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[2017] ZASCA 179
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Zwane and Others v S (1296/2016) [2017] ZASCA 179 (1 December 2017)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 1296/2016
In
the matter between:
MILTON
ZWANE
FIRST APPELLANT
STEVE
MNCUBE
SECOND APPELLANT
DHUMISANE
KHUMALO
THIRD APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Milton
Zwane & others
v
The
State,
(
1296/2016
)
[2017] ZASCA 179
(1 December 2017)
Coram:
Navsa,
Swain and Mathopo JJA and Mokgohloa and Ploos van Amstel AJJA
Heard:
01
November
2017
Delivered:
01
December 2017
Summary:
Appeal
against sentence – misdirections by the court a quo, including
failure to take period of incarceration into account
pending
finalisation of the trial – sentences reduced.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Louw, Fabricius and Hughes JJ,
sitting as Court of Appeal):
1.
The appeals against the sentences are upheld to the extent reflected
hereunder.
2.
The sentences imposed by the trial
court are set aside and replaced with the following:
‘
Accused
1 and 2:
Count
3: Each of the accused is sentenced to 15 years’ imprisonment.
Counts
4 and 5 (taken together for purposes of sentence): Each of the
accused is sentenced to 12 years’ imprisonment.
Counts
6 – 9 (taken together for purposes of sentence): Each of the
accused is sentenced to 10 years’ imprisonment.
Counts
10 and 11 (taken together for purposes of sentence): Each of the
accused is sentenced to 3 years’ imprisonment.
The
sentences in respect of counts 6, 7, 8, 9, 10 and 11 will run
concurrently with the sentences on counts 4 and 5.
The
effective sentence for each of the first and second accused is
imprisonment of 27 years;
(ii)
Accused 4:
Count
3: The accused is sentenced to 15 years’ imprisonment.
Counts
4 and 5 (taken together for purposes of sentence): The accused is
sentenced to 12 years’ imprisonment.
Counts
6–9 (taken together for purposes of sentence): The accused is
sentenced to 10 years’ imprisonment.
The
sentences in respect of counts 4 and 5 will run concurrently with the
sentence on count 3.
The
effective sentence is imprisonment of 25 years.’
JUDGMENT
Mokgohloa
AJA (Navsa, Swain and Mathopo JJA and Ploos van Amstel AJA
concurring):
[1]
This is an appeal by Messrs Milton Zwane, Steve Mncube, and Dhumisane
Khumalo, who were accused 1, 2 and 4 respectively in the
Gauteng
Division of the High Court, Pretoria. They were, together with their
co-accused, charged with five counts of robbery with
aggravating
circumstances, four counts of attempted murder and two counts
involving the unlawful possession of firearms and ammunition.
[2]
On 7 April 2010 the appellants were convicted as charged, except that
on counts 1 and 2 they were convicted of theft. Accused
4 was
acquitted on counts 10 and 11. The trial court (Raulinga J) sentenced
the appellants as follows:
1.
Accused
1 and 2:
Count
1: ten years’ imprisonment.
Count
2: eight years’ imprisonment.
Count
3: twenty years’ imprisonment.
Counts
4 and 5 (taken together for purposes of sentence): 15 years’
imprisonment.
Counts
6–9 (taken together for purposes of sentence): 15 years’
imprisonment.
Counts
10 and 11 (taken together for purposes of sentence): 3 years’
imprisonment.
The
trial court ordered the sentence in respect of count 2 to run
concurrently with the sentence in respect of count 1 and the
sentences relating to counts 6–9 and counts 10 and 11 to run
concurrently with the sentences in respect of counts 4 and 5.
The
first and second appellants were thus each sentenced to an effective
sentence of 45 years’ imprisonment.
Accused
4
Count
1: ten years’ imprisonment
Count
2: six years’ imprisonment
Count
3: 18 years’ imprisonment
Count
4 and 5: (taken together for purposes of sentence): 15 years’
imprisonment.
Count
6–9: (taken together for purposes of sentence): 15 years’
imprisonment.
The
court ordered the sentence in respect of count 2 to run concurrently
with the sentence in respect of count 1 and the sentences
relating to
counts 6–9 to run concurrently with the sentence in respect of
counts 4 and 5.
The
third appellant was sentenced to an effective sentence of 43 years’
imprisonment.
[3]
The appellants’ application for leave to appeal was dismissed
on 24 November 2011 by Raulinga J.
[4]
On 23 February 2015 their joint application for leave to appeal
against conviction and sentence, was granted by this Court to
the
full court of the Gauteng Division of the High Court, Pretoria. On 23
May 2016 the full court confirmed the convictions and
sentences
except the convictions and sentences on counts 1 and 2, which were
set aside.
Consequently
the effect was
that
accused 1 and 2 each had an effective sentence of 35 years’
imprisonment and accused 4 had an effective sentence of 33
years’
imprisonment.
[5]
On 24 October 2016 they were granted special leave by this Court to
appeal against the sentences in respect of counts 3–11.
[6]
The basic facts are that on 28 September 2006 the appellants,
together with their co-accused, armed with firearms, proceeded
to
Modimolle where they robbed a bank and fled the scene driving in two
getaway motor vehicles i.e a BMW and a Volkswagen Polo,
which were
reported stolen a week before the bank robbery. Whilst fleeing, the
police gave chase and the appellants shot at them.
The appellants
hijacked two more motor vehicles belonging to innocent bystanders.
The appellants were arrested and charged with
robbery with
aggravating circumstances, attempted murder and unlawful possession
of firearms and ammunition.
[7]
In sentencing the appellants, the trial court took into consideration
the seriousness of the offences and the impact they had
on the
community of Modimole. It noted that, in making their getaway,
the appellants shot at the police, damaged their vehicles,
and
hijacked two motor vehicles which belonged to innocent bystanders.
