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[2019] ZAGPPHC 224
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Mbenya v S (A15/2018) [2019] ZAGPPHC 224 (24 May 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION PRETORIA
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES:
YES
(3)
REVISED.
CASE NO: A15/2018
DATE OF HEARING: 24 APRIL 2019
24/5/2019
In
the matter of:
BAFANA
MBENYA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Bam
AJ
Introduction
1.
The
appellant was convicted of robbery with aggravating circumstances in
the Regional Court held at Benoni. Section 51 (1) of the
The Criminal
Law Amendment Act 105 of 1997 (the Act) was applicable. The trial
court, having found no substantial and compelling
circumstances to
justify the departure from the minimum sentence specified in the Act,
sentenced the appellant to 15 years imprisonment.
His appeal against
the sentence was dismissed by the trial court. On petitioning the
Judge President of this court, he succeeded,
and the order was
granted on 22 November 2017. The matter is before this court only on
the question of sentence.
2.
The facts, broadly stated are: During
the afternoon of 6 May 2017, at or near Great North Road in Benoni,
the appellant accosted
a 14 years old boy, ("the complainant")
who was standing at the gates of a church and holding a mobile phone
in his hands.
Pointing a knife, an Okapi, at the complainant's
throat, appellant demanded that the complainant hand him the mobile
phone, which
the complainant did. Appellant left the scene. He was
subsequently arrested by the South African Police Services, (SAPS)
and charged
with robbery with aggravating circumstances.
3.
He
appeared before the Regional Court on 5 July 2017 where he pleaded
guilty to the charge of robbery with aggravating circumstances.
His
statement in terms of section 112 (2)
[1]
,
was read into the record by his legal representative. After the court
had satisfied itself that it covered the elements of the
of
fence, the statement was accepted and the appellant subsequently
convicted and sentenced as previously mentioned in this
judgment.
Appellant's
case on appeal
4.
Before
I go into the detail of the appellant's case, it is only fair that I
record that both counsel are in agreement that, given
the
circumstances of this case, the sentence meted out by the trial court
is disproportionate and induces a sense of shock. Both
counsel
submitted that this court has a duty to step and correct the
injustice.
The
trial court misdirected itself
5.
It
was submitted on behalf of the appellant that the trial court
misdirected itself in disregarding evidence placed before it, which
when looking at the circumstances of the case, constituted
substantial and compelling circumstances. The evidence included: (a)
The youthful age of the appellant. (At the time of committing this
offence, the appellant was 18 years old); (b) That the appellant
had
pleaded guilty, which his legal representative suggested it
demonstrated a sense of taking responsibility for his actions and
remorse; (c) That the complainant's phone had been returned to him,
as such he had suffered no loss;
(d)
The value of the goods stolen; (The trial court had accepted that the
phone was valued at R2000); (e) Even though a weapon had
been used,
it was only used to obtain submission from complainant and
that no physical injuries were inflicted ; (f)
The appellant is
a first offender; and had spent two months in prison while awaiting
trial.
6.
All
of the factors set out in the preceding subparagraph, considered
cumulatively, render the sentence imposed out of proportion
and
unjust, submitted counsel for the appellant. That the trial court had
a duty to guard against injustice in meting out punishment.
7.
In S v Vilakazi
[2]
it was said that the sentencing Court had a duty to guard against
injustice in meting out punishment .
'If the sentencing court on
consideration of the circumstances of the particular case
is satisfied that they render
the prescribed sentence unjust in that
it would be disproportionate to the crime. the criminal and the
needs of society,
so that an injustice would be done by
imposing that sentence, it is entitled to impose a lesser
sentence... ....
....... ... .It is only by approaching sentencing
under the Act (The
Criminal Law Amendment Act 105 of 1997
) in the
manner that was laid down by this court in S v Malgas
[3]
- which was said by the Constitutional Court in S v
Dodo
[4]
to be ·undoubtedly correct' - that incongruous and
disproportionate sentences are capable of being avoided. Indeed, that
was the basis upon which the Constitutional Court in Dodo found the
Act to be not unconstitutional. For by avoiding sentences that
are
disproportionate a court necessarily safeguards against the risk -
and in my view it is a real risk - that sentences will be
imposed in
some case that are so disproportionate as to be unconstitutional'.
8.
