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[2019] ZAGPPHC 206
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Thipe v S (A114/2018) [2019] ZAGPPHC 206 (6 June 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE
: NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NO:
A114/2018
6/6/2019
In
the matter between:
ERIC
MATILEWANE THIPE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
THOBANE
AJ,
[1]
The appellant was arraigned together
with his co-accused in the Regional Court sitting at Pretoria North
on the following counts;
Count 1, Robbery with aggravating circumstances
read with
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
;
Count 2, Conspiracy to commit robbery with
aggravating circumstances, and Count 3, Attempted murder.
[2]
The appellant, who was accused 2 at the
trial and was legally represented throughout , pleaded guilty to
count 1, that of robbery
with aggravating circumstances. The state
accepted his plea and he was accordingly found guilty on count 1.
[3]
The appellant was sentenced to 15 years
imprisonment. This appeal which is directed at the sentence only, is
with leave of the trial
court granted on 11 October 2016.
[4]
The facts giving rise to the conviction
of the appellant are briefly as follows;
4.1.
On 29 August 2014 the appellant together
with his co-accused travelled to Kameeldrift, outside Pretoria but
within this division,
intent on committing, among others, the crime
of robbery with aggravating circumstances.
4.2.
On arrival they proceeded to
intentionally and unlawfully assault one Mr Barend van den Veen and
by force using a firearm, robbed
him of his VW Minibus, Venter
trailer, toolbox and various tools, his property and in his lawful
possession. The assault was cruel
and vicious. He was tied up with a
neck tie and was also strangled therewith. His face and his back were
burned with coal. He was
burned with a cigarette on his back. His
nose and ears were bruised using a pair of pliers (vice-grip).
4.3.
After the robbery and when the appellant
and his co-accused were on their way to Mamelodi, they were arrested.
The stolen goods
were recovered.
[5]
In mitigation of sentence, the appellant
did not give oral evidence however his legal representative addressed
the court from the
bar and submitted the following;
5.1.
That he is 42 years of age;
5.2.
That he is single;
5.3.
He grew up with 4 siblings and his
father passed away when he was still attending school;
5.4.
He attended formal schooling and passed
grade 8, but dropped out due to financial constraints;
5.5.
He has two dependents born in 2007 and
2008 and the mother of these dependants is unemployed;
5.6.
That he was unemployed at the time of
his arrest;
5.7.
That he had a 10 years old previous
conviction which related to possession of an unlicensed firearm;
5.8.
That he has been in custody for 2 years
awaiting his trial;
5.9.
That he did not benefit from the robbery
as they were arrested soon after they left the scene of the robbery
and that the loot was
recovered during the arrest;
5.10.
That although the robbery was
premeditated and had been pre planned, he was not part of the
planning;
5.11.
That he co-operated fully with the
police;
5.12.
That he was remorseful of his conduct
and was therefore a suitable candidate for rehabilitation.
[6]
On behalf of the respondent it was
submitted that although the appellant was not involved in the
planning of the robbery, the crime
was nevertheless premeditated. It
was further submitted that the complainant was severely assaulted.
The fact that one of the appellant's
co-accused used her affinity to
the complainant to gain entry to his house was accentuated as one of
the aggravating factors. From
the state's point of view, the
appellant displayed no remorse and therefore there were no
substantial and compelling circumstances
to speak of in the matter,
warranting a deviation from the minimum sentence of 15 years.
[7]
In argument before us, counsel for the
appellant submitted that the nub of his submission was that the
sentencing court failed to
take into account the fact that the
appellant spent two years in custody while awaiting trial. Counsel
for the respondent on the
other hand was of the view that there was
no misdirection on the part of the sentencing court and that this
court should not interfere
with the imposed sentence. The sentencing
court, it was submitted, was correct in sentencing the appellant to
15 years imprisonment.
[8]
As is often said, sentencing is
primarily a matter falling within the sole discretion of the trial
court. A court considering an
appeal against sentence therefore does
not have a general discretion to interfere with the sentence. It may
do so in two very circumscribed
circumstances: firstly, if it is
found that there has been an improper exercise of judicial discretion
in that the sentence is
vitiated by irregularity or misdirection; or
secondly, if the disparity between the sentence of the trial court
and the sentence
which the appellate court would itself have imposed
is so marked that it can properly be described as "shocking",
"startling"
or "disturbingly inappropriate".
[9]
In
Kgosimore
v
S
1999
(2) SACR 238
(SCA)
at
par [10], the Supreme Court of Appeal held that:
"It is trite law that sentence is
a
matter for the discretion of the
court burdened with the task of imposing the sentence. Various tests
have been formulated as to
when
a
court of appeal may interfere. These
include, whether the reasoning of the trial court is vitiated by
misdirection or whether the
sentence imposed can be said to be
startlingly inappropriate or to induce
a
sense of shock or whether there is
a
striking disparity between the
sentence imposed and the sentence the court of appeal would have
imposed. All these formulations,
however, are aimed at determining
the
same
thing;
viz. whether there was
a
proper
and reasonable exercise of the discretion bestowed upon the court
imposing sentence. In the ultimate analysis this is the
true
inquiry.... Either the discretion was properly and reasonably
exercised or it was not. If it was,
a
court of appeal has no power to
interfere; if it was not, it is free to do so. I can accordingly see
no juridical basis for the
stricter test suggested by counsel; nor is
there anything in section 316B of the Criminal Procedure Act, or for
that matter section
310A, to suggest otherwise... It follows that, in
my view, whether it is the attorney
-
general (now the Director of Public
Prosecutions) or an accused who appeals against
a
sentence, the power of
a
court of appeal to interfere is the
same.
