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[2017] ZAGPPHC 203
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Ashipembe v S (A204/2012) [2017] ZAGPPHC 203 (4 May 2017)
IN
THE HI
GH COURT OF SOUTH AFRICA
GAUTENG
DMSION, PRETORIA
CASE
NO: A204/2012
DATE:
04 MAY 2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the
matter between:
ISMAEL
ZONDI
MEKONDJO
ASHIPEMBE
Appellant
and
THE
STATE
Respondent
DATE
OF HEARING :
04 MAY 2017
DATE
OF
JUDGMENT:
04 MAY 2017
JUDGMENT
MANAMELA,AJ
Introduction
[1]
The
appellant was convicted
on
19 September 2011
on multiple counts,
ranging from housebreaking with intent to
steal
and theft to robbery with
aggravating
circumstances, by the Regional Court for the Ga4teng Regional
Division, Pretoria. I will henceforth refer
to
that court as the Trial
Court. He
was
sentenced to
a cumulative prison term of 15 years.
The
appellant was about 26 years of age at the time of sentencing
and committed the crimes between March and October 2004, when he was
about 19 or 20 years of age.
[2]
This appeal is
with leave of both the Trial Court and this Court. The Trial Court
granted the appellant leave
to
appeal against his
conviction in respect of Count 1, for housebreaking with intent
to
steal and theft of a Sony
digital camera, and Count 65, for housebreaking with intent
to
commit robbery and
robbery of cash in an amount of R300.00 and cheques for unspecified
value, with aggravating
circumstances. On petition, this
Court
granted him leave to appeal his sentence on all counts, including in
respect of Count 3, for theft of a Standard Bank Card
and Counts 4
to
64, for multiple thefts
of a
total
amount
of around R60 000.00 through withdrawals made using the stolen
bank
card in Count 3. He was
acquitted of two counts
of
rape
and a further count of theft of gym gloves.
[3]
He
had
pleaded not guilty to all
the charges and had the benefit of legal representation throughout
the proceedings. The Trial Court found
him guilty and sentenced
him to 3
years'
imprisonment in respect of Counts 1 and 3, taken together for
purposes of sentencing; 6 years for Counts 4-64 and another 6 years
for Count 65, making up the 15 years' prison term, already mentioned.
Brief
relevant background
[4] The
brief background, in as far as it is relevant for current purposes is
as follows. The appellant is a Namibian national and
was in the
country on a diplomatic visa due to a position held by his
grandmother in the Namibian High Commission. He was prosecuted
after
losing diplomatic immunity. Although, his convictions are in respect
of various dates in 2004, his arrest followed
the
events of the night of 12 October 2004. During that night, he
entered the apartment of the complainant, adjacent
to
his grandmother's apartment. The appellant stayed with his
grandmother. He had gained entry to the complainant's apartment
through
an open window with no burglar bars; threatened the
complainant with harm; tied her hands behind her and later
to
a chair
to
subdue her;
throttled and bit her, when she tried to defend herself; ransacked
her house for valuables; made the complainant
to
write out cheques and escaped with property of
the
complainant, in
the
early
hours of the morning.
The
police
traced the appellant and after searching his place (his grandmother's
apartment), they found the items robbed from
the
complainant and a Sony digital camera, and later a Standard
Bank card, stolen by the appellant from the complainant earlier that
year.
Ground
of
appeal
and submissions
(in brief)
[5]
As
stated
above,
the
appeal
is
against
conviction of
the
appellant
in
respect
of
counts 1
and
65,
for
which he
was
granted leave.
Some grounds were raised
against conviction of the
appellant
of
the
counts,
but,
it
is
not
necessary
to
deal
with
those
grounds.
Counsel
for
the appellant
conceded
that,
bearing
in
mind
the
totality
of
the
evidence
on
record,
no
convincing argument
can
be
made
against
conviction.
In
my
view,
the
concession
was
correctly
made,
as there is overwhelming
evidence sustaining the Trial Court's findings in this regard.
Therefore, the
appeal
in respect of conviction will fail.
[6]
Regarding appeal
against the
sentence
imposed by the
Trial
Court, it is
argued
that,
the
Trial
Court
did
not
take
into
account
the
cumulative
effect
of
the
individual
sentences
it imposed
as
punishment of
the
appellant.
The
argument
goes
further
to
say
that
the
15
years' imprisonment is
shockingly inappropriate.
On
the other hand, the State
contends that the individual
sentences
on
the
counts
making
up
the
15
years
are
"very
lenient"
and
that
nothing warrants
interference
by
this
Court with the
sentence imposed by
the
Trial Court.
Cumulative
effect of sentences imposed by the Trial Court
[7]
The
Trial
Court
had
approached
its
sentencing
exercise
as
follows.
It
found
existence of substantial
and compelling circumstances with regard to
Count
65, for robbery and
deviated
from
imposing
the
15
years' prison
term
prescribed by
legislation
and
ordered
the appellant
to
serve
a
6-year prison term,
instead. This,
the
Trial
Court stated, was based on consideration
of
the
appellant's
age.
Further,
the
Trial
Court
took
Counts
1
and
3
together
for purposes
of
sentencing
the
appellant
to
a
3-year
prison
term.
A
further
6
years
was
imposed
in
respect
of
the
multiple
theft
counts.
