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[2017] ZASCA 55
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Zimila v S (1179/16) [2017] ZASCA 55 (18 May 2017)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No: 1179/16
In the matter
between:
ANTHONY
ZIMILA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Zimila
v S
(1179/16)
[2017] ZASCA 55
(18 May 2017)
Coram:
Shongwe ADP, Mbha and Van der Merwe JJA and
Molemela and Coppin AJJA
Heard:
2 May 2017
Delivered:
18 May 2017
Summary:
Criminal Law and Procedure : Sentence :
cumulative effect thereof where appellant convicted of similar
multiple offences : circumstances
in which an appellate court will
interfere : interference warranted.
ORDER
On appeal
from:
Gauteng Division of the High Court,
Pretoria (Claassen J and Legodi J concurring) sitting as court of
appeal.
1
The
appeal is upheld.
2
The order of the court a quo is set aside and replaced with the
following:
‘
(a)
On count 1 the appellant is sentenced to 15 years’
imprisonment.
(b) On count 4 the appellant is sentenced to 15 years’
imprisonment.
(c)
On count 5 the appellant is sentenced to 3 years’ imprisonment.
(d)
On count 6 the appellant is sentenced to 7 years’ imprisonment.
(e)
On count 13 the appellant is sentenced to 20 years’
imprisonment.
(f)
On count 15 the appellant is sentenced to 15 years’
imprisonment.
(g)
The sentences in respect of counts 4, 5 and 6 are ordered to run
concurrently with the sentence imposed in respect of count
1.
(h)
The sentence imposed in respect of count 15 is ordered to run
concurrently with the sentence imposed on count 13.
(i) Effectively, the
appellant is sentenced to 35 years’ imprisonment.
(j)
The sentences are antedated to 25 March 2004.’
JUDGMENT
Shongwe
ADP (Mbha, Van der Merwe JJA and Molemela and Coppin AJJA concurring)
[1]
This appeal is with special leave of this court and is limited to the
cumulative effect of the sentences imposed. The appellant
having been
convicted of multiple robberies with aggravating circumstances,
including attempted murder and the unlawful possession
of a firearm
in terms of s 2 read with s 1, 39(1), 39(2) and 40 of the Arms and
Ammunitions Act 75 of 1969, was sentenced to a
total of 77 years’
imprisonment by the Regional Court, Benoni, Gauteng. On appeal
against the convictions and sentences to
the Gauteng Division of the
High Court, Pretoria (Claassen J and Legodi J concurring), the appeal
was partly successful in that
it was upheld in respect of certain
charges and the effective sentence was reduced to 53 years’
imprisonment. This court
was asked to consider, as stated above,
whether the cumulative effect of the sentences was too severe.
[2]
The multiple offences, twenty one counts in all, were committed on
various occasions, with the appellant acting as part of a
group and
using the same
modus
operandi
. The
victims were way-laid at their respective homes by the robbers. They
were accosted, tied up, their houses ransacked, jewellery
and other
valuables, including a number of motor vehicles, forcibly removed.
This spate of robberies, which were, no doubt, premeditated
and well
executed, took place between the period April 1999 and March 2002.
The appellant was apprehended on 19 March 2002.
[3]
The appellant conceded that he was convicted of serious offences and
that a long term of imprisonment is unavoidable. He conceded
further
that the sentences, when considered individually, are unassailable.
However, it was submitted on his behalf that the court
a quo did not
sufficiently reduce the cumulative term of imprisonment. It was
argued that therein laid the misdirection which justifies
this court
to interfere with the sentences by ordering that parts of the
sentences run concurrently.
[4]
On the other hand, on behalf of the respondent, Ms Vorster, cautioned
that this court should not send an incorrect message to
the lower
courts, which would diminish the seriousness of the offences. She
mentioned that the value of the goods that were forcibly
removed was
very high. In one incident in respect of the robberies at the Du
Toit’s family home, (count 1), goods worth more
than R1
million, which included three expensive motor vehicles, were removed.
