About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 100
|
|
Phikwa v S (A160/2018) [2021] ZAGPPHC 100 (10 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
08
February 2021
Case Number:
A160/2018
In
the Appeal of:
MDUDUZI
PHIKWA
APPELLANT
and
THE
STATE
RESPONDENT
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives
by email. The judgment is further uploaded to the electronic file of
this matter on Caselines by the Judge or his/her secretary.
The date
of this judgment is deemed to be 10 February 2021.
JUDGMENT
LESO,
AJ
INTRODUCTION
[1]
Appellant appeals against a sentence of 15 years’
direct imprisonment for the offence of robbery with aggravating
circumstances
as intended in section 1 of Act 51 of 1977 read with
sections 51(2), 53 and Schedule 2 of the Criminal Law Amendment Act
105 of
1977. The Regional Court Magistrate, Mkhatshane presided
over the matter under case number SH19/16 at the Gauteng Division,
held at Sebokeng and he found the appellant guilty of the above
offence on 25 July 2017. On 28 July 2017 sentence was imposed
where,
appellant was
sentenced to effective fifteen (15) years term imprisonment and
declared unfit to possess a firearm in terms of Section
103(1) of Act
60 of 2000.
[2]
The State alleged that, on 8 January 2016, at or
near Gold Star wholesalers, at Sebokeng, in the district of Gauteng,
the
appellant
and
other
assailants
unlawfully and intentionally assaulted Johan Ogilvie Lewis and other
people
. It was
further alleged
that
appellant forcefully took the victim’s property, to wit,
a
Blackberry cellphone, 9 mm Luger Pistol and the amount of R40 000
without his consent. A firearm was used
in
the commission of the above offence. The appellant pleaded not guilty
and he
was legally represented throughout
the trial.
GROUNDS
FOR APPEAL
[3]
The grounds for appeal as briefly set out in the
appellant’s
heads and as repeated by his counsel during oral submissions
are
the following:
3.1
Failure
by the
trial court to take into
account all the factors that are relevant for purposes of the
determination of sentence. As a result, the
court
imposed
a sentence that is “shocking and disproportionate to the
offence and
the facts
of the case.
3.2
That
the court failed to apply the determining test as laid down in
S
v Malgas
[1]
and thereby erred
in
finding
that
no
substantial and compelling
circumstances
are
attendant to the person of the appellant on the basis of which the
court can be justified in deviating from the imposition of
the
prescribed minimum sentence.
3.3
That the court failed to take into account
the prospects of rehabilitation and the period that the appellant
spent
in custody
awaiting finalization of the trial.;
3.4
Complainant did not suffer serious
injuries;
3.5
That the appellant was 37 at the time of
sentence, he was married and had minor children;
3.6
Appellant only completed grade 11; and was
incarcerated due to parole violation for 21 months as a results of
this crime.
[4]
The appellant submitted that
the
cases of
S V
Zinn
[2]
,
S v Mthethwa and Others
[3]
and S v Nkosi
[4]
,
set
the guideline
on
how the court should impose a balanced sentence by considering
personal circumstances of the accused, the circumstances of the
commission of the crime, the interest of society, the nature of the
offence and the offender. It is argued that the court
a
quo
failed to apply the principles on sentencing as employed
in the above cases. On the argument of prospects of rehabilitation,
the appellant referred to
S
v Khumalo and Other
[5]
,
S v Dodo
[6]
,
S v Du Toit
[7]
,
on
the effect of long duration of imprisonment. The appellant argues
that the sentence imposed by the court
a
quo
leaves
little
or no hope
that he will be rehabilitated. On the object of sentencing, the
appellant cited the following cases;
S
v Maseola
[8]
,
S v Mhlakaza and another
[9]
and S v Monyane and Others
[10]
).
GROUNDS
FOR OPPOSING APPEAL
STATE’S
CASE
[5]
The state opposed the appeal and argued as following;
5.1
That the trial court did, indeed apply its mind extensively and
enumerated the considerations,
precedent and reasons for the sentence
imposed.
5.2
Further, the sentence strikes the required balance between the
elements of a sentence, clearly
showing that the
court’s
treatment of the enumerated factors was not mere lip-service.
5.3
The seriousness of the offence, the interests of society and the
circumstances of the accused
were all duly and explicitly considered
and none were given more
gravitas
than
others
.
5.4
A person who does not accept responsibility cannot be rehabilitated.
