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[2017] ZAKZPHC 40
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Nyawo v S (AR749/16) [2017] ZAKZPHC 40 (21 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NUMBER: AR 749/16
In
the matter between:
NKOSINATHI
EMMANUEL
NYAWO
Appellant
and
THE
STATE
Respondent
JUDGMENT
Delivered
on 21 September 2017
HIRALALL
AJ: (Koen J concurring)
[1]
The appellant was charged with two counts of robbery with aggravating
circumstances, read with
Section
51(2)(a) of Act 105 of 1997 in the Regional Court. He pleaded not
guilty to both counts. He was convicted on both counts
and sentenced
to 15 years imprisonment, the magistrate taking both counts as one
for the purpose of sentence.
[2]
The appellant now appeals against the sentence only, having been
refused leave by the court a quo to appeal against the convictions.
[3]
Section 51(2)(a)(i)
of the
Criminal Law Amendment Act 105 of 1997
prescribes a minimum sentence of 15 years for robbery with
aggravating circumstances.
Section 51(3)(a)
provides that a lesser
sentence may be imposed if the court is
satisfied that substantial and compelling circumstances exist.
[4]
In the court a quo, the state led the evidence of the two
complainants, and the arresting officer. Mamsie Mthiyane and Zandile
Mthiyane testified that at approximately 20h30 on the night of 17
th
September 2010 whilst they were waiting for their sister near a bus
stop, they observed a ‘cream/white’ car with a
sunroof
pass them slowly. The car stopped some distance away. Two males
alighted and walked in their direction. One of them produced
a knife
and the other a firearm. They robbed both complainants of their
cellphones and fled in the ‘cream/white’ car
which had by
then made a U-turn and passed them again. The two complainants did
not leave the matter there. They obtained transport
and went to
report the matter to their brothers at the Red Dog Tavern. When they
arrived at the Red Dog Tavern, they saw the ‘cream/
white’
vehicle parked outside. When they emerged from the tavern, the car
was gone. They reported the matter to a policeman
and gave him a
description of the car. Sometime later, they were informed that the
car and its driver had been located. They went
to the scene and
identified the car, and the driver, and Mamsie Mthiyane retrieved her
cellphone from the dashboard of the car.
Zandile never recovered her
cellphone. Both complainants identified the appellant as the driver
of the car at the time in question,
and not as one of the people who
had robbed them.
[5]
The policeman testified that he had spotted the car whilst he was
taking a statement from another complainant who had been robbed
by
the same people. He gave chase for some three kilometers but when the
car stopped, its occupants alighted and fled, leaving
the driver, the
appellant in this case, behind.
[6]
The appellant’s defense was one of an alibi. He stated that he
had been at the tavern from 19h00 until 02h00 the next
morning, and
that he had only given the three males a lift when he was leaving for
home at 02h00 the next morning.
[7]
The magistrate rejected the appellant’s version as being false.
[8]
The appeal against the sentence imposed is pursued on two grounds:
[8.1]
That the court a quo over emphasized the seriousness of the offences,
thus misdirecting itself by not striking a judicious
balance on all
the sentencing factors; and
[8.2]
That the ultimate sentence imposed is disproportionate to the
personal circumstances of the appellant, the gravity of the
offence
and the interests of society.
[9]
I have considered the judgment of the court a quo. I made the
following observations:
[9.1] The magistrate made
reference to an SCA case, S v Senatsi and another 2006 (2) SACR, and
then quoted an extract from an unidentified
source (page 114 of the
transcript):
“
The
commission of this offence has become common especially in and around
large cities. [It was a robbery of a motor vehicle but
robbery
generally with firearms and the lot are used]. The innocence (sic)
men and women use the roads with great fear and anxiety.
The brutal
acts of robbers [that is more appropriate in this case] caused
enormous damage to our country and cast a shadow over
the confidence
of the community in policing, prosecution and the administration of
justice. An indication of the seriousness with
which the legislator
viewed this sort of conduct appeared from the fact that a minimum
sentence of 15 years imprisonment for robbery
with aggravating
circumstances was prescribed in
Section 51(1).
”
[9.2] The magistrate went
on to refer to the following in S v Swart
2004 (2) SACR 370
, SCA:
“
[12]
What appears from those cases is that in our law retribution and
deterrence are proper purposes of punishment and they must
be
accorded due weight in any sentence that is imposed. Each of the
elements of punishment is not required to be accorded equal
weight,
but instead proper weight must be accorded to each according to the
circumstances. Serious crimes will usually require
that retribution
and deterrence should come to the fore and that the rehabilitation of
the offender will consequently play a relatively
smaller role.
