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[2019] ZAGPPHC 517
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Tembe v S (406/2017) [2019] ZAGPPHC 517 (28 June 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
·
REPORTABLE:
NO
·
OF
INTEREST TO OTHER JUDGES: NO
·
REVISED
APPEAL NO: 406/2017
28/6/2019
In
the appeal of:
ARMANDO
TEMBE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
VUMA AJ
INTRODUCTION
[1]
This is an appeal against sentence only.
BACKGROUND
[2]
On 12 September 2013 the appellant was
arraigned in the Magistrate's Court, Atteridgeville, on four (4)
counts of housebreaking
with intent to rob and robbery with
aggravating circumstances. He was convicted in respect of all four
counts and sentenced as
follows:
"On count 1, 15 years'
imprisonment
as
contemplated in
Section 51(2) Act 105 of 1997 (sic).
Count 2, 15 years' imprisonment
as
contemplated
in Section 51(2) of Act105 of 1997.
Count 3, 15 years' imprisonment
as contemplated in Section 51(2) of Act105 of
1997.
Count 4, 15 years' imprisonment
as contemplated in Section 51(2) of Act105 of 1997.
And then in terms of Section
280(2) Act 50 of 1997, the Criminal Procedure Act, the court orders
that the sentences on counts 1
and 2 are to run concurrently with
sentences on count 3 and 4 respectively.
So,
that would give
an effective sentence of 30
years'
imprisonment.
In terms of Section 103(1) of
Act 60 of 2000. The accused is declared unfit to possess a
firearm. "
[3]
On 12 June 2017 appellant applied before
the trial court for leave to appeal against both his conviction and
sentence wherein only
leave to appeal against sentence was granted.
The appellant proceeded to draw up a Petition for leave to appeal
against his conviction,
papers which he signed on 29 June 2017.
However, from the Record, what became of the appellant's “Petition"
is unknown,
save to state that on 26 July 2017 the appellant filed
his Notice of Appeal against sentence only.
THE SUMMARY OF THE FACTS
LEADING TO THE APPELLANTS' CONVICTION
[4]
The appellant, together with two other
unknown assailants, had broken into a house at a lodge in Lanseria
and wielding a firearm
and a screwdriver, robbed four female
complainants of their belongings, which belongings consisted mainly
of clothing, jewellery,
cellphones and an I-pad. With the assistance
of the GPS-location of the I-pad, the police were able to trace the
appellant who
was arrested walking along the road with two bags
belonging to some of the complainants. When searched by the police
officer, women
clothing and the I-pad belonging to some of the
complainants were seized from the appellant. The other suspect who
was with the
appellant flee the scene of the appellant's arrest upon
noticing the police. The I-pad was identified by one of the other
complainants
to be the property of Mrs Raauw, who confirmed that
indeed it was her property.
GROUNDS OF APPEAL BY APPEAL
[5]
The court a
quo
erred in the following respects:
5.1.
Instead
of balancing the mitigating and aggravating circumstances, it
overemphasized the seriousness of the offence, the interests
of the
society, the prevalence of the offence and the impact that the crime
had on the victims.
5.2.
It
failed to take into account the following with regard to the
appellant's mitigating factors:
5.2.1
He
was a first offender;
5.2.2
He
was still young at the time of the sentencing (and although disputed
by the respondent), he was 17 years old at the time of the
commission
of the offence;
5.2.3
He
had spent a substantial period of time in prison before trial;
5.2.4
The
robbery(ries) constituted one incidence although affecting four
complainants; and
5.2.5
Some of the items were recovered.
SUBMISSIONS ON BEHALF OF THE
APPELLANT
[6]
Based on paragraph 5 above, Counsel for
the appellant submitted that the appeal court sets aside
the trial court's shockingly
inappropriate effective sentence of 30
years' imprisonment with one that would factor in the mitigating
factors. It was further
submitted that duplication of charges
thus resulted in the unjustifiable trial court's piecemeal
approach. An effective
sentence of 10 years would be appropriate in
the circumstances in
casu.
SUBMISSIONS ON BEHALF OF THE
RESPONDENT
[7]
The following was submitted as the
appellant's personal circumstances:
7.1
That he was 21 years old when sentenced:
7.2
He was single and without any children:
7.3
He completed grade 6 in Mozambique: and
7.4.
He does not have any previous convictions.
[8]
In aggravation of sentence it was submitted that the appellant acted
together with
two co-assailants in committing the offences
complainants who at the time were on vacation. The appellant had
broken into the complainants'
chalet at night and robbed them of
their belongings, wielding a knife and a firearm. He did not show any
remorse for his actions.
It was further submitted that there were no
substantial and compelling circumstances that called for the trial
court to deviate
from the prescribed minimum sentence and that the
appeal be dismissed.
[9]
With regard to the duplication of charges, Counsel submitted that for
purposes of
putting charges against an accused person, despite the
said charges flowing from the facts, the respondent will always split
same
in respect of each respective complainant. However. in the event
of a guilty verdict being returned by a trial court against an
accused in respect of each of the said charges/ counts, the rippling
effect of the duplication of the said charges would be balanced
out
when the trail court by ordering that each of the said sentences
should run concurrently. She then submitted that in
casu,
the
trial court could have adopted the above approach and sentence the
appellant to an effectively 15 years' imprisonment in respect
of all
counts cumulatively. She conceded that the 30 years' effective
imprisonment was harsh.