At the very least,
his rehabilitation process would need to be longer
to bring him to insight, where an offender already displaying insight
may require
less time to rehabilitate. The accused has never accepted
responsibility, and in fact applied for leave to appeal the
conviction
as well as the sentence.
Whereas the accused is well
within his constitutional rights to apply for leave to appeal; it is
safe to assume that the mind of
the appellant is not remorseful and
is therefore less likely to rehabilitate. Leave was only granted
where sentence is concerned.
5.5
The statements made about the personal circumstances of the accused
are bare statements
with no indication of how
such
facts
should influence
the decision of the court.
Besides,
the court
a quo
imposed
the minimum sentence as it was
required to do.
5.6
That the magistrate gave opportunity to the accused to place before
him reasons why he should
deviate therefrom and the
appellant
failed
to do so, both
before
the
court
a quo.
Now on appeal, the
reasoning
on sentence
on the part
of the court
a quo
speaks for itself.
5.7
That the seriousness of the offence, the interests of society and the
circumstances of the
accused were all duly and explicitly considered
and none were given more
gravitas
than
others
.
5.8
That the appellant quite rightly concedes that in the face of minimum
sentencing legislation,
his personal circumstances fade into the
background although they do not get rendered. But background does not
mean invisible.
These should still be considered as part of the
“composite yardstick” precedent exhorts, and indeed were
duly considered.
5.8
The
reasons that the accused advanced for purposes of mitigation
of the sentence
are “flimsy”,
and their
consideration as “substantial and compelling”
is
outlawed
in the case of
S v Malgas
(
supra
).
[6]
I will not recite the cases which the state used as reference in its
opposition save
to state the stated cases are repetition of the
appellant’s stated case and the state argues that the said
referred cases
by the appellant do not support the appellants case as
the cases bears different facts.
SUMMARY
OF EVIDENCE ON SENTENCING
[7]
Appellant conceded that in light of the minimum sentence legislation,
he is liable for 15 years of imprisonment.
It was argued that
the personal circumstances of the appellant as listed in paragraph 3
should be considered
a
substantial and compelling on the basis
of which the court will be
justified in deviating from the
imposition
of the prescribed minimum sentence;
[8]
The court
a
quo
referred to a number of cases during sentencing. Firstly the judgment
of De Vos(J) in the case of
S
V N(155/2013)
wherein the following was said “
the
imposition of punishment must be accompanied by judicious mercy and
humanity in accordance with the facts and circumstances
of the
case
.”
On the process of sentencing, the court referred to
S
V Zinn.
On
balancing the personal circumstances of the appellant and whether
there are substantial
and
compelling circumstances, the
court referred to
S
v Vilakazi
[11]
and
S v Malgas as a guideline for imposing the appropriate sentence. See
page 215 to page 219 of the record.
[9]
The court
a quo
said
that there is authority
for the view
that criminals should not be sent to prison to come back with daring
faces if the sentence is light. In conclusion, the magistrate
stated
as follows; “I
have
looked at all the facts presented before
me
and could not find
anything
substantial and compelling to justify departure from minimum
sentence. The aggravating circumstances far outweighs the mitigating
factors. The accused was not a man of straw. He had a decent income,
earning R8 000.00 per month. Surely he could take
care
of his wife and children without engaging in crime
”.
See page 218 of the record.
ANALYSIS OF
EVIDENCE
[10]
For the offence of robbery with aggravating circumstances, the law
prescribes
a
minimum
sentence of 15 years.
Section 51 (2) of the Act
on the other hand provides for the minimum sentencing of categories
of offenders who have been convicted
of offences referred to in Parts
II, III and IV of Schedule 2 by providing that: ‘Notwithstanding
any other law, but subject
to subsections (3) and (6), a Regional
Court or a 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 a first offender, to imprisonment for a period not less than 15
.
The law provides that the sentencing court can only
deviate from the above prescribed minimum sentence if it finds that
there are
substantial and compelling reasons
on
the basis of which
to deviate. This court can
only interfere with the sentence if there are grounds upon which the
court should interfere.
[11]
The only consideration for this court is whether the court
a
quo
failed to
consider
all
factors
or
whether it
misdirected itself by finding that there were no substantial and
compelling
circumstances
on the basis
of
which to deviate from the
imposition
of the
minimum
sentence when
it
imposed sentence
on the appellant.
[12]
It is common cause that the offence which the appellant has committed
calls for the court to
impose
the
minimum prescribed sentence
of 15 years. It is a sentence that the society expects the court to
impose and the appellant would
have been pre-warned
about the
possible imposition of this sentence
at the beginning of the
trial. During the address in mitigation of sentence, the
appellant’s
attorney confirmed that the appellant was aware that
in the event
of conviction,
he is facing 15 y
ears’
imprisonment.
