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[2021] ZAGPPHC 399
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Masekoane v S (A301/2020) [2021] ZAGPPHC 399 (21 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A301/2020
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
DATE:
21 June 2021
In
the matter between:
HENDRIK
MASEKOANE
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOKOSE
J
[1]
The appellant, who was represent ed in the
court
a quo,
was
charged in the Regional Court sitting at Pretoria North with
eight counts of robbery with aggravating circumstances, one
count of
possession of an unlicensed firearm and one count of possession of
ammunition in contravention of
Section 90
of the
Firearms Control Act
of 2000
.
[2]
The appellant had initially pleaded not guilty to all the charges and
the State proceeded to lead evidence. However, several months into
the evidence, the appellant made certain admissions in terms
of
Section 220 of the Criminal Procedure Act 1977 (“the CPA”)
in respect of all the elements of the offences. The formal
admissions
were accepted by the State who handed in certain documents including
a ballistic report pertaining to count 9 as part
of the record.
[3]
The appellant was convicted on the ten counts as charged and
was
sentenced as follows:
(i)
Counts 1 to 8 : 15 years’ imprisonment on
each count;
(ii)
Count 9:
5 years’ imprisonment;
(iii)
Count 10:
1 year’s imprisonment.
[4]
The Magistrate ordered that the sentences in respect of counts
1 to 6
will be served concurrently and that those pertaining to counts 7 and
8 will also be served concurrently in terms of Section
280(2) of the
CPA. The sentences pertaining to counts 9 and 10 were also ordered to
run concurrently. An effective term of 35 years
was imposed on the
appellant.
[5]
The Magistrate further ordered that in terms of Section
276B of the
CPA, a non-parole period of 23 years and 3 months was fixed, that
being two-thirds of the effective sentence. The appellant
was also
declared unfit to possess a firearm in terms of
Section 103(1)
of the
Firearms Control Act 2000
.
[6]
The appellant sought leave from the Magistrate to appeal his
sentences
and in particular, the order in terms of
Section 2768
of
the CPA. The application was dismissed. On petition, leave to appeal
against sentence was granted.
[7]
The appellant submitted that the court
a quo
erred in imposing
an effective sentence of 35 years’ imprisonment despite the
fact that it had ordered that certain sentences
are to run
concurrently. Furthermore, the appellant submitted that the court
erred in not taking into account his personal circumstances
and had
over emphasised the aggravating circumstances by attaching too much
weight to the severity of the offences. Furthermore,
the appellant
was of the view that the Magistrate failed to take into consideration
the fact that the appellant was remorseful
which had been seen in his
admission to the offences in terms of
Section 220
CPA. Accordingly,
he was of the view that the sentences imposed were shockingly harsh
and induced a sense of shock.
[8]
Counsel for the appellant conceded that the court
a quo
was
correct in finding that no substantial and compelling circumstances
existed to enable the court to deviate from the minimum
sentences
imposed in respect of counts 1 to 8. He also conceded that the
Magistrates’ court was correct in its finding that
with regards
to count 9, the prescribed minimum sentence of 15 years would be
disproportionate to the crime and imposed a lesser
sentence, being 5
years’ imprisonment.
[9]
It
is trite law that sentence is pre-eminently at the discretion of the
trial court. The court of appeal
may
interfere with
the
sentencing discretion
of the court of first
instance
if
such discretion had not been judicially exercised.
Marais AJ in
the matter of
S
v Malgas
[1]
observed
that:
“
A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the
question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers
it. To do so
would be to usurp the sentencing discretion of the trial court. Where
a material misdirection by the trial court vitiates
its exercise of
that discretion, an appellate court is of course entitled to consider
the question of sentence afresh. In so doing,
it assesses sentence as
if it were a court of the first instance and the sentence imposed by
the trial court has no relevance.
As it is said, an appellate court
is at large. However, even in the absence of material misdirection,
an appropriate court may
yet be justified in interfering with the
sentence imposed by the court. It may do so only
where
the disparity between the sentence of the trial court and the
sentence which the appellate court would have imposed had it
been the
trial court is so marked that it can properly be described as
‘shocking’, ‘startling’ or ‘disturbingly
inappropriate’. It must be
emphasized
that in the latter situation the appellate court is large in the
sense in which it is at large in
the
former .
In the
latter
situation, it may not substitute the sentence which it thinks
appropriate merely because it does not accord
with the
sentence imposed
by the
trial
court or because it prefers it to that sentence. It may do so only
where the difference I so substantial
that it
attracts epithets of the
kind
I have
mentioned.”
