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[2017] ZAGPPHC 725
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Jacobs v S (A02/2017) [2017] ZAGPPHC 725 (3 May 2017)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No. A02/2017
In
the matter between:
BILLY
THEMBA
JACOBS
Appellant
and
THE
STATE
Respondent
Case
Summary
:
Criminal Law – Sentence – Robbery with aggravating
circumstances - In sentencing the appellant, the trial court
misdirected itself in three fundamental respects: First, in
finding that this was his ‘third conviction of the same
offence’ and thus applying s 51(2)(a)(iii) read with Part II of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997
(the Act) in
sentencing the appellant as ‘a third or subsequent offender’
to 25 years’ imprisonment. Second,
in not finding that
there were substantial and compelling circumstances within the
meaning of s 51(3)(a) of the Act, which warranted
the imposition of a
lesser sentence than the prescribed one. Third, in ordering
that the appellant ‘is to serve two
thirds of his sentence
before he can be considered for parole’ without affording the
parties the opportunity to address it
on whether a non-parole period
as provided for in s 276B of the CPA should be imposed and what the
duration of the non-parole period
should be.
JUDGMENT
MEYER
J (NGOBENI AJ concurring)
[1]
This is an appeal against the sentence of imprisonment for 25 years
that was imposed upon the appellant, Mr Billy Themba Jacobs,
by the
Regional Court, Benoni (the trial court) on 19 August 2013, pursuant
to his conviction of robbery with aggravating circumstances
committed
on 25 July 2007.
[2]
It is common cause that the appellant has three previous
convictions: On 15 June 2000, he was convicted for having
committed
housebreaking with the intent to steal and theft on 7
October 1999, and he was sentenced to four years’ imprisonment
of which
two years were suspended for five years on condition that he
was not convicted of theft or robbery committed during the period of
suspension. On 25 September 2009, the High Court (Johannesburg)
convicted him of robbery, which he, it is common cause, committed
during June 2007, and he was sentenced to fifteen years’
imprisonment. And on 9 June 2010, the Regional Court (Benoni)
convicted him of robbery with aggravating circumstances, which he, it
is common cause, also committed during June 2007 shortly
before he
committed the robbery for which he was convicted by the High Court.
The Regional Court sentenced him to ten years’
imprisonment and
it was ordered that five years of that sentence is to run
concurrently with the sentence of fifteen years’
imprisonment
imposed upon him by the High Court.
[3]
The appellant thus committed housebreaking with the intent to steal
and theft on 7 October 1999. In June 2007, he committed
robbery
with aggravating circumstances and, shortly thereafter, robbery.
And on 25 July 2007, he again committed robbery
with aggravating
circumstances for which he, pursuant to his plea of guilty, was
convicted by the trial court on 19 August 2013,
and sentenced to 25
years’ imprisonment. The trial court ordered the whole
sentence to run concurrently with the sentences
imposed by the High
Court on 25 September 2009 and by the Regional Court on 9 June 2010
respectively. The trial court also
ordered that he ‘is to
serve two thirds of his sentence before he can be considered for
parole’. It is against
this sentence that the present
appeal lies.
[4]
The charge of robbery with aggravating circumstances against the
appellant was that he, on 25 July 2007 at Boksburg, unlawfully
and
intentionally assaulted Ms Mariette Smith and then with force took a
Mercedes Benz C180 with registration number and letters
DMN 772 EC
and a wallet with its contents, which were her property or in her
lawful possession, from her. The aggravating
circumstances were
alleged to be that Ms Smith was threatened with a firearm.
[5]
The facts to which the appellant pleaded guilty as set out in his
written statement in terms of s 112(2) of the Criminal Procedure
Act
51 of 1977 (the CPA), are,
inter alia
, the following:
‘
5.1 On 25 July 2007 I was
present in Boksburg in the jurisdiction of this Honourable Court.
5.2 On the said day I was in the
company of my friend to wit Jackson Dlamini. We were walking
along a road in Boksburg in
the direction of CTM Tiles. While
walking as mentioned above we saw a vehicle to wit a Mercedes Benz
180 with registration
number DMN 772 EC stopping in front of a gate
at an office block. When we were at the vehicle Jackson Dlamini
took out a
fire arm and pointed the fire arm at the driver, at the
time a female. He ordered the driver out of the vehicle and
informed
me to get behind the steering wheel of the vehicle which I
did. My friend then got into the passenger side of the vehicle
and I drove away with the vehicle. After having driven the
vehicle for a few kilometres I became scared that there is a
possibility that the vehicle might be fitted with a tracker. I
indicated to Jackson Dlamini that I do not want to participate
in the
offence any further. I parked the car and we walked away from
the vehicle. I then returned home.
