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2017
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[2017] ZAFSHC 165
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Makole v S (A226/2016) [2017] ZAFSHC 165 (31 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A226/2016
In
the Appeal between:
TSEDISO
DANIëL
MAKOLE
Appellant
and
THE
STATE
Respondent
CORAM:
VAN ZYL, J
et
PIKE, AJ
HEARD
ON:
31 JULY 2017
JUDGMENT
BY:
PIKE,
AJ
DELIVERED
ON:
31
AUGUST 2017
[1]
The appellant was charged in the regional court at Odendaalsrus on 1
count of robbery with aggravating circumstances.
[2]
He pleaded not guilty but was subsequently found guilty, as charged,
on 5 February 2014, and was sentenced to 15 years imprisonment,
being
the prescribed minimum sentence in terms of the provisions of section
51(2)(a)(i) of the Criminal Law Amendment Act 105 of
1997 (“the
Act”).
[3]
An application for leave to appeal against the sentence was granted
by Mr Bosch, the presiding officer, as the magistrate Mr
Human, who
heard the case, has since retired.
[4]
The court a quo convicted the appellant on the following facts:
Mr Rabale, the complainant, testified that on the evening
of 23
November 2012 he was on his way home from work when he met the
appellant, whom he knew from before the incident, and who
asked for
R2, which he refused.
[5]
The complainant went to Ramahau Tavern, bought two beers, drank one
and put one in his bag. On his way home two young
men ran from
behind passed him, turned around and approached him. Three men
grabbed him from behind and whilst threatening
him with a knife, took
his wallet, cellular phone and bag.
[6]
As the complainant turned around, he identified the appellant as one
of the accomplices and informed him that he will tell of
the robbery.
As a result of this the appellant instructed his accomplices to stab
the complainant to prevent him from identifying
them as the
accomplices. The accused sustained four wounds which were as a
result of him being stabbed in the upper right
arm twice, leaving
both entry and exist wounds.
[7]
The complainant testified that he knew three of the men and their
parents.
[8]
The appellant denied the totality of the events and testified that he
spent the whole day at Julo’s Tavern, playing pool
and left at
21:00.
[9]
The appellant confirmed that he knew the complainant and that his
father worked with the complainant.
[10]
The court a quo approached the evidence of the complainant with the
required caution and found that the appellant’s version
is to
be rejected as false, in my view correctly so.
[11]
In imposing sentence the trial court had regard to the provisions of
the Act regarding minimum sentences to be imposed in the
absence of
substantial and compelling circumstances. The trial court
considered the personal circumstances of the appellant
in that he is
32 years old, he is unemployed, unmarried and does not have
children. He resided with his parents, has matric
and was busy
looking for work. The accused is a first offender.
[12]
The trial court then considered the aggravating factors. The
court decided that aggravating factors are the fact that
five young
men were involved, which constituted to gang violence, and the fact
that the appellant gave the instruction that the
complainant should
be stabbed.
[13]
As a result the trial court found that no substantial and compelling
circumstances exist which justify a departure from the
imposition of
the prescribed minimum sentence.
[14]
Mr Dreyer, who appeared on behalf of the appellant, submitted that
the sentence imposed by the magistrate is in the circumstance
shockingly harsh and inappropriate. It was also the contention
of mr Dreyer that the magistrate erred in underemphasizing
the
personal circumstances of the appellant, whilst overemphasized the
interest of the community. Therefor his contention was that
the
magistrate erred in finding that there were no substantial and
compelling circumstances in order for the court to deviate from
the
requisite minimum sentence.
[15]
Counsel for the State, mr Botha, submitted that there are no merits
in the appeal, in that the court did take the personal
circumstances
of the appellant into account in determining whether substantial and
compelling circumstances exist. Mr Botha
emphasized the fact
that the appellant instructed his accomplices to stab the
complainant, who is an old man. It was also the contention
of mr
Botha that the appellant does not have any remorse.
[16]
The substantial and compelling circumstances relate to offences that
fall within the provisions of the Act. A court applying
the
provisions of section 51 must consider the existence or not of
substantial and compelling circumstances before passing sentence.
