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[2019] ZAGPPHC 306
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Tembe v S (406/2017) [2019] ZAGPPHC 306 (2 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
·
REPORTABLE:
NO
·
OF
INTEREST TO OTHER JUDGES: NO
·
REVISED
APPEAL NO: 406/2017
2/7/2019
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'
1mprisonmerlf
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]
Th e 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 cour1 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 sentences 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 OPP