Therefore, the sentence imposed cannot invoke a sense of shock as
argued by the appellant. The only time this sentence
can invoke a
sense of shock is when the sentencing court has downplayed or failed
to consider the substantial and compelling facts
placed before it by
the appellant.
[13]
From the record, while the court
a
quo
had fully outlined the aims of
sentencing which are retribution, deterrence, rehabilitation and
prevention. The court has also
considered the personal circumstances
of the appellant as stated in the appellants ground of appeal and
as
further stated that, in aggravation of sentence, the offence was
operated by a gang and members of a gang should be tracked down
and
be arrested.
[14]
The court is implored to go further
than
considering or “looking” at the personal circumstances of
the appellant as the magistrate said in his judgment. From
the
record, I have no doubt that the magistrate merely recited the
personal circumstance of the appellant and simply considered
those to
be flimsy without analyzing those circumstances individually. What is
lacking in this judgment is
the
fusion of all the presented facts
into the consideration of the
sentence
to be imposed.
The court
a
quo
did
not fully
employ
the purpose of punishment as outlined in the case of S V Rabie
1975
(4) SA 855(A)
, page 862 where it was held that punishment should fit
the criminal as well as the crime, be fair to the society and be
blended
with a measure of mercy according to the circumstances.
Mthethwa sates that t
he
approach established in
Malgas,
which
has since been followed in a long line of cases, sets out how the
minimum sentencing regime should be approached and
in particular how
the enquiry into substantial and compelling circumstances is to be
conducted by a court. Among the factors to
be considered when
determining whether substantial and compelling circumstances are
present or not, are the traditional sentencing
factors: the triad
consisting
of the nature of the offence, the personal circumstances of the
accused, and the interests of society.
The
sentence imposed
is
unfair considering the fact that the appellant is a first offender
and he was not the perpetrator and
was
of a tender
age. The court
a
quo
has
referred to the above cases however it failed to follow the approach
established in sentencing the appellant. The sentence
was more driven
by the aggravating circumstances and the interest of society.
[15]
I had to take issue with the court
a
quo’s
finding that it
found
no
substantial and compelling
circumstances
to
be attendant to the person of the accused which
justify departure from the
imposition
of the
prescribed minimum sentence. Firstly, the court
a
quo
incorrectly found that the fact that the offence was committed by a
gang and only the appellant was convicted is an aggravating
factor.
Secondly, the court failed to consider the
period
of time
which the appellant spend in custody. According to his calculation,
the magistrate concluded that the appellant spent one and half
years
in custody. The above factors
should
surely directly influence the period of incarceration
to
be imposed
.
In the case of
S
v Mambo & others
[12]
(a case with almost similar facts to the appellant’s)
“
Appellant
2 was a young man of twenty one when he was arrested for the first
time on 3 January 1997. He had been in custody for
almost one and a
half years and was never in trouble with the law before
his
trial was finalised. In deciding what an appropriate sentence should
be in his case, the judge held that these circumstances
are in his
view
so
sufficiently substantial and compelling
as
to justify the imposition of a lesser sentence than the prescribed 15
years’ imprisonment. 10 years’ imprisonment
was
considered to be an appropriate sentence.
[16]
In this case the appellant tried to apply for bail on 25 January 2016
and after several
remands
on account of court, his application was formally denied on 7 June
2016 and only on 22 July 2016 was the appellant represented
by Legal
Aid. On several occasions the matter was transferred from one court
to the other and
on
some occasions the court interpreter was not available
.
Typically,
some delays seem to have been at the instance of the State and others
at the instance of the appellant.
In the case of
Ngcobo v S
(1344/2016) 2018 ZASCA
,
primarily the
appellant remained in custody because his three bail applications
failed. Even if there were delays, this court said
in Radebe: “
the
test was not whether on its own that period of detention constituted
a “substantial and compelling circumstance
”
,
but whether the effective sentence proposed was 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, was a just one.’
[17]
The magistrate only recited the
appellant’s
personal
circumstances and overemphasised the seriousness of the offence. The
whole judgment is overshadowed by the offence committed.
The facts of
this case are similar to the facts in S v Mthethwa and others
2015
(1) SACR 302
(GP), save to say that in Mthethwa the accused used a
hammer not a firearm to rob the victims.
