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[2017] ZAGPPHC 236
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Mashwele v S (A629/2015) [2017] ZAGPPHC 236 (16 February 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
16/2/2017
CASE
NO: A629/2015
REPORTABLE
IN
THE INTEREST OF OTHER JUDGES
REVIEWED
SAM
MASHWELE
Appellant
and
THE
STATE
Respondent
JUDGMENT
VILAKAZI,
AJ:
[1]
On 30 March 2015, appellant appeared in Pretoria Regional Court,
facing 3 counts of robbery with aggravating circumstances as
defined
in section 1 of the Criminal Procedure Act 51 of 1977 (the CPA")
(read with section 51 (2) of the Criminal Low Amendment
Act 105 of
1997 (the" Act"). He tendered a plea of not guilty and
exercised his constitutional right to remain silent.
The appellant
was legally represented throughout the trial.
[2]
The charges were subject to section 51 (2) read with Port II of
Schedule 2 of the "Act", which means that upon conviction
he faced the prospects of being sentenced to 15 years imprisonment
absent of finding substantial and compelling circumstances.
[3]
The trial court convicted appellant on 10 May 2010 and sentenced him
on 3 June 2010 as charged. It found that there existed
substantial
and compelling circumstances justifying the imposition of a lesser
sentence and in consequence sentenced appellant
to 30 years'
imprisonment. Appellant was legally represented during the trial.
[4]
The appeal before us is against conviction and sentence with leave to
appeal having been granted on petition by this court on
13 February
2015.
[5]
The appellant was convicted of the following counts:
Count 1: That on 25
December 2001 near Witbank Northern Transvaal, the accused unlawfully
and intentionally assaulted Bantu Mabena
and did there and then, with
force, take a 328i BMW, a motor vehicle, with registration number CNC
[...] MP, his property in his
lawful possession from him and the
aggravating circumstances being that firearms were used;
Count 2: That on 30
December 2001 near Witbank in the district of Northern Transvaal. the
accused did unlawfully and intentionally
assault Andries Sambula/John
Pienkie and did then with force took BMW, a motor vehicle, with
registration number CGJ [...] MP,
the property in his or her lawful
possession with aggravating circumstances being that firearms were
used;
Count 3: That on 15
January 2002 near Witbank, the accused did unlawfully and
intentionally assault Themba Masango and did then
with force took
BMW, a motor vehicle, with registration number JDC [...] GP, the
property in his or her lawful possession with
aggravating
circumstances being that firearms were used.
[6]
The sentences imposed upon the appellant were as follows:
Count 1: 12 years
Count 2: 12 years
Count 3: 12 years
[7]
The trial court ordered that 6 years of the sentence in count 3
should run concurrently with the sentences imposed in count
1 and 2.
The consequence thereof was that the accused was sentenced to an
effective 30 years imprisonment.
[8]
The state tendered the evidence of 11 witnesses, which included
amongst others 4 complainants, 5 police officers and a registered
police informant. The appellant testified in his own defence.
[9]
The state presented viva voce evidence from the following witnesses:
Bantu Abraham Mabena, Andries Sambula and Tshepo Gerry
Mpoise, the
owner of a 328i BMW motor vehicle with registration number CNC [...]
MP. John Pienkie Mashiane, the owner of a BMW,
a motor vehicle with
registration number CGJ [...] MP and Dr Themba Masango, owner of a
BMW motor vehicle with registration number
JDC [...] GP.
[10]
The police officers who testified were Inspector Cathrine Elizabeth
Fitzgerald, a fingerprint expert; Inspector Hendrik Johannes
Bester;
Tebogo Sekhobe, a registered police agent; Captain Johannes Kekai and
inspector Frederik Zitske and Inspector Simon Erasmus
as
investigating officers.
[11]
Mabena testified in respect of the robbery incident which occurred on
25 December 2001. His testimony is that on 25 December
2001 at 20h00
he was driving a BMW 328i with registration number CNC [...] MP in
Gumbi Street Lenville Township in Witbank. He
had just dropped off a
lady, and waited to ensure that the she was safe. As his car was
idle, 2 black men approached his vehicle.
