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[2019] ZAFSHC 237
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Lebakeng v S (A119/2019) [2019] ZAFSHC 237 (14 November 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal No.: A119/2019
In
the matter between:-
LEBOHANG
LEBAKENG
Appellant
And
THE
STATE
Respondent
JUDGMENT
BY:
C. J.
MUSI, JP
et
S. CHESIWE, J
HEARD
ON:
11
NOVEMBER 2019
DELIVERED
ON:
14
NOVEMBER 2019
[1]
The appellant was convicted by the Regional Magistrate Welkom on 4
counts
viz
,
attempted murder, two counts of robbery with aggravating
circumstances and attempted rape. He was sentenced to 15 years’
imprisonment on each of the robbery counts, five years’
imprisonment for the attempted murder and four years’
imprisonment
for the attempted rape. The Regional Magistrate ordered
that the sentences in respect of counts two, three and four should
run
concurrently. The effective sentence was therefore 20 years’
imprisonment. The appellant appeals against the sentences.
[2]
On 5 October 2015, Mr. M M, complainant counts 1 and 2, and his
girlfriend Ms F K, complainant counts 3 and 4, were sitting
in the
former’s car, at Riebeeckstad. At approximately 14:00 they saw
someone approaching the vehicle. The person was moving
from the left
rear side of the vehicle towards the front of the vehicle. The person
was wielding a firearm. Mr M requested Ms K
to close the left front
window, where she was sitting and to lock the door. She did and he
closed the right front window and locked
the door.
[3]
The person moved towards the right side of the vehicle. Mr M tried to
start the vehicle but he could not find the keys. The
person fired a
shot through the right front window of the motor vehicle. The shot
grazed Mr M’s breastbone. He unlocked the
car and the person
ordered them to get out of the car. They complied. The person took Ms
K’s shoe laces and instructed her
to help him to tie Mr M’s
hands and feet. She assisted. After his hands and feet were tied he
was locked in the boot of the
car.
[4]
The person ordered Ms K to accompany him to the trees. She went with
him. At the trees he ordered her to undress herself. She
told him
that she was menstruating and that they are waiting for other people
who went to go and buy food. He told her if she is
telling the truth
he will let her go. He took her further into the bushes. He again
ordered her to undress. She obliged. Whilst
she was taking off her
panty the person put the firearm on the ground. She grabbed the
firearm. They wrestled over it. She tried
unsuccessfully to pull the
trigger. He disarmed her. She sat on the ground.
[5]
He left and she ran to a nearby road and was assisted by two
gentlemen in a vehicle. They drove back in the direction where
the
car was parked. On their way there, they saw Mr M. He got into the
car and they were taken to the Welkom police station where
charges
were laid.
[6]
The person took their four cellular phones, Ms K’s purse, Mr
M’s wallet and their coins whilst they were still at
the car.
Mr M identified a BlackBerry cellular phone that the police recovered
as his girlfriend’s phone which was taken
during the robbery.
On 29 October 2015, at a properly held identification parade, he
identified the appellant as the person who
robbed them.
[7]
On 13 October 2015, Warrant Officer Kgutsoane interviewed the
appellant at the Odendaalsrus prison. As a result of what the
appellant told him 8 cellular phones that the appellant had when he
was admitted to the prison were brought to them. The appellant
said
all the phones belonged to him. He asked the appellant about the
ninth cellular phone because the appellant had 9 cellular
phones
whilst he was detained at Virginia. The appellant informed him that
he sent a taxi driver to give that cellular phone to
his wife. He
went to the appellant’s house and recovered a Nokia Lumia
cellular phone from the appellant’s wife.
[8]
He tested the phones on their system in order to ascertain whether
any of them were linked to any registered cases. He found
out that
the BlackBerry’s IMEI corresponded with the particulars of one
of the cellular phones that were robbed in this case.
[9]
Warrant Officer De Lange, the investigating officer of this case,
testified that he arrested and charged the appellant. He also
arranged for the identity parade to be held. He did not take photos
of the appellant for purposes of the identity parade.
[10]
The appellant denied that he was at the scene of the crimes. He
testified that he bought the two cellular phones from an unknown
person at G-Hostel, on 6 October 2015 between 09:00 and 10:00. He
testified that he doubts that the identity parade was properly
held
because the police took photos of him and told him that they were
going to show the photos to the witnesses.
[11]
A portion of the cross-examination of the appellant was not
transcribed and that part of the record could not be reconstructed.
[12]
Ms Kruger, on behalf of the appellant, submitted that the appeal is
not aimed against the conviction and that the appellant
is satisfied
with the conviction. It is aimed at the sentence only. She requested
us to proceed with the appeal regardless of the
incomplete record
because there is more than sufficient evidence and information on
record to enable us to properly adjudicate
this appeal. The appellant
also made plain that he desires to appeal against the sentence only.
He said this in his failed application
for leave to appeal before the
Regional Magistrate and in his successful petition to the Judge
President.
[13]
That being the case, we decided to proceed with the appeal in the
interest of justice because there was sufficient evidence
about the
commission of the crimes on record. There was also sufficient
information with regard to the appellant’s personal
circumstances on record. We were satisfied that we have a record that
is adequate for a proper consideration of the appeal. See
S
v Chabedi
2005 (1) SACR 415
(SCA) at para 5.
[14]
It is trite that a court of appeal will not lightly interfere with
the sentencing discretion exercised by the trial court.
It will only
do so in limited circumstances. These circumstances include, where
the trial court has committed an irregularity,
where it misdirected
itself or where the sentence is shockingly inappropriate.
