was under the influence of drugs and alcohol. He alleged that
his
co-accused, Du Plessis, influenced him to take drugs. However, it
transpired that he started taking drugs when he was 14 years
old,
long before he met Du Plessis. As a result of the drug abuse, he had
to leave school in standard 6.
[6] The trial court
further remarked that despite having been convicted and sentenced
previously, he did not learn a lesson from
the short periods of
imprisonment imposed. Although the court took into account that he
cared for his family – it remarked
that it was clear that he
cared less for other people’s property. The fact that he
committed the offences forming the subject
of this appeal only 8
months after the expiry of his parole period was considered an
aggravating factor and I agree.
[7] The appellant’s
previous convictions are certainly an aggravating factor to be
considered. The earliest of these was in
December 1991 when he was
convicted of theft and sentenced to 6 cuts with a light cane; in
August 1992 he was convicted of housebreaking
and sentence was
postponed for a period of 3 years and he was released
unconditionally; in January 1993 he was convicted of housebreaking
with intent to steal and theft on two counts and sentenced to 39
months’ imprisonment and on the same day he was also convicted
of theft and sentenced to 15 months’ imprisonment; in February
1993 he was convicted of theft and sentenced to 2 years’
imprisonment. The sentence of 2 years’ imprisonment was ordered
to run concurrently with the sentence of 39 months so that
he would
effectively serve 3 years’ imprisonment, again in February 1993
he was convicted of theft and sentenced to 18 months
imprisonment to
run concurrently with the sentence imposed on 29 January 1993. On 14
April 1993 the suspended sentence imposed
on 18 November 1991 was put
into operation. On 17 June 1994 he was released on parole up to 28
October 1995.
[8] In considering an
appropriate sentence on appeal one must not lose sight of the settled
principle of law that sentencing is
pre-eminently a matter for the
discretion of the trial court. However a court of appeal may
interfere with the sentence imposed
provided the trial court
materially misdirected itself or where the sentence imposed is
shockingly inappropriate – (
S v Malgas
2001 (1) SACR 469
(SCA) para 12 and
S v Pillay
1977 (4) SA 531
(A) at 534H –
535A).
[9] In the present case
the trial and high courts considered the previous convictions as an
aggravating factor. I too agree. The
trial as well as the high court
reasoned that it was inappropriate to order the sentences to run
concurrently because the offences
were committed at different places
and on different times. While this may be a consideration, it cannot
justify a failure to factor
in the cumulative effect of the ultimate
number of years imposed. I believe that a sentencing court ought to
tirelessly balance
the mitigating and aggravating factors in order to
reach an appropriate sentence. I also acknowledge that it is a
daunting exercise
indeed.
[10] There is no doubt
that all the offences forming the subject of this appeal are serious
and have to be punished seriously. Although
we also have to admit
that they were not of a violent or heinous character. The appellant
broke into people’s houses wherein
they believed themselves to
be safe. He then removed their goods and exchanged them for cash.
Clearly he committed these offences
for his personal gain and
financial reasons. It is undisputed that he cared for his sickly
parents. He even lied to them that he
was employed whereas he lived
and supported them on proceeds of crime,
which
they did not know. It is no justification to turn to crime because
one is destitute, but it may be a mitigating factor when
balancing
the cumulative effect of the whole sentence. It is said to be
undesirable to impose a globular sentence where there are
multiple
different counts.(
S v Immelman
1978
(3) SA 726
(A) at 728E-729A.) However the practice of taking more
than one count together for purposes of sentence is neither
sanctioned nor
prohibited by law. In
S v Young
1977 (1) SA 602
(A) at 610E–H Trollip
JA said:
‘
Where
multiple counts are closely connected or similar in point of time,
nature, seriousness or otherwise, it is sometimes a useful,
practical
way of ensuring that the punishment imposed is not unnecessarily
duplicated or its cumulative effect is not too harsh
on the accused.’
[11] In the present case
clearly the trial and high courts materially misdirected themselves
by ignoring the cumulative effect of
the sentences. The relative
youthfulness of the appellant, despite the previous convictions,
should have tipped the scales in his
favour. An effective sentence of
26 years, in the circumstances of this particular case is
disproportionately harsh and induces
a sense of shock. The other
consideration is the period spent in prison by the appellant while
awaiting trial. It is only fair
to consider that period especially
where it is a lengthy period. In the present case the appellant was
incarcerated for a period
of 3 years and 8 months before he was
finally sentenced on 24 February 2000. One way of factoring this
period into a sentence is
by antedating the sentence to the date on
which he was sentenced or an earlier date by simply deducting the 3
years and 8 months
from the imposed sentence. (See
S v Vilakazi
2009 (1) SACR 552
(SCA) para 60.) Punishing a convicted person
should not be likened to taking revenge. It must have all the
elements and purposes
of punishment, prevention, retribution,
individual and general deterrence and rehabilitation.
[12] Taking into account
the inordinate time spent awaiting trial of 3 years and 8 months it
would be appropriate to factor that
period in mitigation of the
cumulative effect of the sentences.
[13] For the above
reasons the following order is made:
1The appeal is upheld
2 The sentences by the
trial and the court below are set aside and replaced by the
following:
‘
On
counts 1, 3, 4 and 10 (counts of housebreaking with intent to steal
and theft) the accused is sentenced to 4 years’ imprisonment
on each count.
On counts 5 and 11 (a
count of theft and of contravening s 36 of the General Law Amendment
Act 62 of 1955) the accused is sentenced
to 3 years’
imprisonment on each count. These sentences will run concurrently
with the sentences in (a) above.
On count 6 (a count
robbery of) the accused is sentenced to 4 years’ imprisonment.
This sentence will also run concurrently
with the sentences in (a)
above.
It is ordered that all
the sentences be antedated to 24 February 2000.
Three years of the
sentence on count 10 is to run concurrently with the sentence on
count 4 in (a) above’.
___________________
J B Z SHONGWE
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: F. van As
Instructed by: Legal Aid
Board, Pretoria;
Legal Aid Board,
Bloemfontein.
FOR RESPONDENT: C. A. C.
Geyser
Instructed by: The
Director of Public Prosecutions, Pretoria;
The Director of Public
Prosecutions, Bloemfontein.