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[2017] ZAFSHC 71
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Rantonono v S (A224/2016) [2017] ZAFSHC 71 (18 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A224/2016
In
the appeal between:-
L
M
RANTONONO
Appellant
and
THE
STATE
Respondent
CORAM:
MUSI,
AJP
et
MBHELE, J
HEARD
ON:
20
MARCH
2017
JUDGMENT
BY:
MUSl ,
AJP
DELIVERED
ON:
18
MAY
2017
[1]
The appellant was convicted of robbery with aggravating
circumstances, by the regional magistrate Kroonstad, and sentenced to
15 years' imprisonment. He unsuccessfully applied
for leave to appeal in the regional court. Leave to appeal
against
the sentence only was however granted by this court.
[2]
The factual background of the matter is as follows. On 23 September
2012, at approximately 01H00, the complainant was hiking,
from
Kroonstad Free State, to his workplace at the Air Force Base
Hoedspruit, Limpopo Province. Whilst he was walking in Reitz
Street,
Kroonstad, towards the N1 he was followed by two men. The one man
stood in front of him and grabbed him whilst the other
grabbed him
from behind. The one that was at his back hit him with a bottle on
the head as a result of which he fell. He had a
sling bag over his
shoulder containing his clothing. The two men grabbed the bag from
his shoulder. He stood up and ran away.
[3]
He approached people standing in Reitz Street who informed him that
they saw what happened and they called the police. The police
arrived
at the scene. He got into the police vehicle and they
drove in the direction in which those people ran. In
Botha Street he
saw the 2 people walking and one was carrying his bag. The police
stopped next to them and they started running.
The police chased
them, caught the appellant, who was still in possession of his bag,
and brought him back to the police van. He
identified the appellant
as one of the persons who accosted him and he also identified his bag
and its contents. He however noticed
that 2 pairs of shoes were
missing from the bag. The total value of his goods was R4 550. The
value of the shoes was R1 550. He
sustained an open wound at the back
of his head which was bleeding but he did not receive any medical
attention.
[4]
The appellant's version which was put to the complainant was, in a
nutshell, that he and his friend were drinking at a place
called
Night School. His friend informed him that someone took his bag. The
friend requested the appellant to accompany him to
retrieve his bag.
He accompanied his friend and they took the bag from the complainant.
He was however under the impression that
the bag belonged to his
friend. The appellant did not testify under oath neither did he
call any witnesses.
[5]
The regional magistrate convicted him of robbery with aggravating
circumstances. He found that there were no substantial and
compelling
circumstances that necessitated a deviation from the minimum sentence
and imposed the minimum sentence of 15 years'
imprisonment.
[6]
Mr van Rensburg on behalf of the appellant contended, before us, that
the regional magistrate erred in not finding that there
were
substantial and compelling circumstances. He submitted that:
a)
the sentence is unjust because it is disproportionate to the offence
committed;
b)
the regional magistrate over emphasized the seriousness of the
offence and the interests of society at
the expense of the personal
circumstances of the appellant;
c)
the cumulative effect of the personal circumstances of the appellant
qualifies to be classified as substantial
and compelling
circumstances.
[7]
The appellant was 34 years old, married and had two children. He was
employed at the Department of Public Works and earned R8000
per
month. He was a shop steward for NEHAWU. He passed grade 12 and was a
first offender. His wife was employed and earned R1600
per month. He
also received an income from tenders to do work for the Department of
Public Works.
[8]
Robbery with aggravating circumstances is a very serious offence. It
is usually committed with premeditation and planning. The
victim is
subjected to violence or threats of violence in order to subjugate
him or her and thereby making the taking of his or
her property easy.
Many people are scared to walk in the streets of our cities, towns,
townships and suburbs lest they become targets
of robbers and
thieves.
[9]
The regional magistrate considered all the relevant factors before
reaching the conclusion that there are no substantial and
compelling
circumstances present. I pause to mention some of the aspects that
were taken into consideration and the regional
magistrate's
reasoning in respect of those aspects. He considered that most of the
complainant's property was recovered, he however
pointed out that it
was not covered due to the appellant's cooperation but rather because
the police arrested him soon after the
crime was committed. He also
pointed out that the appellant wanted to create the impression that
he was under the influence of
alcohol when the crime was committed
but the arresting officer, who testified during the trial, did not
notice that the appellant
was under the influence of alcohol. In any
event if one has regard to the appellant's actions on the day it is
clear that even
if one finds that he consumed alcohol, the alcohol
did not play a major part in directing his actions. The manner in
which they
accosted the complainant, one at the front one at the
back, then ran away from the scene and when the police stopped next
to them
they both ran away. At the police station, after his arrest,
he said to the complainant that he was sorry but it was not him.
[10]
The regional magistrate considered the fact that the appellant was a
first offender. He however pointed out that Act 105 of
1997 as
amended specifically states that 15 years' imprisonment is the
minimum sentence that should be imposed after a first offender
has
been convicted of robbery with aggravating circumstances where there
are no substantial and compelling circumstances present.
[11]
The regional magistrate correctly stated that although the
complainant did not sustain a serious injury
it
was
because he did not offer any sustained resistance and that
hitting him with the bottle on his head was totally unnecessary in
the
present circumstances.
[12]
It was argued before the regional magistrate that the
appellant earned a decent salary. He opined that this aspect actually
counts
against the appellant because the appellant was gainfully
employed, earned a decent salary and could properly look after his
family
but still got himself involved in criminality. He also
correctly found that this crime was not committed on the spur of the
moment.
It was therefore planned.
[13]
Mr van Rensburg contended that the appellant showed remorse. I
disagree. One does not show remorse by trying to mislead a court
with
a fanciful version which is clearly false. An accused who tries to
mislead a court should not claim the benefit of leniency
based on
remorse. Although the appellant was arrested a few minutes after the
robbery whilst in possession of the complainant's
property, he pleaded
not
guilty and did not take the court fully into his confidence. He did
not show genuine remorse. In
S
v
Matyityi
2011 (1) SACR 40
(SCA) at para [13] the following was said about
genuine remorse:
"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 aUa,
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."
[14]
The regional magistrate expressed sympathy towards the appellant's
wife and children but found that, that fact is not a substantial
and
compelling circumstance necessitating a deviation from the minimum
sentence. After considering all the personal and surrounding
circumstances the regional magistrate found that there were no
substantial and compelling circumstances which necessitates a
deviation
from the minimum sentence.
[15]
I cannot find any fault with the reasoning and finding of the
regional magistrate. I therefore disagree with the contention
that
the regional magistrate erred by overemphasizing the seriousness of
the offence and the interest of society. I am also of
the view that
the sentence of 15 years' imprisonment is not disproportionate to the
offence committed. It is a sentence which the
Legislature ordained as
an appropriate sentence for robbery with aggravating circumstances. I
am also satisfied that the regional
magistrate considered the
cumulative effect of the personal circumstances of the appellant and
the impact of the sentence on his
family.
[16]
I am not convinced that the regional magistrate misdirected himself
or exercised his sentence discretion improperly. There
is no reason
why we should interfere with the sentence imposed by the regional
magistrate. The appeal has to fail.
[17]
I
accordingly made
the following order:
The
appeal against the sentence is dismissed.
______________
C.J.
MUSI, AJP
I
agree.
______________
N.M.
MBHELE, J
On
behalf of Applicant:
Adv. T.B. van Rensburg
Instructed by
Jacques Groenewald Prokureurs
KROONSTAD
On
behalf of Respondent:
Adv.
R.
Hoffman
Instructed
by
Director Public Prosecutions
BLOEMFONTEIN