[15]
The appellant was 22 years old at the time of the commission of the
offences. He was married. He had four children and was
gainfully
employed in the construction industry. He was in custody awaiting the
finalization of this case from 25 October 2015.
He was not a first
offender. He was convicted of contravening
s 49
of the
Immigration
Act 13 of 2002
– entering, remaining or departing from South
Africa without the necessary documentation - and fined R1000 or 3
months’
imprisonment.
[16]
Robbery with aggravating circumstances is generally a very serious
offence. Worse still when it is committed by means of a
firearm. In
this case, the appellant subdued the victims by firing a shot
directly at Mr. M before he even announced the reason
for his
presence there. It is by sheer luck that the bullet only grazed his
breastbone.
[17]
The robbery was planned because the appellant approached the car with
the firearm in his hand. After he executed the robbery,
he decided to
have sexual intercourse with the complainant, without her consent. He
also threatened her with the firearm but complainant
was fortunately
a courageous person who would not go down without a fight. Her
resistance saved her and the appellant could not
succeed in executing
the rape.
[18]
The crimes were committed in brought daylight. The appellant showed
no respect for the dignity, bodily integrity and property
of the
complainants. The community expects courts to impose harsh sentences
on persons like the appellant. It is for that reason
that the
legislature, as an institution representing society, decided to enact
the General Laws Amendment Act 105 of 1997 (Act).
In terms of the Act
the robbery with aggravating circumstances counts should be visited
with 15 years’ imprisonment unless
there are substantial and
compelling circumstances present which justify a lesser sentence.
[19]
As a court of appeal we are enjoined to inquire whether the factors
which were considered by the sentencing court together
with those
raised before us are substantial and compelling circumstances. We
unfortunately do not have the benefit of the Regional
Magistrate’s
judgment on sentence, because it too could not be reconstructed. This
is, however, not a reason why we cannot
consider an appropriate
sentence afresh.
[20]
Ms Kruger submitted the following factors, cumulatively, constitute
substantial and compelling circumstances:
·
the
complainants were not injured during the incident;
·
the
value of the stolen property is relatively low and together with the
damage to the vehicle amounted to R11 768.51;
·
two
cellular phones were recovered;
·
the
appellant should be regarded as a first offender; and
·
the
appellant was still very young.
[21]
Mr M did not sustain a serious injury as a result of the gunshot.
This is not because the appellant was a very adroit marksman,
but
rather due to luck or providence. In fact, the mere firing of a shot
at two people in a car under these circumstances is an
aggravating
circumstance; regardless of whether they sustained serious injuries.
[22]
The value of the property after the recovery of the two cell phones
is in my view neither here nor there. The amount of R 11 768.51
might seem low to some members of society, but I doubt whether the
average South African will perceive it to be such. Gone are
the days
where a cellular phone was just a device to make and receive calls
and text messages. Cellular phones (all the phones
were smart phones)
contain so much information of the owner to the extent that its
owner’s life gets interrupted and disorganized
by its theft.
Nostalgic moments saved for posterity on the phone’s photo
files are gone forever. Likewise documents and other
communication
are also gone. The phones were recovered due to the police’s
detective work and not due to the appellant’s
efforts.
[23]
I agree that the appellant should for all purposes be regarded as a
first offender. However, it should not be forgotten that
15 years’
imprisonment is the prescribed sentence for first offenders. That is
how serious robbery with aggravating circumstances
is regarded.
MM
[24]
Although the appellant was still young, he was married and had 4
children. In my judgment youthfulness,
per
se
,
without more should not be an immunizing factor against the
imposition of the prescribed minimum sentence. The court must look
at
youthfulness relative to the facts and circumstances of each case.
Where the crime was committed by a young person who was influenced
by
another or older person it should count in such youth’s favour.
Likewise where it is clear that the driving force behind
the crime
was youthful impetuousness, the court should consider that in favour
of the accused. A lack of maturity and attraction
to risky behavior
by some youth can also point to an underdeveloped appreciation for
responsibility.
[25]
However, the reality is that it has become too common in our courts
for young persons to be convicted of serious crimes. Such
crimes are
often times committed out of sheer criminality, for unfathomable
reasons and greed. In these cases the courts should
not be perceived
to be tone-deaf to the loud plea of society, that courts should
impose heavy sentences for serious crimes.
[26]
The appellant was not an immature young man. He was married and had 4
children. He planned this attack. He discharged a firearm
during the
attack. He threatened Ms K with the firearm in order to subject her
to his will. There is no evidence that he was influenced
to commit
the crimes.
[27]
In my judgment the factors mentioned by Ms. Kruger separately or
cumulatively do not constitute substantial and compelling
circumstances.
[28]
There is no reason why the 5 years’ imprisonment on count 1 was
also not ordered to run concurrently with the sentences
on counts 2
and 3. All the crimes formed part of different diabolical acts
committed at the same time and place. This amelioration
should have
been considered because the effective sentence of 20 years’
imprisonment for this first offender is shockingly
inappropriate. An
effective sentence of 15 years’ imprisonment will, in my view,
send a clear message that the appellant’s
conduct was
reprehensible and deserving of long term incarceration.
[29]
I accordingly make the following order:
1.
The
appeal against sentence is upheld to the following extent:
The
Regional Magistrate’s order in terms of s 280 (2) is set aside
and replaced with the following order:
a)
All
the sentences are ordered to run concurrently.
b)
The
sentence is ante dated to 23 May 2016.
___________________
C.J. MUSI, JP
I concur.
___________________
S. CHESIWE, J
Appearances:
For the
Appellant:
Ms S. Kruger
Legal Aid South Africa
Bloemfontein
For
the Respondent:
Adv M.M.M. Moroka
Director Public
Prosecutions
Bloemfontein