The appellant had a firearm
and opened the driver's door and grabbed him with his left hand. The
other robber, namely Thavi Given
Mkhondo pushed him out of the
driver's seat and then occupied the driver's seat. He wrestled with
the appellant with the intention
to get away from the vehicle and the
appellant pointed a gun at him. He managed to get out of his motor
vehicle. He knew accused
1 before this incident as they grew up
together in Witbank. It is common cause that accused 1 was convicted
of count 1 and 2 and
sentenced to an effective imprisonment of 20
years.
[12]Tebogo
Sekhobe, a registered police agent testified that on 27 December
2001. he received instructions from Inspector Erasmus
to purchase a
BMW motor vehicle. He met with Inspector Kekai at a parking garage in
Pretoria and he gave him cash in the amount
of R 10 000. He was
driving in an Audi A4 motor vehicle. He met with the appellant and
accused 1 at a parking garage in the presence
of Inspector Kekai.
Appellant and accused 1 took him to the parking garage where the BMW
328 with registration number CNC [...]
MP was kept. Appellant
switched the engine on and removed the registration plates of the
vehicle. He paid the appellant cash in
the amount of R 10 000. He
drove the said BMW and the appellant and accused alighted off in
Beatrix Street in Pretoria. He handed
over possession and control of
the motor vehicle to Inspector Erasmus.
[13]
Inspector Simon Erasmus testified that he was an investigating
officer in this case and is stationed in the Organised Crime
Unit. He
used a registered agent whom he gave cash in the amount of RI0 000
and instructed him to purchase a BMW for that amount.
As per his
instruction the BMW with registration number CNC [...] MP was
purchased. On 27 December 2001 at 23H00 in Bush Street,
Willow Manor
he was handed over the said motor vehicle by the agent. The vehicle
was kept at storage and handed in as exhibit under
SAP13/l48/0l.
[14]Tshepo
Gerry Mpoise testified that he is the owner of a BMW 328 with
registration number CNC [...] MP. That on 23 November 2002
he
attended to a storage site in Pretoria West and identified his motor
vehicle before Inspector Zietzke.
[15]
In respect of the second incident, Andries Sambula, testified that on
30 December 2001 at about 20H30 he was occupying
a passenger
seat of a BMW with registration number CGJ [...] MP. The motor
vehicle was parked in the yard. The owner of the said
motor vehicle
namely, John Mashiane was in the house. An unknown male carrying a
firearm approached him and he instructed him to
open the driver's
door. He opened the rear door and climbed into the car. When he
opened the driver's door, a second unknown male
had already opened
the driver's door and climbed in the car. The keys had been left in
the ignition and the unknown male drove
the vehicle. They drove off
with him bundled into the boot and dropped him off on the highway.
Appellant was the driver of the
motor vehicle. He had an opportunity
to see him before being bundled in the boot.
[16]
John Pinkie Mashiane testified that he is the owner of a BMW, a motor
vehicle with registration number CGJ 809GP. He confirmed
the evidence
of Andries Sambula, that on 30 December 2001.while Andries was in his
motor vehicle he was hijacked. On 12 April 2002,
he identified his
motor vehicle before Inspector Erasmus.
[17]
Tebogo Sekhobe, testified that on 30 December 2001, he was contacted
by appellant and advised him that he is selling a BMW.
He could not
purchase the motor vehicle immediately due to instructions from
Inspector Erasmus. On 2 January 2002 at about 08H00
appellant
contacted him regarding this sale and purchase of a BMW. On the very
same day at 11H30 he received cash from Inspector
Erasmus. Subsequent
thereto, he met accused 1 and the appellant at a garage in Mamelodi.