"
[10]
In the
locus
classicus,
S v Malgas
2001 (1)
SACR 469
(SCA)
at 478D per
Marais JA, the following is stated;
"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 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 doing
so,
it
assesses sentence as if it were
a
court of 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 appellate court may yet be justified in
interfering with the sentence
imposed by the trial court. It may do
so when 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"."
[11]
It is our view that the approach to
sentencing that was adopted by the court cannot be faulted. Our
reading of the judgment by the
sentencing court is that the
magistrate was alive to the fact that the conviction attracted a
minimum sentence of 15 years in accordance
with section 51(2) of the
Criminal Law Amendment. The magistrate correctly held that in order
to deviate from the prescribed sentences,
the court must be satisfied
that substantial and compelling circumstances exist. In that event,
the court must then proceed to
list them whereafter it may impose a
sentence which is lesser than the prescribed minimum.
[12]
The nub of this appeal therefore is
whether the period of 2 years which the appellant served while
awaiting finalisation of the
trial, should have been taken into
account, thus resulting in a reduced sentence than the 15 years
imposed by the sentencing court.
The magistrate relied heavily on the
dicta
purportedly
from
David Kekana v State
(629/2013)
[2014] ZASCA 158
(1 October 2014).
I
am certain that the magistrate erroneously referred to the
Kekana
v S
matter in which the
appellant was appealing against conviction and sentence in respect of
a murder of his wife whom he set alight
and for which he was
sentenced to life imprisonment. The
dicta
that he relied upon is in fact from
Radebe and Another v S (726112)
[2013] ZASCA 31
;
2013 (2) SACR 165
(SCA) (27 March 2013)
whose
facts to a certain extent match those
in
casu.
The test set out in
Radebe
and Another v S,
which the
sentencing court quoted is stated thus:
''And accordingly, in determining, in
respect of the charge of robbery with aggravating circumstances,
whether substantial and compelling
circumstances warrant
a
lesser sentence than that prescribed
by the Criminal Law Amendment Act 105 of 1997 (15 years' imprisonment
for robbery), the
test is not
whether on its own that period of detention constitutes
a
substantial or compelling
circumstance, but whether the effective sentence proposed is
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,
is
a
just
one. (Underlining my emphasis).
[13]
In this matter having analysed the
reasons for postponement of the case, the sentencing court found that
the appellant and his co-accused
were to blame for the delay in
finalising the trial. The court found that at the commencement of the
trial the appellant had intended
to proceed with the trial on the
basis of a not guilty plea and changed
"halfway
into the finalisation of the matter".
In
Radebe and Another v
S
,
the appellants were found to have been responsible for the delay of
the trial in that,
inter alia,
they
had insisted on engaging private counsel in circumstances where they
could not afford one and in addition through changing
their versions
during the trial necessitating the court to hold a trial within a
trial. Those factors are in our
view
clearly distinguishable from those
in this case in so far as the appellant is concerned. Another
distinguishing factor is that the
appellant was not part of the
planning of the robbery. He came in at a much later stage and his
role seemingly was limited. The
sentencing court rejected the
submission about the appellant's absence during the planning stages,
as "flimsy". The court
also found that the appellant's
previous conviction which was said to be more than 10 years old, was
an aggravating factor. The
court reasoned, that it was a weighty
consideration that the appellant had been 27 years of age when he
committed the offence which
gave rise to the previous conviction. We
could find no reason from the record why such a conclusion was
reached.
[14]
The court took the view that the
plea of guilty was not mitigatory. It found that the state had an
"open and shut"
case
against the appellant and his co-accused and that the plea of guilty
was not indicative of contrition or remorse. During the
application
for leave to appeal before the court
a
quo
the magistrate seemed to have
accepted, and this is one of the reasons why he granted leave, that
in treating the applicant, who
was not present when the crimes were
planned, the same as his co-accused who planned the crimes, he erred.
His acceptance of the
error is encapsulated in the dicta below which
is extracted from his judgment when he granted leave;
"With hindsight, and although this
aspect was not raised by the first applicant or by his legal
representative during the trial
stage and post trial, I do find that
the fact that the first applicant did not feature during the planning
stage should have worked
in his favour with the result that I should
not have treated the first applicant the same way as I did the second
applicant and
erstwhile co-accused
7
ultimately."
We are therefore at liberty to interfere.
[15]
It is our view that the court's
characterisation of the absence of the appellant in the planning of
the crimes as "flimsy"
was a misdirection. In our view the
sentencing court should have taken into account the period of two
years which the appellant
spent in custody while awaiting trial.
[16]
We make the following order in the
result;
1.
The appeal against sentence is upheld;
2.
The sentence of 15 (fifteen) years
imprisonment is set aside and replaced with the following sentence;
"The accused is sentenced to 13 (thirteen)
years imprisonment."
3.
The sentence in 2 above is antedated to
11 August 2016.
SA THOBANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I AGREE, AND IT IS SO ORDERED
SNI MOKOSE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date
heard
: 21 May 2019
Date
of Judgment
: 6 June 2019
Counsel for the Appellant
: Adv. Moeng
Counsel
for the Respondent
: Adv. Roos