The
appellants were convicted by the regional court, Pretoria, on two
counts of housebreaking with intent to rob and robbery with
aggravating circumstances. The genesis of the convictions and the
sentences is two robberies on 19 November 2009 during which the
appellants robbed Mrs Alida Spronk and Mrs Annete Botes, in almost
similar circumstances, and within minutes of each other. The
appellants entered the house of Mrs Pronk at approximately 10h30 by
breaking the entrance gate and the main entrance door. She
was alone
at the time. She was threatened with a hammer, and her laptop
computer was stolen, the value of which she estimated to
be R9 000.
The
appellants had spent close to three years in custody awaiting
finalisation of their trial. The trial court found that to
constitute
substantial and compelling circumstances, hence it deviated from the
imposition
of the prescribed
minimum sentence of 15 years’ imprisonment on each count of
robbery.
[18]
The last submission regarding the issue that the appellant was
incarcerated due to parole
evidence is contrary to the address by the
appellant’s
counsel during mitigation where he presented
to court that the appellant was
a
first offender. He had no
previous and pending cases against him. This is not the only
inconsistency which the court identified
in the
appellant’s
heads. Mistakes of this nature should not be taken lightly as
they have a great impact on the court’s assessment
of
facts,
subsequently leading to
the
court
making a
decision based on such wrong information.
Appellant’s
counsel needs to be scrupulous when preparing documents and
presenting facts to court.
CONCLUSION
[19]
The personal circumstances of the appellant, specifically his age and
the fact that he is a first
offender should
be taken into
consideration
to determine whether the appellant can be
rehabilitated.
[20]
An unwarranted day in prison should be avoided
at
all costs
because it affects a person rights to human dignity and freedom. The
appellant
spent
a considerable period
of time
in custody awaiting trial
for reasons
that were not purely
of
his own doing
. This period should be a compelling factor
in considering a lesser sentence than the prescribed minimum
sentence.
[21]
Another factor to be taken into consideration
has to do with
the circumstances of the commission of the offence. The offence was
committed by a gang of a minimum of 6 people however, only
two people
were arrested and the appellant was the only person convicted.
This
too forms part of compelling and substantial factors
on the basis
of which the court may deviate from
the imposition of the
prescribed minimum sentence.
[22]
Considering
all the relevant factors, I am of the view that the sentence imposed
upon the appellant by the court a court
a
quo
is overly harsh; much as it is disproportionate to the offence
committed. I view that a period of 10 years’ imprisonment
would
satisfy the aims of punishment and it would be fair to the society
and the appellant in the sense that rehabilitation shall
be enabled.
IN
THE RESULT, I PROPOSE THAT THE FOLLO
WING ORDER
BE MADE:
ORDER
1]
Appeal against sentence is upheld;
2]
The sentence
imposed by the regional court is set aside;
3]
The imposed sentence of 15
years’
direct imprisonment is substituted by
sentence
of 10 years’ direct imprisonment
J
T LESO
ACTING
JUDGE OF THE HIGH COURT
I AGREE
AND IT IS SO ORDERED
MAUMELA
T.A.
JUDGE
OF THE HIGH COURT
DATE
OF THE HEARING:
22 OCTOBER 2019
DATE
OF JUDGEMENT:
10 FEBRUARY 2021
APPEARENCES
FOR THE
APPELLANT :
M G BOTHA
PRETORIA
JUSTICE CENTRE
LEGAL
AID BOARD
Tel
: 079 081 0282
E-mail:
martinb@legal-aid.co.za
FOR
THE RESPONDENT
:
A.L. Ahlers
Senior State Advocate: Specialist
Tax Unit
Director of Public Prosecutions
Gauteng: Pretoria
Cell: 081 252 4365
Office
number: 012 351 6830
E-mail:
alahlers@npa.gov.za
[1]
2001(1)
SACR 469 (SCA)
[2]
1969 (2)
SA 537 (A)
[3]
2015(1)
SACR 302 (GP)
[4]
2012(1)
SACR 87 (GNP
[5]
1984 (3)
SA 327 (A),
[6]
2001 (1)
SACR 594 (CC),
[7]
1979 (3)
SA 846
(A) p 857 at F
[8]
2010(2)
SACR 311 (SCA) at 314 C
[9]
1997(1)
SACR 515 (SCA) at 523 g-j
[10]
2008(1)
SACR 543 (SCA)
[11]
2009 (1)
SA CR 552 (SCA)
[12]
2006(2) SACR
563 (SCA)