If these circumstances exist the court must record them. If the
court finds that none exist it must be clear from the record
that the
court did in fact consider them and dealt with the issue before
coming to a conclusion.
[17]
Before I consider whether substantial and compelling circumstances
exist in this particular matter it is necessary to mention
that the
principle that applies with respect to an appeal against sentence is
well-established. It is trite that sentencing
is a matter
pre-eminently within the discretion of the trial court.
The
trial court considers what a fair and appropriate sentence should be.
A
court of appeal will interfere with the exercise of such discretion
only on limited grounds.
[18]
The test in deciding whether substantial and compelling circumstances
exist was stated in
S v Malgas
2001 (1) SACR
469
SCA at para 12:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, and appellate Court is of course entitled to
consider the question of sentence afresh. In doing so,
it assesses
sentence as if it were a court of first instance and the sentence
imposed by the trial court has no relevance. As it
is said, an
appellate Court is at large. However, even in the absence of material
misdirection, an appellate court may yet be justified
in interfering
with the sentence imposed by the trial court. It may do so when the
disparity between the sentence of the trial
court and the sentence
which the appellate Court would have imposed had it been the trial
court is so marked that it can properly
be described as ‘shocking’,
‘startling’ or ‘disturbingly inappropriate’.”
[19]
If the sentencing court on consideration of the circumstances is
satisfied that they render the prescribed sentence unjust
in that it
would be disproportionate to the crime, the criminal and the needs of
society so that an injustice would be done by
imposing that sentence,
it is entitled to impose a lesser sentence.
[20]
In
S
v Matyityi
2011
1 SACR 40
SCA
the
SCA clarifies that
Malgas
clearly
establishes that the sentencing court must independently apply its
mind to the question of whether the prescribed sentence
is
proportionate to the crime. If not, substantial and compelling
circumstances as contemplated in section 51(3)(a) exist,
and the
court may not impose the prescribed sentence.
[21]
When imposing sentence a court must ordinarily have regard to the
fact that the imposition of sentence is principally a matter
of
judicial discretion save where the legislature has decreed otherwise.
This then requires that the sentencing court should have
regard to,
inter alia, the peculiar facts of each case, the crime and the
personal circumstances of the offender. “What has
to be
considered is the triad consisting of the crime, the offender and the
interests of society.” (See
S v Zinn
1969
(2) SA 537
(A) at 540G-H).
[22]
In my view the court a quo erred in viewing the mitigation factors in
isolation where the combined impact is considerable.
The
circumstances need not be exceptional, but should ultimately,
cumulatively constitute weighty reasons for justifying a departure
from the imposition of the prescribed minimum sentence.
[23] In the present
matter I find that the following mitigating factors exist:
1.
The
appellant is a first offender.
2.
The
appellant had no dangerous weapons on him.
3.
The
appellant’s personal circumstances are also favourable:
He
is unmarried, 32 years old, has no dependents and has matric. The
appellant performed “piece” jobs by installing
roof tiles
on houses.
4.
The
possibility for rehabilitation cannot be excluded
5.
The
circumstances in this matter is not of the worst degree which might
be found during robbery with aggravating circumstances.
[24]
The abovementioned circumstances, cumulatively regarded, satisfy me
that a sentence of 15 years imprisonment is unjust.
The
circumstances, therefor, qualify as substantial and compelling
circumstances within the meaning of section 51(3)(a) of the
Act.
[25]
The court a quo therefore erred in finding that there are not
substantial and compelling circumstances which justify a departure
from the prescribed minimum sentence.
[26]
We are consequently entitled and compelled to interfere with the
sentence imposed.
[27] In the result the
following order is made:
1.
The appeal
against the sentence is upheld.
2.
The
sentence imposed by the court a quo is set aside and substituted with
a sentence of 10 years imprisonment, antedated to 5 February
2014.
___________
EA
PIKE, AJ
I
concur:
____________
C
VAN ZYL, J
On
behalf of appellant:
Adv NJG Dreyer
Instructed
by:
Jacobs Attorneys
Bloemfontein
On
behalf of respondent: Adv JP du P Botha
Instructed
by:
Office of the Director: Public Prosecutions
Bloemfontein