[10]
When imposing sentence, a court must try to balance the nature
and
circumstances of the offence, the circumstances of the offender and
the impact that the crime had on the community. It must
ensure that
all the purposes of punishment are furthered. It will take into
consideration the established main aims of punishment
being
deterrence, prevention, reformation and retribution .
S
v Zinn
1969 (2) SA 537
(A)
[11]
The approach was followed by the
court
in the matter of
S
v
Rable
[2]
where
Holmes JA said:
“
Punishment
should fit the criminal as well as the crime, and be fair to society,
and be blended with a measure of mercy according
to the
circumstances.”
[12]
A cursory reading of the record indicates that the Magistrate had
taken note of the appellant’s
mitigating circumstances which
were contained in the pre-sentencing report . The Magistrate noted
that in 2011 the appellant had
previously been convicted of house
breaking and was given a suspended sentence . In 2013 the appellant
was again convicted of common
robbery and sentenced to a suspended
sentence. The Magistrate noted further that the appellant mentioned
in the pre- sentencing
report that he had committed many previous
offences but was never arrested . He further noted that the appellant
had dropped out
of school in Grade 9 and never had any formal
employment. He was unmarried and had no children. These were
all mitigating
circumstances.
[13]
I am satisfied that the Magistrate considered all the victim impact
reports as well as the pre- sentencing
report of the appellant in
exercising his judicial discretion.
[14]
Furthermore, it was submitted on behalf of the appellant that the
court
a quo
had failed to take into account that he had
subsequently pleaded guilty and as such showed remorse. The appellant
submits that these
are facts that the Magistrate should have taken
into account in sentencing.
[15]
Poonan JA in
the
matter of
S
v Matyityi
[3]
said:
“
There is,
moreover, a chasm between regret and remorse. Many accused persons
might well
regret
their conduct but that does not
without
more translate
to
genuine
remorse.
Remorse
is a gnawing pain of conscience for the plight of another. Thus,
genuine contrition can only
come
from an appreciation and acknowledgement of the extent of one’s
error. Whether the
offender
is sincerely remorseful and not merely feeling sorry for himself at
having been caught
is a
factual quest ion. It is the surrounding actions of the accused
rather than what he says in
court
that one should look at. in order for the remorse to be a valid
consideration, the penitence must be sincere and the accused
must
take the court fully into his or her confidence. Unt il and unless
that happens the genuineness of the contrition alleged
to exist
cannot be determined.”
[16]
No evidence was led by the appellant as proof of the genuineness of
the contrition
and sincerity of the appellant. It was merely stated
that that he was remorseful in the pre -sentencing report.
Accordingly, I
am satisfied that the Magistrate did not err in
sentencing the appellant and that the admissions which were made
during the course
of the trial were not intended to shorten the
course of the trial but made because the evidence which had already
been given stacked
heavily against him. Furthermore, I am of the view
that the sentence imposed does not induce a sense of shock and is not
disproportionate
to the offences.
[17]
The further issue to be decided is whether the Magistrate
in the
court
a quo
misdirected himself by ordering a non-parole
period before the appellant can be considered for parole.
[18]
The appellant further contends that although the court
a
quo
afforded his legal representative an opportunity to address the court
on the intention to order a non-parole period, such an opportunity
was not afforded to the State to indicate whether the appellant was
deserving of the imposition of a non-parole period.
[19]
Section 276B
(1) of the CPA reads as follows:
“
276
B
Fixing of Non-parole period
(1)(a) If a
court sentences a person convicted of an offence to imprisonment of a
period of two years or longer, the court
may as part of the sentence,
fix a period during which the person shall not be placed on parole.
(b)
Such period shall be referred to as the non-parole period, and may
not exceed two thirds
of the term of imprisonment imposed or 25
years, whichever is the shorter.”
[20]
Section
276B
does not confer an automatic right to parole but places a
prisoner in a position to be considered for parole by a Parole Board.
A court imposing a sentence which provides that a prisoner
is
not
entitled
to
parole
is
usurping
or
encroaching
upon
the
Executive
function,
to
wit,
Correctional
Services
Department, the latter being
an
entity vested with the
right by the legislature to entertain the
dynamics
of parole.