The court recorded further that innocent people were
traumatised
by
the robbery and its aftermath.
[8]
It was argued on behalf of the appellants that the trial court erred
in relying on the provisions of s 51(1) of the Criminal
Law
Amendment Act (the Minimum Sentence Act)
[1]
,
because the appellants were not informed of the applicability and
implications of the provisions of the Act. Second, that
the
trial court failed to take into account the period of almost three
years and seven months that the appellants had spent in
detention
pending the finalisation of the trial. Third, that the sentences were
too severe and should be reduced significantly
to be proportionate to
the nature and seriousness of the offences.
[9]
As regards the applicability of the Minimum Sentence Act, the
appellants relied on
Machongo
v S
[2]
where this Court stated that:
‘
It
is settled law that failure to forewarn or to mention the
applicability of the minimum sentence is a fatal irregularity
resulting
in an unfair trial in respect of sentence.’
[10]
In the present matter, the provisions of the Minimum Sentence Act
were stated in the indictment. At the commencement of the
trial and
when the charges were put to the appellants, they were informed that
the State would rely on the provisions of the Act.
The appellants
were legally represented and the indictment was brought to their
attention to enable them to prepare and conduct
their defences. I
therefore find that the appellants were well appraised of the
applicability of the Minimum Sentence Act. In my
view, their right to
a fair trial had not been infringed.
[11]
Regarding the severity of the sentence, the appellants suggested that
an effective sentence of between 16 and 20 years’
imprisonment
would be appropriate. I disagree. Having regard to the brazen manner
in which the bank was robbed and the getaway
effected, including a
shootout wild-west style with innocent bystanders being drawn into
the robbers’ web of violence, a
lenient sentence such as the
one proposed would send out the wrong message. It must become clear
to perpetrators of offences such
as the ones in question that they
will be met with the full force of the law and that sentences will be
appropriate to the offences
they commit. However, the period of
incarceration pending the finalisation of the trial was substantial
and ought to have been
taken into account in favour of the
appellants.
[12]
In sentencing the appellants Raulinga J stated that:
‘
[I]t
is high time that we should start to emphasise the rights of the
victims more than emphasising the rights of the perpetrators
.
. . While the sentences that I am going to mete out now will also
consider the circumstances of the accused, I want to
say that it is
more an emphasis on the rights of the victim and it is unfortunate
that this campaign is starting when you are being
sentenced because I
believe this campaign must be promoted from now on. The victims have
to be protected over and above the rights
of perpetrators and I must
state again that our sentences have to be blended with mercy and that
they have to be proportionate.
It is for that reason that the
following sentences are being meted out.’
[13]
The above statement offends against the triad enunciated in
S
v Zinn
[3]
which
remain instructive to every sentencing court. A court should, when
determining sentence, try to balance evenly the nature
and
circumstances of the offence, the characteristics and circumstances
of the offender, and the impact of the crime on the community,
its
welfare and concern. A court should strive to accomplish and arrive
at a judicious counterbalance between these elements in
order to
ensure that one element is not unduly accentuated at the expense of
and to the exclusion of the others. Regrettably, the
court a quo
failed to strike this balance but chose to accentuate the interest of
the victims more than that of the appellants.
This, in my view, is a
misdirection that warrants interference by this Court.
[14]
The failure by the trial court to take into consideration the
considerable period spent in prison is a further misdirection,
entitling this Court to interfere with the sentences imposed.
[4]
[15]
Having stated the above, I am of the view that an effective sentence
of 27 years’ imprisonment is appropriate in respect
of the
first and second appellants and an effective 25 years’
imprisonment in respect of the third appellant.
[16]
The following order is made:
1.
The appeals against the sentences are upheld to the extent reflected
hereunder.
2.
The
sentences imposed by the trial court are set aside and replaced
with the following:
‘
Accused
1 and 2:
Count
3: Each of the accused is sentenced to 15 years’ imprisonment.
Counts
4 and 5 (taken together for purposes of sentence): Each of the
accused is sentenced to 12 years’ imprisonment.
Counts
6 – 9 (taken together for purposes of sentence): Each of the
accused is sentenced to 10 years’ imprisonment.
Counts
10 and 11 (taken together for purposes of sentence): Each of the
accused is sentenced to 3 years’ imprisonment.
The
sentences in respect of counts 6, 7, 8, 9, 10 and 11 will run
concurrently with the sentences on counts 4 and 5.
The
effective sentence for each of the first and second accused is
imprisonment of 27 years;
(ii)
Accused 4:
Count
3: The accused is sentenced to 15 years’ imprisonment.
Counts
4 and 5 (taken together for purposes of sentence): The accused is
sentenced to 12 years’ imprisonment.
Counts
6–9 (taken together for purposes of sentence): The accused is
sentenced to 10 years’ imprisonment.
The
sentences in respect of counts 4 and 5 will run concurrently with the
sentence on count 3.
The
effective sentence is imprisonment of 25 years.’
__________________
FE MOKGOHLOA
ACTING
JUDGE OF APPEAL
APPEARANCES
For
the Appellants: Mr
Mujuto
Instructed
by:
Legal Aid South
Africa, Pretoria
Legal Aid South
Africa, Bloemfontein
For
the Respondent: J P van der
Westhuysen
Instructed
by:
Office of the
Director of Public Prosecutions, Pretoria
[1]
Criminal Law Amendment Act 105
of 1997
.
[2]
Machongo
v S
(20344/14)
[2014] ZASCA 179 (21 November 2014);
2014
JDR 2472 (SCA) para 10.
[3]
S v Zinn
1969 (2) SA
537
(A) at 540G.
[4]
S v Kgosimore
1999
(2) SACR 238
(SCA) para 10.