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[2017] ZASCA 106
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Rontlai v S (1178/2016) [2017] ZASCA 106; 2018 (1) SACR 1 (SCA) (13 September 2017)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 1178/2016
In the matter between:
KARABO
RANTLAI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Rantlai v The State
(1178/2016)
[2017] ZASCA 106
(13 September 2017)
Coram:
Bosielo, Seriti and Saldulker JJA and Plasket and
Tsoka AJJA
Heard
:
17 August 2017
Delivered
13 September 2017
Summary:
Appeal
against sentence – appellant convicted on three counts of
robbery read with s 51(2)(
a
)
of the
Criminal Law Amendment Act 105 of 1997
, as amended by the
Criminal Law (Sentencing ) Amendment Act 38 of 2007 and one count of
unlawful possession of a firearm and one
of unlawful possession of
ammunition – all three counts of robbery were taken together
for purposes of sentence – the
appellant was sentenced to a
composite sentence of 20 years’ imprisonment – the
conviction in respect of one count
of robbery set aside on appeal –
the original sentence not altered – whether the composite
sentence imposed on appellant
was appropriate.
ORDER
On appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Makgoka J and
Sethusha AJ sitting as court of appeal):
1
The appeal against sentence in respect of counts 2 and 3 is upheld.
2
The sentence imposed by the trial court in respect of counts 1, 2 and
3 is set aside
and replaced by the following:
‘
(a)
In respect of count 2, the appellant is sentenced to 15 years’
imprisonment.
(b)
In respect of count 3, the appellant is sentenced to 15 years’
imprisonment.’
3
In terms of
s 280(2)
of the
Criminal Procedure Act 51 of 1977
, the
sentence imposed in respect of count 2 is ordered to run concurrently
with the sentence imposed in respect of count 3.
4
The sentences of imprisonment of 15 years in respect of the unlawful
possession of a
semi-automatic firearm, of which 11 years is wholly
suspended for a period of 5 years on condition that the accused is
not convicted
of possession of an unlicensed firearm in contravention
of the Firearms Control Act, and which offence is committed during
the
period of suspension where direct imprisonment is imposed without
the option of a fine, together with imprisonment for 1 year imposed
in respect of the unlawful possession of ammunition remain unaltered.
Effectively the appellant will undergo imprisonment for 5
years.
5
Taking into consideration, the sentences in respect of counts 4 and
5, the accused will
therefore undergo imprisonment for an effective
period of 20 years.
6
In terms of
s 282
of the
Criminal Procedure Act 51 of 1977
, the
sentence imposed in respect of paragraph 2 above, is antedated to 3
May 2012.
JUDGMENT
Bosielo JA
(Seriti and Saldulker JJA and Plasket and Tsoka AJJA
concurring):
[1]
The appellant was convicted in the Regional Court, Orlando on three
counts of robbery with aggravating circumstances read with
s 51(2)(
a
)
of the Criminal Law Amendment Act 105 of 1997 (the Act) as amended by
the
Criminal Law (Sentencing) Amendment Act 38 of 2007
, one count of
unlawful possession of a semi-automatic firearm (count 4) and one
count of unlawful possession of ammunition (count
5). He was
sentenced to 20 years’ imprisonment on all three counts of
robbery with aggravating circumstances. The trial court
took all
three counts together for purposes of sentence. In respect of count
4, the appellant was sentenced to 15 years’
imprisonment with
11 years wholly suspended for 5 years on suitable conditions. This
meant that he was sentenced to an effective
term of 4 years’
imprisonment. In respect of count 5, he was sentenced to 1 year
imprisonment. His effective sentence was
thus 25 years’
imprisonment.
[2] The appellant failed in
his application for leave to appeal before the regional magistrate
against both his conviction and sentence.
Upon leave to appeal having
being refused, he filed a petition with the Gauteng Local Division,
Johannesburg for leave to appeal.
The court a quo granted him leave
to appeal against his conviction only.