5.3 Although I did not physically
handle the fire arm or pointed the fire arm at the driver of the
vehicle I associated myself with
the actions of Jackson Dlamini by
getting into the driver side of the vehicle and driving away with the
vehicle and its contents.’
[6]
In sentencing the appellant, the trial court misdirected itself in
three fundamental respects: First, in finding that
this was his
‘third conviction of the same offence’ and thus applying
s 51(2)(a)(iii) read with Part II of Schedule
2 of the Criminal Law
Amendment Act 105 of 1997 (the Act) in sentencing the appellant as ‘a
third or subsequent offender’
to 25 years’ imprisonment.
Second, in not finding that there were substantial and compelling
circumstances within the
meaning of s 51(3)(a) of the Act, which
warranted the imposition of a lesser sentence than the prescribed
one. Third, in
ordering that the appellant ‘is to serve
two thirds of his sentence before he can be considered for parole
without affording
the parties the opportunity to address it on
whether a non-parole period as provided for in s 276B of the CPA
should be imposed
and what the duration of the non-parole period
should be.
[7]
Robbery when there are aggravating circumstances or involving the
taking of a motor vehicle are offences listed in Part II of
Schedule
2 of the Act. Section 51(2)(a) of the Act provides as follows:
‘
Notwithstanding any other law
but subject to subsections (3) and (6), a regional court or a High
Court shall sentence a person who
has been convicted of an offence
referred to in-
(a)
Part II of Schedule 2, in
the case of-
(i)
a first offender, to
imprisonment for a period not less than 15 years;
(ii)
a second offender
of
any such offence
, to
imprisonment for a period not less than 20 years;
(iii)
a third or subsequent offender
of any such offence
,
to imprisonment for a period not less than 25 years;’
(Emphasis
added.)
[8]
The Supreme Court of Appeal, in
S v Mokela
2012 (1) SACR 431
(SCA) para 6, held as follows:
‘
It is a clear requirement of s
51(2)(a)(ii) that, for the appellant to attract a minimum sentence of
imprisonment of not less than
20 years, the state had to prove that
he is a second offender of robbery with aggravating circumstances.
This is a jurisdictional
requirement necessary to trigger s
51(2)(a)(ii). All that the state proved in this case is that
the appellant had previous
convictions, amongst others, for rape,
robbery, theft, assault and escaping from lawful custody. In
terms of s 51(2)(a)(ii)
it is not sufficient that the appellant has a
previous conviction for robbery. The conviction must be robbery
with aggravating
circumstances. Robbery and robbery with
aggravating circumstances are two different offences calling for
different sentences.’
[9]
The same holds true in the case of s 51(2)(a)(iii). The
jurisdictional requirement necessary to trigger s 51(2)(a)(iii),
and,
therefore, for an accused person to attract a minimum sentence of
imprisonment of not less than 25 years, is that the state
needs to
prove that an accused person is a third or subsequent offender of
robbery with aggravating circumstances (or a third or
subsequent
offender of robbery involving the taking of a motor vehicle).
The appellant only had one previous conviction for
robbery with
aggravating circumstances. Absent ‘substantial and
compelling circumstances’ as contemplated in
s 51(3)(a) of the
Act, the trial court, therefore, ought to have applied s 51(2)(a)(ii)
and sentenced the appellant (as a second
offender of robbery with
aggravating circumstances) to imprisonment for a period not less than
20 years.
[10]
The appellant testified and his counsel addressed the trial court in
mitigation of sentence. He was 25 years of age at
the time when
he committed this offence, he had completed standard 10, was married,
had three children (eleven, nine and seven
years of ages
respectively) and was self-employed earning approximately R4 800 per
month. He testified (and the state did
not challenge his
evidence) that he pleaded guilty to the commission of this offence
because he had remorse. He took the
trial court into his
confidence and admitted that had he committed crimes during the
June/July 2007 period of his life. He
had already been in
prison for four years at the time when he was sentenced by the trial
court and he told the trial court about
his involvement in programmes
and activities in prison, and his leading role therein. The
trial court should have accepted
that he was thus a good candidate
for rehabilitation and that he had sincere remorse.