From Mamelodi he drove with accused 1
and the appellant to a parking
garage in Vermeulen Street. The BMW was parked at Vermeulen Street in
the parking garage. Accused
1 switched on the engine of the motor
vehicle. Appellant removed the registration plates of the motor
vehicle. He paid an amount
of R0 000 to purchase this vehicle. He
then handed over the motor vehicle to Inspector Erasmus.
[18]
Captain Johannes Kekai testified that during December 2001, he was on
patrol operations called PATROL. Accused 1 informed him
that a BMW
motor vehicle was available for sale. The appellant took him to a
parking garage at Vermeulen Street in Pretoria where
the BMW was
parked. Tebogo Sekhobe paid the cash to accused 1.
[19]
Inspector Cathrina Elizabeth Fitzgerald testified that he is based in
the Fingerprints Department, stationed at the Criminal
court centre.
That on 3 January 2002 he investigated a 318 BMW with registration
number CGJ [...] MP. Her report indicated that
the appellant
fingerprints were found on the right back door handle of the said
motor vehicle.
[20]
In respect of the third incident, Dr Temba Masango testified that on
15 January 2002 he was driving a motor vehicle, a BMW
with
registration number JDC [...] GP at approximately 21h00. He was
caught in traffic in Kromdraai. 2 men armed with guns approached
him.
They instructed him to occupy the back seat and place his head in
between his thighs. The 2 men occupied the front seats.
Amidst the
hijacking he heard shots from behind and could see the blue SAPS
flashing lights. The hijackers in his car fired shots
at the SAPS
vehicle. The hijackers searched him and robbed him of his mobile
phone, cash in the amount of R500 and then proceeded
to bundle him in
the boot of his car. Thereafter he was dropped off in Menlyn Park
Shopping Centre.
[21]
On 17 January 2002, he identified his motor vehicle in Pretoria West
before Inspector Zitske.
[22]
Inspector Hendrik Johannes Bester testified that he is stationed at
Witbank and on 15 January 2002 at approximately 21h00.
He was driving
a SAPS motor vehicle. He fired shots at a BMW motor vehicle with
registration number JDC [...] GP and in return
the passengers of the
BMW returned fire. As a result of this shooting, he was shot in the
left eye and his face is now partially
paralysed.
[23]
Tebogo Sekhobe regarding this incident testified that appellant
contacted him on 16 January 2002 at approximately 13h30. He
informed
him that he is in possession of a stolen motor vehicle and requested
to park it in his premises. He opened the gate and
allowed the
appellant onto his property to park the BMW. Appellant further
informed him that there was a shoot-out with the police
and he shot
and wounded a police officer as a result of the hijacking of this
motor vehicle. The BMW was kept overnight on his
premises. He drove
accused 1 and the appellant to Mamelodi. He observed that the motor
vehicle had bullet holes. Inspector Erasmus
seized the motor vehicle.
[24]
The appellant denied any involvement in the robbery. He testified
that in respect of the incident on 25 December 2001, he was
in
Mamelodi with his family at home watching television.
[25]
In respect of the robbery that took place on 30 December 2001, he
could not recall his whereabouts. His defence was on alibi.
[26]
In respect of the third incident that occurred on 15 January 2002, he
denied any involvement in this crime and claimed to have
been at his
grandmother's house. He testified that Andre Flock, a police officer,
arrested him on 5 September 2002 at his residential
home.
[27]
The trial court concluded that the stole proved its case beyond a
reasonable doubt and that the Stole's case against the appellant
was
overwhelming.
[28]
It was submitted by counsel on behalf of the appellant that he cannot
argue with any measure of conviction regarding the conviction
of the
appellant by the trial court in respect of the three charges for
which he has been convicted. In a nutshell it was the appellant's
submission that he concedes to his conviction by the court a quo.
THE SENTENCE
[29]
The trial court convicted appellant as charged. II found that there
existed substantial and compelling circumstances justifying
the
imposition of a lesser sentence and in consequence sentenced
appellant to 30 years imprisonment.