[3] The appellant’s
appeal before the court a quo succeeded partly in that the conviction
on count 1 was set aside. However,
the court below left the sentence
of an effective 25 years’ imprisonment unaltered. Aggrieved by
this, he then petitioned
this Court for special leave to appeal
against the order of the court a quo which essentially confirmed the
sentence imposed by
the regional magistrate. This Court granted the
appellant special leave to appeal against the sentence to this Court.
Hence the
appeal before us.
[4] Because this appeal
turns on a narrow legal issue, it is not necessary to deal with the
evidence tendered. The appellant’s
counsel attacked the
sentence on two grounds. The first ground was that the regional
magistrate failed to investigate and consider
if there were
substantial and compelling circumstances present, as required by
s
51(3)
of the
Criminal Law Amendment Act 105 of 1997
, which could
justify a departure from the minimum sentence prescribed by
s
51(2)(
a
) of the Act.
In support of his submissions, he relied on the following facts,
namely the appellant’s youthfulness; that there
were no
injuries caused to the complainants during the robberies; that only
two cellular phones were taken, and that the appellant
had spent
almost a year in prison awaiting his trial. He submitted that these
facts, considered cumulatively, are weighty and substantial
enough to
justify a departure from the minimum sentence of 15 years’
imprisonment.
[5] The second attack was
against the globular sentence of 20 years’ imprisonment imposed
on the appellant in respect of three
counts of robbery which were
considered together for purposes of sentence. The attack was premised
on the basis that, notwithstanding
the fact that the conviction in
count 1 (robbery with aggravating circumstances) was set aside by the
court below, the court below
did not take that into account when
considering an appropriate the sentence. In fact it left the sentence
imposed by the regional
magistrate intact. In simple terms the
argument is that the appellant is still serving a globular sentence
of 20 years’ imprisonment
as if the conviction on count 1 still
stands.
[6] On the contrary, the
respondent’s counsel submitted, regarding the first ground,
that the facts and personal circumstances
put forward by the
appellant did not qualify as substantial and compelling circumstances
justifying a departure from the minimum
sentence prescribed by the
Act. However, he conceded that the composite sentence of 20 years’
imprisonment appeared, in the
circumstances of this case, to be
undesirable, inappropriate and impractical as it was impossible to
ascertain how to apportion
the sentence in respect of each count of
robbery. To resolve this conundrum, he submitted that it would be
practical and just if
the globular sentence imposed by the trial
court in respect of counts 1, 2 and 3 could be set aside and
substituted with a sentence
of 15 years’ imprisonment in
respect of counts 2 and 3. He conceded further that in order to
ameliorate the severity of the
sentence, the sentences imposed should
be ordered to run concurrently.
[7] Once again, this appeal
raises the contentious issue of the desirability and practicality of
imposing a globular sentence where
an accused who pleaded not guilty
to multiple counts is partly successful in his appeal against one or
other convictions as it
happened in this case. The real question
facing us as a court of appeal is, how do we undo the globular
sentence of 20 years’
imprisonment to enable the appellant to
get the benefit of an acquittal on count 1, for, should we do nothing
about it, it would
mean that his success on appeal is nothing but a
pyrrhic victory.
[8] Having listened to both
counsel, I am not persuaded that the facts put before us by the
appellant’s counsel qualify as
substantial and compelling as
interpreted by our courts, in particular in the seminal judgment of
S
v Malgas
2001 (1) SACR 469
(SCA) at paras
20-22. It suffices to state that they are ordinary circumstances
which do not qualify as cogent or sufficiently
weighty to justify a
departure from a sentence peremptorily prescribed by the legislature
for the kind of offences for which the
appellant was convicted. To
put it differently, in the circumstances it appears to me that the
prescribed sentences in respect
of counts 2 and 3 are not
disproportionate to the crimes, the criminal and the legitimate needs
of society. I therefore find that
there is no merit in the
appellant’s counsel’s submission.