Cumulatively these circumstances amount
to substantial and compelling
circumstances within the meaning of s 51(3)(a) of the Act, which
warranted the imposition of a lesser
sentence than the prescribed one
of 20 years. It follows that the sentence of imprisonment for a
period of 25 years must
be set aside.
[11]
In my view an appropriate sentence for the appellant is one of
imprisonment for a period of 15 years. The trial court
correctly considered the cumulative effect of the sentence it imposed
upon the appellant and those imposed by the High Court on
25
September 2009 and the Regional Court on 9 June 2010, and accordingly
ordered its sentence of imprisonment for 25 years to run
concurrently
with those sentences. The three offences are similar, they were
closely related in time and were committed during
the June/July 2007
period of the appellant’s life when he involved himself in the
commission of crimes. The cumulative
effect of the sentence
which I propose to impose upon the appellant and the sentences
imposed by the High Court and the Regional
Court would be harsh and
disproportionate to the triad consisting of the crime, the offender
and the interests of society.
[12]
I now turn to the trial court’s order that the appellant ‘is
to serve two thirds of his sentence before he can
be considered for
parole’ (the non-parole order). Section 276B(1) of the
CPA provides that ‘[i]f a court
sentences a person
convicted of an offence to imprisonment for a period of two years or
longer, the court may as part of the sentence,
fix a period during
which the person shall not be placed on parole.’ Such
period, in terms of that sub-section, is
‘. . . the
non-parole-period, and may not exceed two thirds of the term of
imprisonment imposed or 25 years, whichever is
the shorter.’
This provision was inserted into the CPA by
s 22
of the
Parole and
Correctional Supervision Amendment Act 87 of 1997
, which was
promulgated on 12 December 1997, but only put into operation on 1
October 2004. Relevant provisions of the
Correctional Services
Act 111 of 1998
have also been amended to take account of such an
order by a sentencing court.
[13]
It was pointed out in
Stander v The State
2012 (1) SACR 537
(SCA) paras 7-8, that prior to
s 276B
of the CPA a decision about
parole remained exclusively within the domain of the Department of
Correctional Services as an executive
function and courts have
persistently recognised the need for that to be so. And in
S
Mthimkhulu
2013 (2) SACR 89
(SCA), para 23, it was held that ‘a
court should only exercise its discretion to impose a non-parole
period in exceptional
circumstances’. (Also see
Ndlovu v S
(925/2016)
[2017] ZASCA 26
(27 March 2017), paras 8-12.)
[14]
The trial court made the non-parole order without affording the
parties the opportunity to address it on whether a non-parole
period
as provided for in
s 276B
of the CPA should be imposed and what the
duration of the non-parole period should be. Such failure, the
Supreme Court of
Appeal held in
Stander
(supra) para 22 and in
Ndlovu
para 11, constitutes a misdirection, and such failure,
it held in
Mthimkhulu
(supra) para 21, might, depending on the
facts of each case, well constitute an infringement of an accused
person’s right
to a fair trial. Furthermore, there were
no exceptional circumstances shown to exist in order for the trial
court to have
exercised its discretion to impose a non-parole period
against the appellant. The fact that the appellant was a
candidate
for rehabilitation is ‘a factor of paramount
importance in assessing whether to impose a non-parole period’
(
Mthimkulu
(supra) para 23).
[15]
In the result the following order is made:
(a) The appeal is upheld.
(b) The sentence of
imprisonment for a period of 25 years imposed upon the appellant by
the court below pursuant to his conviction
of robbery with
aggravating circumstances committed on 25 July 2007 and the order
fixing a non-parole period of two thirds of the
sentence are set
aside and replaced with the following order:
‘
(i)
The accused is sentenced to imprisonment for a period of 15 years
pursuant to his conviction of robbery with aggravating circumstances
committed on 25 July 2007.
(ii)
The whole sentence is to run concurrently with the sentences imposed
upon the appellant by the High Court on 25 September 2009
and by the
Regional Court on 9 June 2010.
(iii)
This
sentence is ante-dated to 19 August 2013.’
P.A.
MEYER
JUDGE
OF THE HIGH COURT
I
agree.
O.G.
NGOBENI
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing: 2 May 2017
Date
of judgment: 3 May 2017
Counsel
for the appellant: L Qoqo
Instructed
by: Legal Aid South Africa
(Johannesburg)
Counsel
for the respondent: MT Ntlakaza
Instructed
by: Office of the Director of Public Prosecutions
(Johannesburg)