CASE LAW
[10]
The enquiry regarding the imposition of sentence on appeal is not
whether the sentence is right
or wrong but whether the court acted
reasonably or properly in the exercise of its discretion (see S
v
Obisi
2005 (2) SACR 350
(W)
para 8). The question whether the
trial court exercised its discretion reasonably depends on whether,
considering all the circumstances
of the case, the trial court could
have reasonably imposed the sentence which it did (see
S v Obisi
para 8).
[11]
In addition to the above, a court
of appeal will interfere with a sentence of a trial court in a matter
where the sentence imposed
was disturbingly inappropriate or when the
court, when imposing the sentence, committed a misdirection (see S
v
Salzwedel and Another
1999 (2) SACR 685
(SCA)
para
10). Since S
v Rabie
1975 (4)
SA
855
(A)
at
8658-C it has consistently been held that the discretion to impose a
sentence is pre eminently that of the court imposing
the
sentence and that an appeal court should be careful not to erode such
a discretion. The test then is whether the sentence is
vitiated by an
irregularity or misdirection or is disturbingly inappropriate (see S
v Rabie
at
8570-F).
[12]
In S
v
Salzwedel
at
591G the Supreme Court of Appeal held that an appeal court can only
interfere with a sentence of a trial court in a case where
the
sentence is disturbingly inappropriate or totally out of proportion
to the gravity or magnitude of the offence, or sufficiently
disparate, or vitiated by misdirection of a nature which shows that
the trial court did not exercise its discretion reasonably.
[13]
According to the triad formulated
by the Appellate Division in
S v Zinn
1969
(2)
SA 537
(A),
the personal circumstances of the
criminal, the seriousness of the offence and the interests of the
community are the relevant factors
determinative of an appropriate
sentence.
[14]
In
S v Ma/gas
2001 (1) SACR 469
(SCA)
the
court remarked as follows on 'substantial and compelling
circumstances' on page 470:
'The specified sentences are
not to be departed from lightly and for flimsy reasons. Speculative
hypotheses favourable to the offender,
undue sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of
the policy underlying the legislation,
and marginal differences in
personal circumstances or degrees of participation between
co-offenders are to be excluded.·
ANALYSIS AND FINDINGS
[15]
From the above, it is common cause that the charges the appellant has
been convicted of are
very
serious and that the society frowns upon them. It is further common
cause that the court a
quo
sentenced
the appellant In terms of the Minimum sentence regime which
prescribes a sentence of a minimum of 15 years' imprisonment
unless
substantial and compelling circumstances are found to exist.
[16]
With regard to the duplication of
charges submissions, I am of the view that despite the appellant
being convicted in respect of
all the four counts, the trial court
should have ordered that all the said sentences should run
concurrently so as to avoid the
double jeopardy consequence.
[17]
Furthermore, with regard to the question
whether the trail court balanced the triad as per authority of
Zinn
above, I find that the trial court
did not factor failed in this regard by overemphasizing the interests
of the community and the
seriousness of the offence at the expense of
the appellant's personal circumstances. With regard to the time
already spent by the
appellant in detention at the time of
sentencing, I am of the view that the three (3) spent therein by the
appellant would not
have made any material difference even if the
trial court had taken it into account.
[18]
The crux of the matter is: did the trial
court misdirect itself in finding that there were no substantial and
compelling circumstances
for it to deviate from the prescribed
minimum sentence. I am of the view that taking into account the facts
of this matter, the
appellant being a first offender and his age.
such factors should have a constituted a special and
compelling
circumstances that should have caused the trial
court to deviate from imposing the prescribed minimum sentence.
Despite
disagreement regarding his actual age, I am of the view that
it cannot be gainsaid the appellant was very youthful at the time.
[19]
Based on the above, I find that the
trial court misdirected itself with regard to the following:
1.
Not
ordering that the sentences in respect of the four counts should run
concurrently; and
2.
Not
finding that the appellant's personal circumstances, particularly his
youthfulness and being a first offender constituted special
and
compelling circumstances which thus called for a deviation from the
prescribed minimum sentence.
[20]
In the premises, this court finds that
the trial court's sentence is both shockingly inappropriate and that
the trial court misdirected
itself as stated above.
CONCLUSION
[21]
In the result, I conclude that the
appellant succeeds in his appeal against sentence.
[22]
The following order is made:
Order:
1.
The
appeal is upheld.
2.
The
sentence imposed by the Regional Court, Atteridgeville is set aside
and replaced by the following:
(a)
The
accused is sentenced to 10 (ten) years imprisonment on each count.
(b)
The
sentence on each count are to run concurrently with effect from 12
September 2013.
(c)
In
terms of Section 103(1) of Act 60 of 2000 the accused is declared
unfit to possess a firearm.
L
VUMA
Acting
Judge of the High Court
I
agree
N
MNGQIBISA-THUSI
Judge
of the High Court
Heard
on: 18 June 2019
Judgment
delivered on 28 June 2019
Appearances:
For
appellant: Adv M Koos- Monyakane
Instructed
by:
For
Respondent: Adv A Roos
Instructed
by: Office of the DPP