She argued further that the sentences imposed were
appropriate,
considering that no substantial and compelling circumstances were
found to exist. The appellant conceded this point.
She urged this
court to confirm the sentences imposed and submitted that the
cumulative effect of the sentences was not shockingly
inappropriate
and therefore no misdirection occurred in the court a quo.
[5]
There is a myriad of case law dealing with sentencing in general and
the cumulative effect thereof in particular. In
S v Rabie
1975
(4) SA 855
(A) at 857 D-F Holmes JA observed that:
‘
1
In every appeal against sentence,
whether imposed by a magistrate or a Judge, the
Court hearing
the appeal -
(a)
should be guided by the principle
that punishment is "pre-eminently a matter for the
discretion of the trial Court";
and
(b)
should be careful not to erode such
discretion: hence the further principle that the
sentence
should only be altered if the discretion has not been
"judicially and properly exercised".
2 The test under
(b)
is
whether the sentence is vitiated by irregularity or misdirection or
is disturbingly inappropriate.’
The
above quoted statement reflects the starting point and the test to be
applied when dealing with an appeal against sentence generally.
Upon
finding that the sentence is vitiated by a misdirection or is
disturbingly inappropriate, the appeal court must interfere
and
consider sentence afresh.
[6]
I now turn to deal with the facts of this case and the applicable
principles. After the regional court sentenced the appellant
to an
effective 77 years’ imprisonment, the full court found that in
respect of certain counts there was a splitting of charges,
as well
as some calculation errors in respect of the total number of years of
imprisonment. The full court found, therefore, that
there was a
misdirection and decided to interfere and sentence the appellant
afresh. It reasoned that the regional court took all
the factors on
sentence into account but failed to consider the cumulative effect of
the sentences. It further reasoned that a
period of 45 – 50
years imprisonment, cumulatively, would be appropriate in the
circumstances. However, it made an error
itself by computing the
total number to be 49 years of imprisonment. It later corrected the
error and made the effective imprisonment
sentence to be 53 years,
which it arrived at as follows: It acquitted the appellant on counts
2, 9 and 11 and confirmed the convictions
and sentences on counts : 1
(Robbery with aggravating circumstances) and sentenced to 15 years’
imprisonment; Count : 4 (Robbery
with aggravating circumstances) and
sentenced to 15 years’ imprisonment; Count : 5 (Possession of
unlicensed firearm) and
sentenced to 3 years’ imprisonment;
Count : 6 (Attempted murder) and sentenced to 7 years’
imprisonment; Count : 13
(Robbery with aggravating circumstances) and
sentenced to 20 years’ imprisonment (motivation being that
threats and a firearm
were directed at children); and Count : 15
(Robbery with aggravating circumstances) and sentenced to 15 years’
imprisonment.
It ordered some of the sentences to run concurrently,
hence, the effective sentence of 53 years’ imprisonment.
[7]
None of the charges against the appellant individually warranted a
sentence of life imprisonment. Nevertheless the eventual
effective
sentence is tantamount to imposing a sentence which has the effect of
removing the appellant permanently from society.
He would be released
at age 89, as he was 36 years old when he was sentenced. In other
words, a sentence of 53 years’ imprisonment
has the potential
of being more onerous than life imprisonment. I say this because,
presently, in terms of
s 73(6)
of the
Correctional Services Act 111
of 1998
, a person sentenced to life imprisonment may be considered
for release on parole after serving 25 years in prison. (See
S v
Mhlakaza & another
1997 (1) SACR 515
(SCA) at 521 G-I) where
Harms JA remarked that:
‘
Apart from the fact that courts are not
entitled to prescribe to the executive branch of government as to how
and how long convicted
persons should be detained (see the clear
exposition by Kriegler J in
S v
Nkosi (1), S v Nkosi (2), S v Mchunu
1984
(4) SA 94
(T)) courts should also refrain from attempts,
overtly or covertly, to usurp the functions of the executive by
imposing
sentences that would otherwise have been inappropriate.’