The court below, as I shall demonstrate,
incorrectly rejected the factors mentioned in paragraph 5 of this
decision, insisting that
according to the principles articulated in S
v Malgas
[5]
the minimum sentences should not be deviated from on the basis of
flimsy reasons. To an extent, the court was correct, Malgas conveys
as much to judicial officers. But, as shall be shown from the
remarks of the court in Vilakazi
[6]
,
Malgas goes further:
'Malgas did not say that
prescribed sentences should ordinarily be imposed. What the
court said is that a court must approach
the matter ·conscious
of the fact that the Legislature has ordained [the prescribed
sentence] as the sentence which
should ordinarily and in the absence
of weighty justification be imposed for the listed crimes in the
specified circumstances '
(... ......) In the context of the
judgement as a whole. and in particular the 'determinative test' that
I referred to
earlier, it is clear that the effect of
those qualifications is that any circumstances that would
render the prescribed
sentence disproportionate to the offence would
constitute the requisite 'weighty justification ' for the imposition
of a lesser
sentence.
[7]
'
9.
I now turn to the transcript, to bring
home the misdirections committed by the trial court. In extracting
these excerpts care was
taken to collect sufficient material to show
the trail of thought such that there can be no question that the
court has been quoted
out of context. At the early stages of
sentencing, the court noted
[8]
:
10.
I know it is
comfortable to have a cell phone but in fact parents who put
their children in possession of a cell phone also
put their children
at risk. Armed robbery in it self is very prevalent . Armed
robbery of cell phones is extremely prevalent.
It will not be
facetious to think or to estimate that nine out of ten armed
robberies. nine will be robbing of cell phones. It
is in the
interests of society that this scorch be stopped and that can only be
done by serving in the first instance of the court
objectives
prevention, deterrence, rehabilitation, and punishment to serve the
objective of the deterrence.
Other
people must see what happens to you and refrain from this kind of
conduct.'
(emphasis
is mine)
11.
The Constitutional Court in Buzani Dodo
v The State
[9]
warned against using human beings an means to an end:
‘
[38] To attempt to justify
any period of penal incarceration, let alone imprisonment for
life as in the present case, without
inquiring into the
proportionality between the offence and the period of imprisonment,
is to ignore, if not to deny, that which
lies at the very heart
of human dignity. Human beings are not commodities to which a price
can be attached; they are creatures
with inherent and infinite worth;
they ought to be treated as ends in themselves, never merely as means
to an end. Where the length
of a sentence, which has been imposed
because of its general deterrent effect on others, bears no relation
to the gravity of the
offence (in the sense defined in para
graph 37 above) the offender is being used essentially as a means to
another end
and the offender's dignity assailed.'
12.
There can be no question when reading
the extract from the court record that the court imposed the lengthy
term of imprisonment
because of its general deterrence even though
the circumstances warranted a lesser sentence. This was a
misdirection on the part
of the court. In the paragraph below, the
court rejected relevant evidence, which given the circumstances of
the case, ought to
have led the court to a lesser sentence:
[10]
13.
'Your personal circumstances are, the
address on the J15......... is your parental home. You claim
you live there. The prosecutor
claim (sic) that you decided to leave
home but there is a save (sic) haven at your disposal. You only went
up to Grade 8
so if you drop out of school at that low grade I
do not know how you could ever dream of having a future. You
are single,
you have got no children and you did piece jobs
when you get you will earn R150 a day. Adv............[referring to
the appellants
legal representative]. as material and compelling
circumstances offered the fact that you are 18 years old and that you
are a first
offender. Section, Act 105 of 1997 prescribes a sentence
of 15 years' imprisonment for a first offender 18 years and older so
that
in itself does not amount, do not amount to material and
compelling circumstances. He added that you pleaded guilty and that
you
have been in custody since 6 May 2017, almost two months. The
fact of the matter is Mr Benya on the merits of this case your robbed
this 14 year old school T........T (name of complainant]
in broad day light'......' 'So Mr Benya for robbing this vulnerable
member of our society, a child of society I found no material and
compelling circumstances that will enable the court to motive
(sic)
1n terms of section 51 (3) of the act 105 of 1997 a deviation from
the prescribed sentence
[11]
.'
16.
Some of the remarks made by the court
(as shown in this extract) were un warranted. Suffice to
conclude that the court misdirected
itself, nothing further need be
said.
17.