With
the
aforesaid
prison
terms
running
concurrently the
appellant was
effectively sentenced
to
15
years' imprisonment.
[8]
As
already
indicated, it is submitted on behalf of the appellant
that
the Trial Court ought to
have taken the cumulative effect of the individual sentences imposed
into consideration
when
discharging
its
sentencing
function.
It
does
not
appear
from
the
record that,
the
Trial Court directly
dealt with
the
issue of
the
cumulative effect of
the sentences, save
for
taking
together
some
of
the
counts for
purposes of
sentencing.
In
my
view,
determining
the cumulative effect of a sentence is essential for a determination
of an appropriate effective sentence.
[9]
In
this matter, the Trial court found on the robbery count, the
existence of substantial and compelling circumstances. The robbery
count is arguably the most serious of all the counts, although crime
by its nature is serious due
to
the impact that it has on the victims and society at large.
The Trial Court found reason
to
deviate from imposing the prescribed minimum sentence of 15
years and cited the appellant's age for the deviation. However, there
are other circumstances of this matter which warranted a closer look
for purposes of sentencing. For example, the appellant is
a first
offender; was still at school or of school going age, when he
committed the crimes; has spent 18 months in custody
awaiting trial
and prospects of his rehabilitation. Further, the probation officer's
report and testimony indicated that the appellant
was immature;
motivated by immaturity in the commission of the crimes and had good
chance of rehabilitating. This is not to state
that the where no
aggravating factors. The appellant came from a privileged background
and was therefore motivated, as the Trial
Court correctly found, by
greed. Further he subjected the complainant
to
long ordeal during the robbery.
[10]
However, it is my view that, the cumulative effect of the sentence
imposed was not sufficiently or reasonably taken into consideration
by the Trial Court. Section 280(1) of the Criminal Procedure
Act
permits the court to impose as many sentences as the Court is
competent
to
impose in
respect of the counts in hand, and such sentences are to run
concurrently, unless directed otherwise
by
the Court. Therefore, a sentencing Court
has
discretion to order or not
to
order sentences to run concurrently. This is a direct task of a
sentencing Court imposing multiple sentences.
In
S
v
Mthetwa
and
Others
2015 (1) SACR 302
(GP),
a
Full
Court of
this
Division held at paragraph 14 of its judgment
that, the sentencing or trial court
"had
a duty to consider the
cumulative
effect of
the sentences".
In
S
v
Mpofu
1985 (4)
SA
322
(ZHC) at 324G-J Reynolds J held that "in
all multiple crime cases the courts pay regard
to
what
Thomas
describes as
'the
totality principle'. The
court must look
at
the
totality
of the
criminal
behaviour
and
ask itself what
is
the appropriate sentence
for all
the
offences." Therefore, applying the
"totality principle" suggested above,
the Trial Court's ought to have
had
regard of the
total or all the circumstances of this matter. This is well
articulated by Professor SS Terblanche on pages 199 to
205 of the
third edition of his book
Guide to Sentencing
in
South
Africa,
in
which
he
confirms on
page
200
that
the
cumulative
effect of a sentence may be prevented in
three ways; "namely,
by
ordering the sentences to run
concurrently, by reducing the sentences, or by taking the
various counts together for purposes of sentencing''.
Conclusion
[11]
Therefore, in my view, the Trial Court did not sufficiently consider
the cumulative effect of the sentences it imposed on
the appellant. This, as.
already mentioned is a duty of a sentencing Court
and was
material to its sentencing discretion and
the judicious exercise of such discretion. The absence of such
consideration, in my view,
amounts to misdirection, entitling this
Court to
interfere on appeal.
[See
S
v
Malgas
2001 (1) SACR 469
(SCA) 478c h.] It is my further view that
the unjustified accumulation of sentences in this matter can be
avoided by ordering
the 6 year terms on counts 4 to 64 and the
robbery count, being Count 65, to run concurrently. The rest of the
sentences will remain
unaffected. Therefore,
the
appellant's
effective prison
term
will be
9
years
which will
be
antedated.
Order
[12]
In
the
result,
I
propose
that
the
following
order
be
made: [12.l] the
appeal
against
sentence
is
upheld;
[12.2]
the sentence of the Regional Court for the Gauteng Regional Division,
Pretoria is set aside and the following is substituted
for it:
"1.
The accused is sentenced to imprisonment as follows:
(a)
3
years
in
respect
of
counts
1
and
3;
(b)
6
years
in
respect
of
counts
4 to 64,
and
(c)
6
years
in
respect
of
count
65.
2.
the
sentences
in
Counts
4-64
and Count
65,
both
of
which
are
6
years, shall
run
concurrently;
3.
the
orders
in
1
and
2
hereof
are
antedated
to
the
19
September
2011.
4.
The
effect
of
the
orders
in
2
and
3
is
that
the
appellant
is
sentenced
to imprisonment for 9 years from 19 September 2011.
[12.3]
the appeal against conviction in Counts 1 and
65 is
dismissed.
__________________
K.
La. Manamela
Acting
Judge of the fight
Court
04MAY2017
__________________
SP
MOTHLE J
Judge
of the
High
Court
I agree
and it is so ordered
Appearances:
For the
Appellant :
Adv L Augustyn Justice Centre, Pretoria
For the
Respondent :
Adv Rossouw
Director of Public Prosecutions
Gauteng Division, Pretoria