[9] It is widely accepted
that there is no law which prohibits or provides for the imposition
of a globular sentence. See
S v Young
1977 (1) SA 602
(A) at
610E. The imposition of a globular sentence depends upon the
discretion of the sentencing officer based on the peculiar
facts of
the case. However, our courts have on various occasions expressed
some misgivings about such sentences particularly where
an accused
was convicted after having pleaded not guilty but subsequently having
the conviction on some counts set aside on appeal.
See
Director of
Public Prosecutions, Transvaal v Phillips
[2011] ZASCA 192
;
2013
(1) SACR 107
(SCA) para 27 where Petse AJA stated:
‘The practice of imposing globular
sentences for multiple counts is generally an undesirable one.’
See also
S
v Kruger
[2011] ZASCA 219
;
2012 (1) SACR 369
(SCA) para 10.
[10] As it is clear from
Young,
Kruger
and
Phillips
that there is no absolute bar against imposing globular sentences,
there seems to be some unanimity in our courts that, depending
on the
facts of each case, it can be effectively used in exceptional
circumstances. See
S v Nkosi
1965
(2) SA 414
(C) at 416C. This is because there will be circumstances
where for instance it can be used to ameliorate the effect of
sentences
which individually may appear to be shockingly
inappropriate. Furthermore, such a sentence may be appropriate where
an accused
pleaded guilty on multiple offences which are closely
connected in terms of time and common facts and in respect whereof
the individual
sentences may, cumulatively amount to a sentence that
induces a sense of shock. There may of course be other cases where
such a
sentence might be appropriate.
[11] The serious
difficulties which are likely to be caused by imposing such a
sentence were highlighted as far back as
Nkosi
(supra) where
the court stated at 415-416:
‘In the vast majority of cases no
practical advantage results from imposing a globular sentence. A
reasonable sentence can
usually be determined by deciding upon a
reasonable sentence for each offence and then by scaling down the
sentences if the cumulative
effect renders the total unreasonable. An
exception would seem to arise in cases where it is decided to impose
a reformatory sentence
or a sentence of whipping, and there may be
other such cases. But as pointed out by Van Den Heever J. (as he then
was), in
R v Frankfort Motors (Pty) Ltd.,
1946 OPD. 255
at pp.
267-8, the imposition of a globular sentence often causes
difficulties on appeal or on review and this seems to be the reason
underlying the practice in England.’
The same misgivings were
expressed by Trollip JA in
S v Young
at 610 as follows:
‘Appellant’s counsel
contended that counts 1 to 4 should be taken together for the purpose
of imposing one sentence
thereon, and that counts 5 to 7 should be
dealt with similarly. That procedure is neither sanctioned nor
prohibited by the Criminal
Procedure Act, 56 of 1955. 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. But
according to several decisions by the Provincial Divisions (see, eg.,
S v Nkosi
,
1965 (2) SA 414
(C), where the authorities are
collected) the practice is undesirable and should only be adopted by
lower courts in exceptional
circumstances. The main reason for
frowning upon the practice mentioned in these cases is the difficulty
it might create on appeal
or review, especially if the convictions on
some but not all of the offences were set aside. As any sentence
imposed by this Court
is definitive, that objection to the practice
is, of course, not applicable. However, in the present case I think
it conduces to
clearer thinking in determining the appropriate
sentences to treat each offence separately. Moreover, no risk of
duplication of
punishment thereby arises for each offence is
sufficiently distinct, different and serious; and in the ultimate
result the cumulative
effect of all the sentences imposed can be
otherwise suitably controlled to avoid undue harshness to the
appellant.’
[12] As alluded to already,
the main argument in this appeal is that because of the globular
sentence of 20 years’ imprisonment
in respect of all three
counts of robbery, the appellant was wrongly denied the benefit which
should have redounded to him when
count 1 was set aside. It was
submitted that the court below erred in not considering the sentence
in respect of counts 2 and 3
afresh after it set aside the conviction
in respect of count 1.