[4]
[21]
The court in the matter of
Jimmale
and Another v S
[5]
held
the following:
“
Precedent makes
it clear that a
section 276B
non-parole order should not be resorted
to lightly. Courts should generally allow the parole board and the
officials in the Department
of Correctional Services, who are guided
by the Correctional Services Act, and the attendant regulations, to
make parole assessments
and decisions. Courts should impose a
non-parole period when circumstances specifically relevant to parole
exist, in addition to
any aggravating factors pertaining to the
commission of the crime for which there is evidential basis.
Additionally, a trial Court
should invite and hear oral argument on
the specific question before the imposition of a non-parole period.”
[22]
The appellant submits that although the court
a quo
afforded
the legal representative an opportunity to address it on the
imposition of a non-parole period and the legal representative
chose
not to address the court on this aspect without consulting the
appellant, that does not absolve the court itself from properly
investigating or ordering further evidence to be led before making
such a decision.
[23]
A cursory ready of the record indicates that the Magistrate in the
court
a quo
misdirected herself in failing to afford both
parties an opportunity to address the court in respect of the
imposition of a non-parole
period and properly investigate the
exceptional circumstances which exist to enable such a decision to be
made. Accordingly, I
uphold the appeal in respect of the imposition
of the non parole period.
[24]
In the circumstances, I propose that the appeal against
sentence be
limited to the order relating to the imposition of a non-parole . The
entire sentence of the court a quo is substituted
as follows:
(i) Count
1 - the appellant is sentenced to 15 years’ imprisonment
in
terms of Section 51(2)(A)(1) of Act 105 of 1997;
(ii) Count
2 - the appellant is sentenced to 15 years’ imprisonment
in
terms of Section 51 (2 )(A)(1) of Act 105 of 1997;
(iii) Count
3 - the appellant is sentenced to 15 years’ imprisonment
in
terms of Section 51 (2)(A)(1) of Act 105 of 1997;
(iv) Count
4 - the appellant is sentenced to 15 years’ imprisonment
in
terms of Section 51(2)(A)(1) of Act 105 of 1997;
(v) Count
5 - the appellant is sentenced to 15 years’ imprisonment
in
terms of Section 51 (2)(A)(1) of Act 105 of 1997;
(vi) Count
6 - the appellant is sentenced to 15 years’ imprisonment
in
terms of Section 51 (2)(A)(1) of Act 105 of 1997;
(vii) Count
7 - the appellant is sentenced to 15 years’ imprisonment
in
terms of Section 51(2)(A)(1) of Act 105 of 1997;
(viii) Count
8 - the appellant is sentenced to 15 years’ imprisonment
in
terms of Section 51 (2 )(A)(1 ) of Act 105 of 1997;
(ix) Count
9 - the appellant is sentenced to a period of 5 years’
imprisonment ; and
(x) Count
10 - the appellant is sentenced to a period of 1 years’
imprisonment.
(xi) It
is ordered, in terms of Section 280(2) of Act 51 of 1977, that
the
sentences imposed in counts 1 to 6 be grouped together and will be
served concurrently;
(xii) It
is ordered, in terms of Section 280(2) of Act 51 of 1977, that
the
sentences imposed in counts 7 and 8 be grouped together and will be
served concurrently;
(xiii) It
is ordered, in terms of Section 280(2) of Act 51 of 1977, that
the
sentences imposed in count s 9 and 10 be grouped together and will be
served concurrently;
(xiv)
The appellant will serve an effective period of 35 years'
imprisonment;
and
(xv)
The appellant is deemed unfit and accordingly declared unfit to
possess a firearm in terms of Section 103(1) of Act 60 of 2000.
MOKOSE J
Judge of the High Court
of South Africa, Gauteng
Division, PRETORIA
I agree and is so ordered
MEERSINGH
AJ
Acting
Judge of the High Court of
South
Africa, Gauteng Division,
PRETORIA
For
the Appellant:
Mr
Emile Viviers instructed by
Ernie
Viviers Attorneys
For
the State:
AdvJP
Krause instructed by
The
Office of the Director of Public Prosecutions
Pretoria
Date of
hearing:
27 May 2021
Date
of judgement:
21 June 2021
[1]
[2001] 3 All SA 220
(SCA)
para 12
[2]
1975 (4) SA 855
at
862
G
- H
[3]
2011 (1) SA 40
(SCA) at para 19
[4]
Article by N Mgedeza and D M asuku De Rebus dd 29 August 2016: When
is it appropriate for the sentencing court to interfere with
parole?
[5]
2016 (2) SACR 691
(CC) at para 20