[30]
As to sentence, the trial court duly considered the appellant's
personal circumstances as well as the seriousness of the offences.
The appellant was 24 years of age at the time of the commission of
the offences. He has a previous conviction of robbery and that
he had
spent 9 years in custody awaiting conclusion of his trial.
[31]
In respect of how the appellant committed these offences the evidence
presented was that on 25 December 2001, the appellant
was in
possession of a firearm, which he pointed at Bantu Mabeno, the
complainant. In respect of the second incident which took
place on 30
December 2001, the appellant was the driver of the vehicle and with
the assistance of accused 1 who was in possession
of a firearm,
humiliated Andries Sombula, the complainant, by bundling him in the
trunk of the motor vehicle and dumped him in
the evening on the
highway. In respect of the third incident on 15 January 2002, Dr
Mosongo was hijacked at gunpoint and also bundled
in the boot of his
car and dropped off in the middle of the night at Menlyn Shopping
Centre.
[32]
What Further aggravated these circumstances is that the appellant
exchanged fire with the police and Inspector Hendrik Bester
was shot
and suffered a permanent injury. The court took into account the fact
that the appellant was brazen and despite the consequences
that he
might face he nevertheless followed through with his plans. Despite
the overwhelming evidence and his fingerprints being
found on the
motor vehicle, he showed no contrition and pleaded not guilty.
[33]
Regarding the needs of the society there is no doubt that the
community expects the court to protect innocent men and women.
There
is an increase in armed robberies and the community expects the court
to send a clear message to would be offenders that
such acts will not
be tolerated. The trial court mentioned that these crimes have become
a common place in and around major cities.
[34]
In argument before us it was submitted that the sentence imposed by
the trial court is shockingly excessive and not a balanced
one.
Counsel on behalf of the appellant argued that the trial court ought
to have considered that the vehicles were recovered and
there is no
evidence that they were damaged and weight should thus be accorded to
this factor.
[35]
Counsel on behalf of the appellant submitted that the complainants
did not sustain any injury during the robbery.
[36]
It was the appellant's final submission that a period of 8 years he
spent in custody awaiting completion of his trial is unreasonably
long. In support of this submission counsel relied on the dicta of
Makgoka J in
S v Xaba
[A487/2014] at par 31:
[37]
"I need to say more on the period spent in custody, as there
seems to me a perception that where the prescribed sentence
is life
imprisonment, that factor becomes irrelevant. That is a wrong premise
because 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 circumstances, including the
period spent in detention prior to conviction
and sentencing, is just
one".
[38]
Counsel on behalf of the State argued that appellant was not a first
lime offender. He has a previous conviction of robbery
in 1997 for
which he was given a 4 years imprisonment. Appellant has become
habituated. Appellant is to blame for spending a lengthy
period of
time in custody due to changing his legal representatives.
[39]
Appellant did not testify in mitigation of sentence, his legal
representative addressed the court from the bar, that he is
24 years
old, that the girlfriend that was expecting his children. Those
children are 9 years old and that the owners of these
motor vehicles
have recovered their assets.
[40]
In relation to the seriousness of these offences, the police had to
intervene and use the state resources in order to restore
possession
of the motor vehicles to their respective owners. Appellant was part
of a syndicate, which was astute in its illicit
activities and
targeted BMW 3 series motor vehicles. Further aggravating factor is
that in these incidents the complainants were
hijacked at gun point,
bundled in the boot and left stranded in the middle of the night,
dumped on the side of the road and in
the shopping centre. A police
officer in executing his duties, was shot at in his eye and has lost
sight of is left and is partially
paralysed as a result of appellant
selfish deed.
[41]
The society expects the court to protect it against this kind of
offence, which is prevalent in the cities.