[13] It is true that if the
appellant was sentenced individually on each count to imprisonment
for 15 years as prescribed by the
Act, the sentence of imprisonment
in respect of count 1 on which he was acquitted on appeal, would have
had to fall away. Once
the conviction on one count of robbery with
aggravating circumstances was set aside, the court below was obliged
to reconsider
the sentence and determine afresh an appropriate
sentence for the remaining two counts. That did not happen. As a
result, the appellant
is now serving the same sentence as if the
conviction on one count of robbery was never set aside.
[14] The globular sentence
of 20 years’ imprisonment for all three counts is clearly
impractical and unworkable in this case.
It is difficult to try to
apportion the sentence to individual counts. What the trial court
should have done was to sentence the
appellant separately for each
count and to invoke s 280(2) of the Criminal Procedure Act 51 of 1997
(the CPA) to make an order
that the sentences run concurrently, if it
wanted to ameliorate the severity of the three sentences. See
S
v Nkosi
at 415H.
[15] I find it apposite to
reiterate the warning expressed in
Young,
Kruger, Nkosi
and recently
Phillips
that, although there is no bar to imposing a globular sentence, it is
imperative for judicial officers to consider the desirability
of such
a sentence carefully before imposing it, bearing in mind the kind of
problems it may cause. This case is a classical example
of the kind
of serious if not intractable problems which will occur on appeal
where some counts are set aside and there is a need
to alter the
globular sentence imposed. We are now faced in this appeal with the
difficult task of having to unscramble a scrambled
egg. Although
useful at times, such a sentence must be imposed in exceptional
circumstances only.
[16] It is clear to me that
the result of what happened in this case amounts to an injustice. An
accused cannot be made to serve
a sentence for a conviction that has
been set aside. It follows that such a sentence cannot stand as its
legal basis fell away
when the conviction for which it was imposed
was set aside. It follows that the court below erred in failing to
reconsider the
sentence. On this basis, the court is at liberty to
reconsider the cumulative effect of the sentence imposed on the
appellant afresh.
[17] Both counsel were
agreed that the most practical solution to this rather intractable
problem, given the time lapse and possible
prejudice to the appellant
is to set aside the globular sentence and to sentence the appellant
afresh in respect of counts 2 and
3 and to make an order that the
sentences run concurrently. I agree.
[18] In the result, the
following order is made:
1
The appeal against sentence in respect of counts 2 and 3 is upheld.
2
The sentence imposed by the trial court in respect of counts 1, 2 and
3 is set aside
and replaced by the following:
‘
(a)
In respect of count 2, the appellant is sentenced to 15 years’
imprisonment.
(b)
In respect of count 3, the appellant is sentenced to 15 years’
imprisonment.’
3
In terms of
s 280(2)
of the
Criminal Procedure Act 51 of 1977
, the
sentence imposed in respect of count 2 is ordered to run concurrently
with the sentence imposed in respect of count 3.
4
The sentences of imprisonment of 15 years in respect of the unlawful
possession of a
semi-automatic firearm, of which 11 years is wholly
suspended for a period of 5 years on condition that the accused is
not convicted
of possession of an unlicensed firearm in contravention
of the Firearms Control Act, and which offence is committed during
the
period of suspension where direct imprisonment is imposed without
the option of a fine, together with imprisonment for 1 year imposed
in respect of the unlawful possession of ammunition remain unaltered.
Effectively the appellant will undergo imprisonment for 5
years.
5
Taking into consideration, the sentences in respect of counts 4 and
5, the accused will
therefore undergo imprisonment for an effective
period of 20 years.
6
In terms of
s 282
of the
Criminal Procedure Act 51 of 1977
, the
sentence imposed in respect of paragraph 2 above, is antedated to 3
May 2012.
________________________
L O Bosielo
Judge of Appeal
Appearances
For the Appellant: WA Karam
Instructed by:
Justice Centre, Johannesburg
Justice Centre, Bloemfontein
For the
Respondent: VT Mushwana
Instructed by:
Director of Public Prosecutions, Johannesburg
Director of Public Prosecutions, Bloemfontein