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[2022] ZAECMKHC 78
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Mboya v S (CA&R 75/2022) [2022] ZAECMKHC 78 (18 October 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, MAKHANDA]
CASE NO.CA&R
75/2022
In the matter between:
XOLANI
MBOYA
APPELLANT
and
THE
STATE
RESPONDENT
APPEAL JUDGMENT
NORMAN J:
[1]
This is an appeal against sentence. The appellant was convicted on
two counts. Count 1,
was a charge of robbery with aggravating
circumstances and count 2, house breaking with intent to steal and
theft. He was sentenced
to undergo fifteen (15) years imprisonment in
respect of count 1 and five (5) years imprisonment in respect of
count 2, and both
sentences were to run concurrently.
[2]
He applied for leave to appeal to the trial court which was refused.
He then petitioned
the Judge President of the Division and leave was
accordingly granted against sentence.
Background facts
[3]
In respect of Count 1, the robbery charge, the evidence before the
trial court was:
3.1 The
complainant, Ms Tsewu, was a domestic worker at the relevant house.
On
9 October 2020
she was inside her
living quarters and busy on her phone when the appellant entered
carrying a panga. He demanded her phone and
the R1000 she had next to
her. She handed those to him.
3.2. Thereafter the
appellant demanded access to the safe and she led him to the main
house. The appellant was walking behind her,
still carrying the
panga. When they were inside the main house the appellant demanded
various items before coming to the room where
the complainant’s
child was watching television.
3.3. The child saw the
panga and pleaded with the appellant not to kill his mother. The
child further stood in front of the TV and
claimed it to be his. The
alarm went off and the appellant got distracted. The complainant and
her son managed to escape. It was
at that point that the complainant
moved into an enclosed stoep/sun room. The appellant tried to open
the door to the stoep and
when he could not, he used an ornament to
try and break the glass on the door. He did not manage to break the
glass and he fled
the house with a laptop that was next to the
television.
[4]
In respect of count 2, house breaking with intent to steal and theft,
the warehouse
of the complainant,
Ms
Mariette Boonzaaier
was entered into by the appellant through
a broken window. The appellant stole a computer, an Apple watch and
an Eskom handheld
device.
[5]
It is common cause that most of the items that were stolen were
recovered except for
the R1000 that belonged to the complainant in
count 1 and the Eskom handheld device of the complainant in count 2.
The appellant
was arrested and detained on the same day.
[6]
Mr Geldenhuys appeared for the appellant and Mr Govender appeared for
the Respondent.
Appellant’s
submissions
[7]
Mr Geldenhuys submitted that the appellant’s essential personal
circumstances
which were communicated by his attorney to the court
were that ; he was 26 years old at the time of the sentence; he is
unmarried
but has three (3) minor children; he has a Grade 9
education; he was employed at a car-wash business at the time he
committed the
offences relevant to this appeal; he has two relevant
previous convictions involving theft; he was incarcerated while
awaiting
trial for approximately a year and half. As the robbery was
accompanied by aggravating circumstances, a minimum sentence of
fifteen
(15) years imprisonment is prescribed in respect of count 1
which has to be imposed unless there are substantial and compelling
circumstances.
[8]
He further submitted that in sentencing the appellant the trial court
did not place
sufficient emphasis on the following factors:
8.1 the
appellant’s general personal circumstances, although armed with
a panga, the appellant did not physically
use it on the premises and
no physical harm was inflicted on anyone during the incident. The
cellphone and the laptop were recovered.
He submitted that the trial
court erred in not finding that the prescribed sentence is
disproportionate to the appellant’s
personal circumstances, the
seriousness of the offence and the interests of the society and
therefore unjust.
8.2 He
further submitted that the trial court erred in finding that there
were no substantial and compelling circumstances
justifying a
deviation from the prescribed minimum sentence.
8.3 He
submitted that this court should interfere with the sentence in count
1, by reducing it and ordering the
sentences in both counts to run
concurrently.
8.4. The
trial court should have considered the period of one (1) year and
five (5) months spent by the appellant in
custody whilst awaiting
trial. It was submitted that, that factor, should have persuaded the
trial court to deviate from the minimum
sentence imposed.
Respondent’s
submissions
[9]
Mr Govender, on the other hand, acting on behalf of the respondent
opposed the appeal
and submitted that:
9.1. At the
time the appellant was convicted in respect of these charges, he was
on parole. He was serving a sentence
of six (6) years after he had
been convicted of house breaking with intent to steal and theft.
9.2 He
had been out of prison for six (6) months when he committed the
offences. He committed the offence at a
time when he was gainfully
employed. The trial court had taken into account those aspects in
imposing sentence. It further considered,
as aggravating factors, the
emotional trauma that the complainant and the child suffered.
9.3. The
trial court correctly found that no substantial and compelling
circumstances existed for it to deviate from
the prescribed minimum
sentence. He further submitted also that the trial court took into
account all the circumstances of the
case including the traditional
factors when sentencing the appellant.
9.4. The
sentence imposed serves the purposes of punishment, deterrence and
protection of the interests of society and
that there was no
misdirection committed by the trial court in imposing the sentence.
9.5.
He further relied on
S
v PCB
[1]
for the submission that the minimum sentences are prescribed by the
Criminal Law Amendment Act ,1997 and must therefore be treated
differently from other sentences imposed.
Discussion
[10]
A court of appeal does not possess unbounded authority to interfere
with a sentence imposed by
the trial court. It is trite that the test
on appeal against sentence is not whether the sentence was right or
wrong but whether
the trial court exercised its discretion properly
and judicially.
[11]
To
disturb
the sentence on appeal, the sentence must of such a nature, degree or
seriousness that it shows directly or inherently that
the court did
not exercise its discretion at all or exercise it improperly or
unreasonably. (See :
S
v PCB
[2]
.)