In
S v Nkosi & others
2003 (1) SACR 91
(SCA) at 94 –
Farlam JA observed that:
‘
[7]
As was stated in
S v Bull and Another; S v Chavulla
and Others
2001
(2) SACR 681
(SCA)
at 693
j
- 694
a
,
this Court has, since the abolition of the death penalty,
“consistently recognised that life imprisonment is the most
severe
and onerous sentence that can be imposed and that it is the
appropriate sentence to impose in those cases where the accused must
effectively be removed from society”.
In
the
Bull
case it was also pointed out (at 694
b
)
that this Court has repeatedly warned against excessively long
sentences being imposed to circumvent the premature release of
prisoners by the Executive
.’
[8]
It is trite that sentencing is the most difficult part of a criminal
trial, especially where there are multiple charges and
the trial
court has to consider the cumulative effect of the sentences. This
court has on numerous occasions stated that reference
to prior
decided cases on sentence is a useful aid or tool to assist a court
in determining an appropriate sentence. In the final
analysis, each
case must be decided on its own merits. Needles to mention, no two
cases are the same.
[9]
An appellate court will therefore interfere with a sentence of the
court a quo in instances where there is a striking disparity
between
what it determined as an appropriate sentence and what the appellate
court considers ought to have been an appropriate
sentence. (See
Road
Accident Fund v Murunga
2003
(5) SA 164
(SCA) para 23 – a civil matter, but the principle
applicable is the same; – see also
S
v Matlala
2003 (1)
SACR 80
(SCA) at para 9 and 10 and the cases cited therein). In the
present case this court has a clear and definite view that it would
not have imposed a cumulative sentence of this magnitude, as it has
the potential of being more onerous than life imprisonment.
On that
basis, this court is at liberty to interfere and reconsider the
cumulative effect of the sentence afresh.
[10]
The regional court, as well as the court a quo, considered all the
purposes of punishment, the personal circumstances of the
appellant,
the seriousness of the offences and the interest of society. There is
no need to repeat same. The area of interference
will be in respect
of making certain sentences to run concurrently with count 1 and the
sentences in counts 13 and 15 to run concurrently.
The logic is that
when considering an appropriate sentence, the regional court
considered all the necessary factors, therefore,
since the offences
are similar in nature, it would serve the interests of justice to
mitigate the length of the sentence by ordering
some of the counts to
run concurrently.
[11]
I therefore propose what is stated in the order below to be an
appropriate effective sentence, taking into account the cumulative
effect of the individual sentences.
[12]
The following order is made:
1
The appeal is upheld.
2
The order of the court a quo is set aside and replaced with the
following:
‘
(a)
On count 1 the appellant is sentenced to 15 years’
imprisonment.
(b) On count 4 the appellant is sentenced to 15 years’
imprisonment.
(c)
On count 5 the appellant is sentenced to 3 years’ imprisonment.
(d)
On count 6 the appellant is sentenced to 7 years’ imprisonment.
(e)
On count 13 the appellant is sentenced to 20 years’
imprisonment.
(f)
On count 15 the appellant is sentenced to 15 years’
imprisonment.
(g)
The sentences in respect of counts 4, 5 and 6 are ordered to run
concurrently with the sentence imposed in respect of count
1.
(h)
The sentence imposed in respect of count 15 is ordered to run
concurrently with the sentence imposed on count 13.
(i) Effectively, the
appellant is sentenced to 35 years’ imprisonment.
(j) The sentences are
antedated to 25 March 2004.’
____________________
J B Z Shongwe
Acting
Deputy President
Appearances:
For the Appellant:
H L Alberts
Instructed by:
Justice Centre, Pretoria
Justice Centre, Bloemfontein
For the Respondent:
P Vorster
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein