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[2017] ZAFSHC 48
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Molisalife v S (A217/2016) [2017] ZAFSHC 48 (16 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A217/2016
In
the appeal between:-
KEKELETSO
JOSEPH MOLISALIFE
Appellant
and
THE
STATE
Respondent
CORAM:
MUSI, AJP
et
VAN ZYL, J
HEARD
ON:
6 MARCH 2017
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON:
16 MARCH 2017
Sentence:
Minimum sentence applicable when accused convicted of housebreaking
with the intent to commit an offence and
robbery with aggravating
circumstances – The fact that robbery with aggravating
circumstances coupled with housebreaking
with intent to commit a
crime aggravating factor. Exercise of sentencing discretion
improper if insufficient information
placed before presiding
officer. Sentence may be antedated by trial court after its
sentence was set aside on appeal and
matter remitted to it for
sentence.
Musi,
AJP
[1]
The appellant was charged with housebreaking with the intent to rob
and robbery with aggravating circumstances in the regional
court
Viljoenskroon.
He
pleaded guilty to and
was convicted of housebreaking with the intent to steal and robbery
with aggravating circumstances. He was
sentenced to 15 years’
imprisonment. He successfully applied, in the court
a quo
,
for leave to appeal against sentence only.
[2]
In the written statement in terms of section 112(2) of the Criminal
Procedure Act 51 of 1977 (Act) the appellant stated that
he was at
Viljoenskroon on 30 November 2014. He decided to enter the
house of the complainant. He broke a window and
gained entry to
the premises. Whilst he was gathering his loot in the house,
the complainant woke and found him in her house.
They wrestled.
He freed himself and ran to the kitchen where he got a knife.
He threatened the complainant with
the knife and asked her for
money. She told him that she does not have any on her person,
but that she has in the bank. She
proposed that they should go
to an Automatic Teller Machine (ATM) so that she could withdraw
money. They drove, with her
car, to the nearest ATM. She
withdrew R2400 and handed it over to the appellant. They went
back to her house, where
he
took an iPhone valued at R7000, a camera worth R2000 and a multi pad
(value unknown). He further admitted that he acted unlawfully
and intentionally.
[3]
It is trite that punishment is pre-eminently a matter for the
discretion of the trial court. The court of appeal must
approach an appeal against sentence with due deference to the trial
court. It may interfere when the discretion was improperly
exercised. The discretion would be wrongly exercised if the
trial court committed an irregularity, misdirected itself or
imposed
a sentence that is disturbingly inappropriate.
[4]
The regional magistrate held that the Criminal Law Amendment Act 105
of 1997 (Amendment Act) is not applicable in cases where
an accused
is convicted of housebreaking with the intent to commit an offence
and robbery with aggravating circumstances. The
regional
magistrate, in his judgment on sentence, said that there is a High
Court judgment supporting his holding. He could
unfortunately
not find the case reference. My efforts to find a case wherein
that principle was established, unsurprisingly,
did not yield any
fruit.
[5]
Mr. Simpson on behalf of the respondent, supported the regional
magistrate’s holding and referred us to
S
v Maswetswa
2014 (1) SACR 288
(GSJ) as authority for the proposition.
[6]
In
Maswetswa
it is correctly pointed out that a charge of housebreaking with
intent to commit an offence and the commission of another offence
in
the house consists of two substantive crimes. First,
housebreaking with the intent to commit a crime. Second the
substantive crime itself. Wepener J opined that the practice in
terms of which accused are charged with one offence whereas
two
offences were committed should change. He suggested that the
better practice would be that an accused person should be
separately
charged with the offence of housebreaking with intent to commit a
crime and the crime itself, especially when the substantive
crime is
one mentioned in Schedule 2 of the Amendment Act. He put it thus, at
para 16:
“
There now appears
good reason why the offence of housebreaking with the intent to
commit a crime and the crime should be charged
as separate offences
and not as a single offence in the case of robbery, murder and rape
and any offence for which a minimum sentence
is prescribed. In
matters where the charges involve housebreaking with the intent to
rob and robbery a first offender for robbery
would attract a minimum
sentence of 15 years imprisonment, whilst the housebreaking charge
would attract a different, albeit lesser,
minimum sentence of 5 years
imprisonment. The same would apply to housebreaking with the intent
to murder or rape…”
[7]
In
Maswetswa
the accused was,
inter
alia,
charged with and convicted of housebreaking with the intent to rob
and robbery with aggravating circumstances. The learned
Judge
correctly, in my view, concluded that the minimum sentence prescribed
for robbery with aggravating circumstances is applicable.
It
would indeed be counterintuitive and illogical to reason that because
the substantive crime of robbery with aggravating
circumstances has
been coupled with the offence of housebreaking with the intent to
commit an offence therefore the offence of
robbery with aggravating
circumstances should not be visited with the prescribed minimum
sentence that the legislature ordained
for such crime. The
crime of robbery with aggravating circumstances has been committed
whether it is coupled with or separated
from the offence of
housebreaking with intent to commit a crime. It cannot be
ignored.
Maswetswa
is not authority for the regional magistrate’s holding.
[8]
I agree with the view espoused in
S v Maunye
2002 (1)
SACR 266
(T) at 277F - 278B to the effect that:
“
An incident of
housebreaking with intent to steal and theft, committed with a single
intention, is to be regarded as essentially
the crime of theft, with
the housebreaking as a factor that tends to aggravate the seriousness
of the offence and therefore the
severity of the sentence.”
So
too should the housebreaking with the intent to commit a crime be
seen as an aggravating factor when it is coupled with robbery
with
aggravating circumstances. In practice this would mean a sentence
higher than the minimum sentence may, depending on the facts,
be
imposed when the crimes are coupled. Fifteen years is the minimum
sentence and not the maximum sentence.
[9]
The regional magistrate erred by irregularly holding that the
prescribed minimum sentence for robbery with aggravating
circumstances
is not applicable when the robbery with aggravating
circumstances is coupled with housebreaking with the intent to commit
an offence.
He came to the conclusion that the Amendment Act
was not applicable without a proper foundation for such holding. It
is not clear why he could not look for the case that he relied upon
before sentencing the appellant. He said the following:
“
Voordat ek verder
gaan, u regsverteenwoordiger het melding gemaak van die Wet op
Minimum Vonnisse, die Hof het dit betwyfel, aangesien
ek van oordeel
is dat daar onlangs ‘n beslissing was tot die effek dat waar ‘n
persoon nie net suiwer aangekla is van
roof met verswarende
omstandighede nie maar dit gekoppel is aan huisbraak met die opset om
‘n misdryf te pleeg dan is die
Wet op Minimum Vonnisse nie van
toepassing nie. Ek kon ongelukkig nie die betrokke saak aan die
hande kry nie, maar ek het
bevestiging dat ek korrek is dat onder
hierdie omstandighede die Wet op Minimum Vonnisse nie van toepassing
is nie.”
[10]
When the appellant’s attorney wanted to address the regional
magistrate on the issue of substantial and compelling circumstances
he interrupted him and informed him that he is of the view that the
Amendment Act is not applicable. The appellant’s
attorney
accepted the regional magistrate’s contention and thereafter
only asked that the regional magistrate should show
mercy. The
record reads as follows:
“
MNR CAMPHER
:
…Wat die Wet op Minimum Vonnisse aanbetref, of dan ‘n
spesifieke vonnis is dit so dat hierdie een van daardie misdrywe
is
wat dan nou ‘n spesifieke vonnis is wat die Hof moet oplê.
HOF
:
Ekskuus net, ek is van oordeel dat hier nie, omdat hy gekoppel is
saam met ‘n ander klagte is ek van oordeel
geld die Wet op
Minimum Vonnisse nie.
MNR CAMPHER
:
Ek gaan nie met u stry oor dit nie, ek sal dit aanvaar.
HOF
:
Ek sal dat die Aanklaer vir my daardie aspek opklaar.
MNR CAMPHER
:
Ek sal u woord daarvoor vat Edelagbare, ek gaan nie met u stry
daaroor nie, nie onder hierdie omstandighede nie. Wat die
vonnis aanbetref sal ek vra dat u die beskuldigde genadig sal wees.
Wat artikel 103 van die Wet op Beheer van Vuurwapens
aanbetref, ek
het nie betoog daar nie, ek sal dit in die hande van die Hof laat.
HOF
:
Voordat die Aanklaer my toespreek sal ek vra dat die Aanklaer net
daardie aspek vir my opklaar, maar ek is van
oordeel dat die Wet op
Minimum Vonnisse nie hier van toepassing is nie, gesien in die lig
daarvan dat dit gekoppel is aan ‘n
verdere misdaad, ek is seker
daar is gesag tot daardie effek, ek dink as u Mnr Wiegand kontak sal
hy u dadelik kan sê, die
Hof verdaag vir ‘n wyle.
HOF VERDAAG
”
[11]
When the court reconvened the regional magistrate commenced with his
judgment without giving the prosecutor an opportunity
to address him
or to call witnesses. Section 274 of the Act reads as follows:
“
Evidence on
sentence
274
(1)
A court may, before passing sentence, receive such evidence as it
thinks fit in order to inform itself as to the proper sentence
to be
passed.
(2) The accused may
address the court on any evidence received under subsection (1), as
well as on the matter of the sentence, and
there after the
prosecution may likewise address the court.”
It
is clear that the court has a discretion to receive any evidence
which it thinks may assist it in arriving at a proper sentence.
The
prosecutor may address the court before sentence is passed. The
regional magistrate did not allow the appellant’s legal
representative to fully address him on sentence. He did not allow the
prosecutor to address him. It is an irregularity but not
necessarily
of the kind that vitiates the proceedings. Although the respondent
has not taken that omission on review or appeal
it is indicative of
the fact that the regional magistrate just did not have enough
information at his disposal to embark on the
important process of
sentencing.
[12]
In
S
v Malgas
2001 (1) SACR 469
(SCA) paras [7] - [9] the proper approach to the
sentencing regime in the Amendment Act was set out as follows:
“
[7] First, some
preliminary observations. The provisions are to be read in the light
of the values enshrined in the Constitution
and, unless it does not
prove possible to do so, interpreted in a manner which respects those
values. Due weight must be given
to the fact that these
provisions were not intended to be permanent fixtures on the
legislative scene and were to lapse after two
years unless extended
annually. (They were put into operation on 1 May 1998 and were
extended for 12 months with effect from 1
May 2000.) That shows that
when conceived they were intended to be relatively short-term
responses to a situation which it was
hoped would not persist
indefinitely. That situation was and remains notorious: an alarming
burgeoning in the commission of
crimes of the kind specified
resulting in the government, the police, prosecutors and the courts
constantly being exhorted to use
their best efforts to stem the tide
of criminality which threatened and continues to threaten to engulf
society. It was of course
open to the High Courts even prior to
the enactment of the amending legislation to impose life
imprisonment in the free exercise
of their discretion. The very fact
that this amending legislation has been enacted indicates that
Parliament was not content with
that and that it was no longer to be
'business as usual' when sentencing for the commission of the
specified crimes.
[8] In what
respects was it no longer to be business as usual? First, a court was
not to be given a clean slate on which
to inscribe whatever sentence
it thought fit. Instead, it was required to approach that question
conscious of the fact that the
legislature has ordained life
imprisonment or the particular prescribed period of imprisonment as
the sentence which should
ordinarily
be imposed for the commission of the listed crimes in the specified
circumstances. In short, the legislature aimed at ensuring
a severe,
standardised, and consistent response from the courts to the
commission of such crimes unless there were, and could be
seen to be,
truly convincing reasons for a different response. When considering
sentence the emphasis was to be shifted to
the objective gravity of
the type of crime and the public's need for effective sanctions
against it. But that did not mean that
all other considerations were
to be ignored. The residual discretion to decline to pass the
sentence which the commission of such
an offence would ordinarily
attract plainly was given to the courts in recognition of the
easily foreseeable injustices which
could result from obliging them
to pass the specified sentences come what may.
[9] Secondly,
a court was required to spell out and enter on the record the
circumstances which it considered justified
a refusal to impose the
specified sentence. As was observed in
Flannery v Halifax Estate
Agencies Ltd
( [200]
1 WLR 377
at 381H) by the Court of Appeal,
'a requirement to give reasons concentrates the mind, if it is
fulfilled the resulting decision
is much more likely to be soundly
based - than if it is not'. Moreover, those circumstances had to be
substantial and compelling.
Whatever nuances of meaning may lurk in
those words, their central thrust seems obvious. The
specified sentences were not
to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the
offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of
the policy implicit
in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances.
Nor were marginal
differences in the personal circumstances or degrees of participation
of co-offenders which, but for the provisions,
might have justified
differentiating between them. But for the rest I can see no warrant
for deducing that the legislature intended
a court to exclude from
consideration,
ante omnia
as it were, any or all of the many
factors traditionally and rightly taken into account by courts
when sentencing offenders.
The use of the epithets 'substantial' and
'compelling' cannot be interpreted as excluding
even from
consideration
any of those factors. They are neither notionally
nor linguistically appropriate to achieve that. What they are apt to
convey,
is that the ultimate cumulative
impact
of those
circumstances must be such as to
justify
a departure. It is
axiomatic in the normal process of sentencing that, while each
of a number of mitigating factors when viewed
in isolation may have
little persuasive force, their combined impact may be considerable.
Parliament cannot have been ignorant
of that. There is no indication
in the language it has employed that it intended the enquiry into the
possible existence of substantial
and compelling circumstances
justifying a departure, to proceed in a radically different way,
namely, by eliminating at the
very threshold of the enquiry one or
more factors traditionally and rightly taken into consideration when
assessing sentence. None
of those factors have been singled out
either expressly or impliedly for exclusion from consideration.”
[13]
The regional magistrate took a less onerous route in order to impose
the sentence of 15 years’ imprisonment. He
preferred a
clean slate on which to inscribe whatever sentence, within his
sentencing jurisdiction, he thought fit. Section
51(3) of the
Amendment Act requires the court to be satisfied that substantial and
compelling circumstances exist which justifies
a deviation from the
prescribed minimum sentence and it must state on the record what
those circumstances are. The converse
is also demanding.
Before finding that there are no substantial and compelling
circumstances the court is enjoined to have
regard to all the
circumstances touted to be substantial and compelling. It must
give reasons why it is satisfied that the
circumstances claimed to be
substantial and compelling are not. The reason why an accused does
not receive the benefit of a lesser
sentence would probably be
equally if not more important to him or her than the reason why he or
she gets it. The task is equally
onerous, the only difference being
that the court need not record the circumstances that it finds not to
be substantial and compelling.
It must, however, be remembered that a
regional court is, in any case, a court of record. The appellant’s
legal representative
accepted the regional magistrate’s
proposition, without reservation, to the extent that he abandoned any
effort to endeavor
to argue that there are substantial and compelling
circumstances.
[14]
Neither the respondent nor the appellant placed any further evidence,
with regard to the detail to complete the picture, on
record. There
was no evidence as to where and how the appellant was arrested.
There was no evidence with regard to
where and how some of the
complainant’s property was recovered. Mr. Campher, who
appeared on behalf of the appellant
in the trial court, in his
address before sentence, informed the court that all the goods except
the cash were recovered. The
trial court had scant information
for the purposes of determining an appropriate sentence. Robbery
with aggravating circumstances
is a serious offence which, as a rule,
warrants the imposition of long term imprisonment.
[15]
This is a typical case where the provisions of section 112(3) of the
Act could have been used. Section 112(3) provides:
“
Nothing in this
section shall prevent the prosecutor from presenting evidence on any
aspect of the charge, or the court from hearing
evidence, including
evidence or a statement by or on behalf of the accused, with regard
to sentence, or from questioning the accused
on any aspect of the
case for the purposes of determining an appropriate sentence.”
[16]
Section 112(3) empowers the accused and the prosecutor to adduce
evidence relevant to sentencing after conviction but before
sentence.
S v Khumalo
1978 (4) SA 516
(N) at 518D to 519H.
Relevant evidence at this stage of the proceedings is very important.
It assists the presiding officer
in determining a fit sentence.
In some cases, depending on the factual information contained
in the section 112(2) statement,
it would not be necessarily to
adduce further evidence. In other cases, such as this one, it
would be in the interests of
justice to do so. The purpose of
the evidence is to supplement the facts set out in the plea of guilty
with evidence that
adds more detail to the factual circumstances.
Such evidence should, however, not contradict the factual basis
on which the
accused was convicted.
S v Swarts
1983 (3) SA 261
(C) at 262H to 263 D;
S v Dzukuda
;
S
v Tshilo
2000 (4) SA 1078
(CC) at para [25]. The
regional magistrate embarked on the sentencing exercise without being
properly apprised of all the
relevant factual circumstances.
[17]
The regional magistrate said the following with regard to the fact
that the appellant pleaded guilty: “U het graad nege
op skool
geslaag, u het skuldig gepleit op die betrokke misdryf.”
Nothing else is said about the plea of guilty and
its impact on
the sentence. I am not surprised that the regional magistrate
could not give proper weight to the plea of guilty
under these
circumstances. The weight to be given to a plea of guilty, as a
sign of remorse is, inter alia, dependent on
the reason why the
accused pleaded guilty. The regional magistrate could not
determine this factual issue because
he
did not have all or more of the facts before him. In
S
v Matyityi
2011 (1) SACR 40
(SCA) para [13] the importance of this factual
enquiry is lucidly explained, as follows:
“
[13] Remorse was
said to be manifested in him pleading guilty and apologising, through
his counsel (who did so on his behalf from
the bar) to both Ms KD and
Mr Cannon. It has been held, quite correctly, that a plea of guilty
in the face of an open and shut
case against an accused person is a
neutral factor.
The
evidence linking the respondent to the crimes was overwhelming. In
addition to the stolen items found at the home of his girlfriend,
there was DNA evidence linking him to the crime scene, pointings-out
made by him, and his positive identification at an identification
parade. There is, moreover, a chasm between regret and remorse.
Many accused persons might well regret their conduct,
but that does
not without more translate to genuine remorse. Remorse is a
gnawing pain of conscience for the plight of another.
Thus genuine
contrition can only come from an appreciation and acknowledgement of
the extent of one's error. Whether the
offender is sincerely
remorseful, and not simply feeling sorry for himself or herself
at having been caught, is a factual
question. It is to the
surrounding actions of the accused, rather than what he says in
court, that one should rather look.
In order for the remorse to
be a valid consideration, the penitence must be sincere and the
accused must take the court fully into
his or her confidence.
Until and unless that happens, the genuineness of the contrition
alleged to exist cannot be determined.
After all, before a court can
find that an accused person is genuinely remorseful, it needs to have
a proper appreciation of, inter
alia: what motivated the accused to
commit the deed; what has since provoked his or her change of heart;
and whether he or
she does indeed have a true appreciation of
the consequences of those actions. There is no indication that any of
this, all of
which was peculiarly within the respondent's knowledge,
was explored in this case.”
[18]
The regional magistrate misdirected himself by not ensuring that
there was sufficient evidence on record before sentence. Sentencing
is a very delicate process and should not be embarked upon without
the necessary evidence required for the purposes of determining
an
appropriate sentence.
[19]
The regional magistrate seems to have followed a tick box approach
with regard to the personal circumstances of the appellant.
There
is no analysis of the other mitigating factors, such as the
circumstances and facts of this particular crime.
The absence
of serious injuries, which is a factor that could arguably be
mitigating, was immediately devalued by reference to
an aggravating
factor without a proper factual foundation. The regional
magistrate said the following about this issue:
“
Ek
neem in ag die feit dat die klaagster in hierdie geval nie ernstige
beserings opgedoen het nie, ek kan my net indink die psigiese
skade
wat sy opgedoen het in hierdie hele proses.”
The
objective fact of no physical injuries was immediately discounted by
the speculative possibility or probability of psychological
injuries.
The prosecutor did not adduce any evidence in relation to the
psychological effect of this crime on the complainant.
The
regional magistrate misdirected himself by not giving proper weight
to the personal circumstances of the appellant and
the circumstances
under which this crime was committed.
[20]
The appellant was 25 years old, unmarried and had two minor children
respectively two years old and one month old. He
passed grade 9
at school. He was gainfully employed at Trompcon Construction
and earned R970 every fortnight. The appellant
admitted 3 previous
convictions. On 29 September 2010 he was convicted of assault
with intent to do grievous bodily harm
and sentenced to 6 months’
imprisonment which was wholly suspended for 5 years on certain
conditions. On 3 October
2011 he was convicted of possession of
dagga and paid a fine of R200. On 4 August 2014 he was
convicted of housebreaking
with intent to steal and theft; he was
sentenced to 12 months’ imprisonment in terms of section
276(1)(h) of the Act.
[21]
There is no evidence as to where the children are and with whom they
are staying. The regional magistrate assumed, without
enquiring
from the appellant, that the appellant was under correctional
supervision when he committed the current offence. The
sentence
on the SAPS69c form was either incorrectly recorded or an incompetent
sentence was imposed on 4 August 2014. The
sentence should
either be 12 months’ imprisonment in terms of section 276(1)(b)
or 12 months’ correctional supervision
in terms of section
276(1)(h). This issue was not clarified.
[22]
There are just too many evidential gaps that have to be filled. The
regional magistrate had insufficient evidential material
to do
justice to the sentencing process. We are in no better
position. Trial courts have the latitude to use their
discretion in imposing an appropriate sentence. The Amendment
Act has limited that discretion but not taken it away. The
discretion is further constrained by established principles, for
example, it must be exercised judicially after considering all
the
relevant facts and circumstances. The court of appeal may
interfere where the discretion is wrongly exercised. In
this
case the regional magistrate exercised his discretion improperly and
unreasonably because he did not have all the facts before
him on
which he could exercise his discretion properly.
S
v P
1989 (1) SA 760
(KPA) at 762E-F.
[23]
In my view the sentence ought to be set aside and the matter remitted
to the trial court so that the prosecutor and the appellant
can put
evidential material before him that would enable him to exercise his
discretion judicially. He may also act in terms of
section 274 (1) of
the Act.
[24]
The magistrate would, when imposing the new sentence, be able to
order that the sentence be antedated to a date not earlier
than 3
March 2016, the original date of sentencing. Section 282 of the
Act provides:
“
Whenever
any sentence of imprisonment, imposed on any person on conviction for
an offence, is set aside on appeal or review and
any sentence of
imprisonment or other sentence of imprisonment is thereafter imposed
on such person in respect of such offence
in place of the sentence of
imprisonment imposed on conviction, or any other offence which is
substituted for that offence on appeal
or review, the sentence which
was later imposed may, if the court imposing it is satisfied that the
person concerned has served
any part of the sentence of imprisonment
imposed on conviction, be antedated by the court to a specified date,
which shall not
be earlier than the date on which the sentence of
imprisonment imposed on conviction was imposed, and thereupon the
sentence which
was later imposed shall be deemed to have been imposed
on the date so specified.”
[25]
Section 282 has been interpreted to allow the trial court to antedate
a sentence when it imposes such sentence after its original
sentence
has been set aside.
S
v Seekoei
[1997] 1 All SA 40
(NC) at 45B to 46B.
S
v P
at 762J to 763A. I align myself with those judgments.
[26]
I accordingly make the following order:
1. The
conviction is confirmed.
2. The
sentence is set aside.
3. The
matter is remitted to the regional magistrate Viljoenskroon to deal
with in accordance with this judgment.
______________
C.J.
MUSI, AJP
I
agree.
______________
C. VAN ZYL, J
On
behalf of Applicant:
Ms.
S. Kruger
Instructed by
Legal Aid SA
BLOEMFONTEIN
On
behalf of Respondent:
Adv. A. Simpson
Instructed by
Director Public
Prosecutions
BLOEMFONTEIN