[12]
Having had regard to the judgment on sentence it appears that the
trial court, in sentencing
the appellant, took into account all the
relevant factors. It is necessary to deal with the submission that
the trial court should
have imposed a lesser sentence because the
complainant in count 1 and her son were not physically harmed
although the appellant
was carrying a panga. That, so it is argued on
behalf of the appellant, is a factor which warrants interference with
the sentence.
I disagree. The panga was used to subdue the
complainant and the desired result was achieved by the appellant. The
complainant
was posing no danger to the appellant. The panga had the
effect of traumatizing both the complainant and her son.
[13]
It was used against an unarmed, harmless woman who was sitting in the
comfort of her living quarters.
He took the property of both
complainants with total disregard of the owners’ rights to
their property. This was carried
out by the appellant, a person who
had been given a second chance in life, having been released on
parole. Instead of embracing
that opportunity, he deliberately
jeopardized it, in a violent manner.
[14]
The appellant has previous convictions. He was aware of what it means
to break the law, to be
convicted and to serve a term of
imprisonment.
[15]
In so far as the other ground relating to the period spent in custody
prior to conviction and
sentence, my view is, this argument, with
respect, has no merit. The trial court was asked specifically by the
appellant’s
legal representative, to take that period into
account.
[3]
[16]
The trial court, in its judgment on sentence, indeed considered that
factor.
[4]
There is accordingly
no room to interfere with the sentence.
[17]
I have had regard to the following authorities which demonstrate
quite clearly that the various sentences
were only interfered with,
where it was found that a trial court had not taken the period of
incarceration before trial as a facto
, when considering an
appropriate sentence. Those are:
[18]
In
Makhokha
v State
[5]
,
the Constitutional Court stated:
“
As
indicated, we will not interfere with the 15-year term of
imprisonment. But the order must put it beyond question that this
term started running from the date of sentence”.
[19]
In
S
v Vilakazi & Others
[6]
Goldstein J held that the period spent by an accused awaiting trial
should be taken into account when sentencing. He also suggested
that
legislation ought to make specific provision for the antedating of a
sentence to occur to the extent of any time spent in
custody awaiting
trial. Pointing out that the exact period of custody cannot merely be
deducted from sentences imposed, Goldstein
J found that it was unsafe
to rely on the Canadian authority in terms of which such time is
regarded as a sentence of twice that
length.’
[7]
[20]
In
S
v Brophy & another
[8]
a full bench concluded that the trial court in imposing sentence had
overlooked entirely the period of time spent in prison by
both
accused while awaiting trial and sentence . This oversight entitled
the full bench to interfere with the sentence and to consider
sentence afresh. Schwartzman J referred to
S
v Vilakazi (supra)
where Goldstein J said (at 148e) that he
'would
be loathe in the absence of clear evidence to decide that the
miseries of the awaiting trial period are more oppressive than
those
of the post sentence one’s.’
[21]
In
S
v Radebe & Another
[9]
,
the Supreme Court of Appeal remarked as follows:
“
[14]
A better approach, in my view, is that the period in detention
pre-sentencing is but one of the factors that should be taken
into
account in determining whether the effective period of imprisonment
to be imposed is justified: whether it is proportionate
to the crime
committed. Such an approach would take into account the conditions
affecting the accused in detention and the reason
for a prolonged
period of detention. And accordingly, in determining, in respect of
the charge of robbery with aggravating circumstances,
whether
substantial and compelling circumstances warrant a lesser sentence
than that prescribed by the Criminal Law Amendment Act
105 of 1997
(15 years' imprisonment for robbery), the test is not whether on its
own that period of detention constitutes a substantial
or compelling
circumstance, but whether the effective sentence proposed is
proportionate to the crime or crimes committed: whether
the sentence
in all the circumstances, including the period spent in detention
prior to conviction and sentencing, is a just one
.”
[22]
These authorities are distinguishable from the facts of this case.
The trial court did consider
the period that the appellant was in
custody awaiting trial. That is dealt with expressly in the court’s
judgment. In the
decisions referred to above, the courts on appeal
found that the trial courts erred by not considering that period,
hence they
were at large to interfere with the various sentences.
That is not the case herein. The trial court caused the two sentences
to
run concurrently and that, too, was a consideration in favour of
the appellant. In my view, where there is no misdirection found
in
the sentence imposed, the appeal should fail.
[23]
I accordingly make the following Order:
“
The
appeal is dismissed”
T.V NORMAN
JUDGE OF THE HIGH
COURT
I agree.
V.NONCEMBU
JUDGE OF THE HIGH
COURT
Appearances:
For the APPELLAN
:
ADV. D.P
GELDENHUYS
JUSTICE CENTRE
MAKHANDA
For the RESPONDENT
: ADV. D. GOVENDER
OFFICE OF THE DIRECTOR
OF PUBLIC PROSECUTIONS
MAKHANDA
DATE OF HEARING : 12
OCTOBER 2022
DATE OF JUDGMENT : 18
OCTOBER 2022
[1]
2013
(2) SACR 533 (SCA).
[2]
2013
(2) SACR 533
(SCA); para 20
S
v Rabie
1975
(4) SA 855 (A).
[3]
(See:
Record page 222 Lines 1 to 5).
[4]
See:
Record page 230 Lines 1 to 5 )
[5]
[2019]
ZACC 19.
[6]
2000
(1) SACR 140 (W).
[7]
Commentary
on the Criminal Procedure Act (Du Toit)/Chapter 28 Sentence (ss
274299A)
/282
Antedating sentence of imprisonment
[8]
2007
(2) SACR 56 (W).
[9]
2013
(2) SACR 165
(SCA) at para 14.