[42]
In
S v Radebe
2013 (2)
SACR (SCA) 165, Lewis JA stated the following in regard to the period
spent in prison awaiting trial: "A mechanical
formula to
determine the extent to which the proposed sentence should be
reduced, by reason of the period of detention prior to
conviction is
unhelpful. The circumstances of the individual accused must be
assessed in each case determining the extent to which
the sentence
proposed should be reduced. A better approach in my view is that the
period in detention pre-sentencing is but one
of the factors that
should be taken into account in determining whether the effective
period of imprisonment to be imposed is justified,
whether the
effective period of imprisonment to be imposed is justified, whether
it is proportionate to the crime committed,"
It is my view that
the submission by appellant has no merit in view of the fact that the
magistrate took the period spent in prison
into account and deviated
from imposing a prescribed minimum sentence of 15 years per charge
per charge convicted, I consider imprisonment
to be appropriate for
this type of offence.
[43]
The first question to be considered is whether the trial court having
found that substantial and compelling circumstances did
exist, which
warranted deviation from imposing a sentence ordained by the
Legislature for serious offences in imposing a 30 year
period of
imprisonment, did it exercise its discretion judicially and properly?
[44]
Did the magistrate commit a gross misdirection and is a 30 year
period given the personal circumstances of the appellant and
the
needs of society, is this period of imprisonment shockingly
excessive?
[45]
It is generally accepted that inordinately long periods of
imprisonment do not contribute to the reform of an accused person,
On
the contrary they have the negative effect of denuding the accused of
all hope of rehabilitation. I consider Nicholson JA's
dicta in
S v
Skenjana
1985 (3) SA 51
(A) at 55C-D, appropriate, He said the
following:
'Nor
is it in the public interest that potentially valuable human material
should be seriously damaged by long incarceration. As
I observed in
S
v Khumalo and Another
[1984] ZASCA 30
;
1984 (3) SA 327
(A) at
331, it is the experience of prison administrators that unduly
prolonged imprisonment brings about the complete mental and
physical
deterioration of the prisoner. Wrongdoers "must not be visited
with punishments to the point of being broken"
(per Holmes JA in
S v Sparks and Another
1972
(3) SA396 (A) at410G)'
[46]
Giving all due weight to the enormity of the crime, the needs of
society in an appropriately severe punishment being imposed
for it, I
consider the personal circumstances of the accused. He was 24 years
old at the time of the commission of the offence,
the fact that the
complainants were unharmed and that he spent a period of 8 years in
custody as strong mitigating factors. These
circumstances
cumulatively regarded satisfy me that a sentence of 30 years is
shockingly excessive and inappropriate.
[47]
Counsel on behalf of appellant submitted that a sentence of not more
than 15 years would strike the necessary balance between
the
interests of the community and the personal circumstances of the
appellant whilst still keeping in mind the fact these are
all serious
offences,
[48]
Having considered all the relevant circumstances and the mitigating
factors and bearing in mind all the factors relevant when
imposing
appropriate sentence I would uphold the appeal. An effective sentence
of 20 years imprisonment in my view would be appropriate.
[49]
In the result I would make the following order:
i.The appeal against conviction is
dismissed:
ii.The appeal against sentence
succeeds:
iii.The sentence imposed by the court
a quo is set aside and replaced with the following:
"On counts 1, 2 and
3 taken together for the purpose of sentence the accused is sentenced
to 20 years Imprisonment." The
dale of commencement of sentence
is backdated to 3 June 2010.
______________________
T
D VILAKAZI
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
DIVISION
I
agree it is so ordered
_______________________
N.V KHUMALO J
JUDGE OF THE HIGH COURT,
GAUTENG
DIVISION
DATED
AND SIGNED AT PRETORIA ON 15 DECEMBER 2016
MATTER
HEARD: 5 DECEMBER 2016
DATE
OF JUDGMENT: 16 FEBRUARY 2017
COUNSEL
FOR APPELLANT: ADVOCATE R.S MATLAPENG
(Instructed
by Legal Aid South Africa, Pretoria Justice Centre)
COUNSEL
FOR RESPONDENT: ADVOCTATE P.W COETZE
(Directorate
of Public Prosecutions)