The cardinal rule in our law which has
been espoused in many a decision by the SCA is that sentencing is at
the discretion of the
trial court and that an appellate court should
not easily interfere with the sentence imposed. ln The Di rector
of Public
Prosecutions v Oscar
[12]
it was said:
'An appellate court's power to
interfere with sentences imposed by courts below is circumscribed. It
can only do so where. there
has been an irregularity that results in
a failure of justice; the court below misdirected itself to such an
extent that its decision
on sentence is vitiated; or the sentence is
so disproportionate or shocking that no reasonable court could have
imposed it'.
18.
In
Hewitt v The State
[13]
the court stated:
‘
It is a trite principle of
our law that the imposition of sentence is the prerogative of the
trial court. An appellate court may
not interfere with this
discretion merely because it would have imposed a different sentence.
In other words, it is not enough
to conclude that its own choice of
penalty would have been an appropriate penalty. Something more is
required: it must conclude
that its own choice of penalty is the
appropriate penalty and that the penalty chosen by the trial court is
not. Thus, the appellate
court must be satisfied that the trial court
committed a misdirection of such a nature, degree and seriousness
that shows that
it did not exercise its sentencing discretion at all
or exercised it improperly or unreasonably when imposing it. So,
interference
is justified only where there exists a 'striking'
or 'startling' or 'disturbing' disparity between the trial court's
sentence and that which the appellate court would have imposed. And
in such instances the trial court's discretion is regarded
as having
been unreasonably exercised.'
19.
Having demonstrated that the court had
misdirected itself, it is now incumbent upon this court to consider
the question of appropriate
sentence afresh. The offence committed by
the appellant is a serious offence, and as the trial court had noted,
armed robbery
involving mobile phones is prevalent. The
appellant may not have physically harmed the complainant but mention
was made in court
that the complainant had been left traumatised by
the incident. Factors which count in the appellant's favour however,
include
the fact that this offence was committed when he was 18. The
knife was used only to subdue the complainant and no injuries were
inflicted. There was also no suggestion that there had been
premeditation. In Damgazela v The State
[14]
,
where the offenders were 18 and 19 and charged with rape and
sentenced to twenty years imprisonment, the court in reducing
their sentence to 8 years, reasoned as follows:
"Both appellants were first
offenders, had left school prematurely and they were aged 18 and 19
years respectively at the time
of the incident. They had both spent
20 months in custody awaiting trial. Aggravating features are the
gravity of the offence and
the prevalence thereof, the appellants'
lack of remorse and the fact that there appears to be a degree of
premeditation involved
in the commission of the
offence........Appellate interference in respect of sentence on the
striking disparity criterion is only
competent in instances where the
appellate court has formed a definite view as to the sentence it
would have imposed and where
the degree of disparity between that
sentence and the one imposed by the sentencing court is so striking
that interference on appeal
is warranted."
20.
In
State v Matyityi
[15]
,
the court remarked:
‘
It
is trite that a teenager is prima facie to be regarded as
immature
[16]
and that the youthfulness of an offender will invariably be a
mitigating factor
[17]
,
unless it ap pears that the viciousness of his
or
her deeds rule
out immaturity
[18]
. Although the exact extent of the mitigation will depend
on all of the circumstances of the case,
in general
a court will not punish an immature young person as severely as
it would an adult
[19]
. It is well established that the younger the offender the
clearer the evidence needs
to be about his or
her background, education, level of intelligence and mental capacity
in order to enable a court to determine
the level of maturity and
therefore moral blameworthiness
[20]
.
The question, in the final analysis. is whether the offender's
immaturity, lack of experience, indiscretion and susceptibility
to being influenced by others reduces his blameworthiness’
[21]
.
21.
In
S Fortune
[22]
where the court dealt with a repeat offender, it noted the following
in identifying substantial and compelling factors that ought
to have
directed the trial court to deviate from the minimum sentence:
‘
In the current case, the
appellant threatened the complainant with a knife on a street on the
edge of Cape Town's central business
district in broad daylight, and
by these means was able to wrest from her and steal the handbag that
she had been carrying. He
had initially pretended to approach her for
the purpose of asking for a match to light a cigarette. His conduct
qualified as a
robbery with aggravating circumstances on two bases;
it involved the wielding of a dangerous weapon and the tacit threat
to inflict
grievous bodily harm. Quite apart from the matter of
technical definition, there can be no doubting the seriousness of the
of
fence and the expectation by the community that the courts
should reflect an appreciation of this in the type of sentence
imposed.
That said. the weapon was not used in a way that caused the
complainant any physical injury. The offence was at the lower end of
the scale of instances of robbery with aggravating circumstances.
This should have been taken into account in assessment of a
proportionate sentence. Instead, the magistrate would appear to have
adopted the 'typical case' approach discussed and discredited
at para
19 of Vilakazi, supra. This constituted a material misdirection.'
22
In S v Mavinini
[23]
where the appellant and three others had robbed a family with a
fourteen month old baby, (the family had not just been robbed,
they
were robbed clean, observed the court). They were left with clothing
on their persons, with one. of the complainants (the
husband) having
been pistol whipped, resulting in the wound requiring some stitching,
the court noted :
'These circumstances, while
serious, do not justify the maximum sentence. They constitute reasons
why the minimum sentence of fifteen
years. and not a lesser sentence.
was appropriate. The circumstances did not call for an exemplary
sentence. which the maximum
entails. That in my view would be
disproportionate to the circumstances of the offence (see Vilakazi v
The State [2008] 4 All SA
396 (SCA). (576/07) [2008) ZASCA 87 (2
September2008)).
23
Without making light of the offence
committed and elevating the personal circumstances of the appellant,
the appellant 1s a first
offender and had left school prematurely.
There is no evidence of pre-meditation. The attack on the complainant
was brazen but
complainant was not physically harmed. All of these
factors count in favour of the appellant in the circumstances of this
case.
Having considered the conspectus of the circumstances of this
case, we conclude that the sentence was harsh and failed to heed the
warming sounded in S v Vilakazi
[24]
.
In the circumstances, a sentence of seven years should bring home the
gravity· of this offence. The court makes the
following order:
(a)
The
appeal is upheld.
(b)
The
sentence is set aside and is replaced by the following sentence. 'The
appellant is sentenced to seven years'. ·
NN BAM
ACTING JUDGE OF THE HIGH COURT,
PRETORIA
I CONCUR
KHUMALO
JUDGE OF THE HIGH COURT,
PRETORIA
DATE OF HEARING
:
24 April
2019
DATE OF JUDGMENT
:
APPEARANCES
APPELLANT'S
COUNSEL
:
Adv LA Van
Wyk (Legal Aid SA)
RESPONDENT'S
COUNSEL
:
Adv PCB Luyt (Office of the OPP, Pretoria)
[1]
of the
Criminal Procedure Act 51 of 1977
[2]
Vilakazi v The State (576/07)
[2008] ZASCA 87
(2 September 2008)
[3]
S v Malgas 2001 (1) SACR 469 (SCA)
[4]
5 2001 (3) SA 382 (CC)
[5]
Supra
[6]
Supra
[7]
Vilakazi v The State (576/07) [2008]] ZACSA 87 (2 September 2008).
[8]
Page 14 of the record, line 3 to 7.
[9]
6 2001 (3) SA 382 (CC)
[10]
Page 14 line 9 to 25
[11]
Page 15 line 10 to 14
[12]
The Director of Public Prosecutions, Gauteng v Oscar Leonard Carl
Pistorius (950/2016) (2017] ZASCA 158 (24 November 2017) para
17
[13]
(637/2015)12016] ZASCA 100 (9 June 2016) para 8
[14]
The State
(633/09)
[2010] ZASCA 69
(26 May 2010) para 16
[15]
State v Matyityi (695/09)
[2010] ZASCA 127
(30 September 2010)
[16]
S v Ngoma
[1984] ZASCA 59
;
1984 (3) SA 666
(A) at 674E-F
[17]
Terblanche p 196
[18]
15 S v Dlamini
1991 (2) SACR 655
(A) at 666b-f
[19]
16 S v Mohlobane
1969 (1) SA 561
(A} at 555C-E
[20]
S v Lehnberg
1975 (4) SA 553
(A) at 561A-C.
[21]
18 S v Van Rooi & andere 1976(2) SA 580 (A
[22]
2014 2 SACR 178
WCC paras 12 -13
[23]
State v Mavinini (224/2008) [2008] ZACSA 166 (1 December 2008) para
30.
[24]
4 para 8 of this Judgment