Moreover, as pointed out in
S
v Malgas
2001
(2) SA 1222
(SCA)
at 1236E, where a court finds that it is not bound to impose a
prescribed sentence ‘the sentence to be imposed in lieu
of the
prescribed sentence should be assessed paying due regard to the bench
mark which the Legislature has provided’.
[9.3]
The magistrate then went on to list the following considerations
which he considered:
·
The
appellant was not merely a victim of circumstances who merely gave
some robbers a lift, as he would have the court believe;
·
He
actively assisted the robbers in the perpetration of the robberies
which were committed in different places on the same night;
·
The
court heard evidence only on one count, whereas there were items
belonging to other people which were found and it was not known
where
they were robbed;
·
The
appellant was the person in control of the ‘operation’ on
the
night
in question;
·
This
was the night the appellant (and his accomplices) were caught and
this only because the complainants were proactive;
·
The
appellant had since the date of his arrest continued to defeat the
ends of justice by protecting those he had been associated
with;
·
As
a result, there were three robbers still at large and the appellant
had assisted them in that regard; and
·
All
of this suggests that the accused is a danger to society and the
sentence as set out by the legislator would indeed be appropriate
…
[10]
It appears from the judgment that the magistrate’s main focus,
if not the sole focus, was retribution and deterrence.
In addition,
whilst he quoted correctly from S v Swart, he seems to have
misinterpreted its import by not attaching sufficient
weight to the
appellant’s personal circumstances.
[11]
In The State v Ndlovu
2007 (1) SACR 539
, a case where the facts are
somewhat similar to the present case, the court stated as follows:
“
[12]
Section
51(2)(a)(i)
of the
Criminal Law Amendment Act 105 of 1997
prescribes
a minimum sentence of 15 years for robbery with aggravating
circumstances.
Section 51(3)
provides that a lesser sentence may be
imposed if the court is satisfied that substantial and compelling
circumstances exist. In
the present case the magistrate considered
that the appellant was only 20 years old. He was adamant, however,
that the levels of
crime in this country were such as to justify
imposing the prescribed minimum sentence of 15 years’
imprisonment. The court
found that there were no substantial and
compelling circumstances to warrant a lesser sentence.”
[13] The
appellant's youth is certainly a factor the magistrate ought to have
considered more seriously. Whilst one appreciates
the magistrate's
frustration at the current levels of crime he did not properly take
into account that in the present case the
degree of violence involved
in the robbery was limited. Furthermore, a significant number of the
articles removed from the optometrist
was recovered. The robbery was
executed in a clumsy and inept manner. The appellant spent
approximately four months in custody
pending the finalisation of the
trial. These are factors not given due weight by the magistrate or by
the court below. In my view,
and considering the dicta in this
court's judgement in S v Malgas
2001 (2) SA 1222
(SCA) (at 1230E-G
and 1231 A-D) these factors cumulatively constitute substantial and
compelling circumstances. We must guard against
imposing uniform
sentences that do not distinguish between the facts of cases and the
personal circumstances of offenders.”
[12]
In the present case, the appellant’s counsel listed the
following considerations which do not appear to have been taken
into
account:
"
·
The
appellant was 25 years old and relatively young, a first time
offender with no previous convictions.
·
The
appellant was supporting two of his minor children aged 5 and 2 years
old at the time of his conviction. The evidence does not
show that he
was a hardened criminal and he can be distinguished from that
category.
·
The
appellant was in gainful employment as a taxi driver.
·
The
appellant was in custody for a year before being sentenced.
·
The
appellant being a first time offender has good prospects of
rehabilitation and his sentence should have reflected a measure
of
mercy.
·
The
evidence presented by the state indicates that he was only the driver
of the motor vehicle while other occupants committed the
crimes.”
[13]
Whilst I do not agree that the appellant ‘was only the driver
of the motor vehicle’, I find that the rest of the
factors
listed above cumulatively constitute substantial and compelling
circumstances which justify a departure from the minimum
sentence of
15 years.
[14]
I have taken into account the fact that the magistrate treated both
counts as one.
[15]
In the circumstances, I find that having regard to the totality of
the evidence, a sentence of 12 years’ imprisonment
is
proportionate to the crime.
1.
The
appeal against sentence is upheld.
2.
The
sentence imposed upon the appellant is set aside. It is substituted
by a sentence of imprisonment for twelve years. Insofar
as it may be
necessary to do so, the sentence so imposed is antedated to 29
th
September 2011, being the date upon which the sentence of 15 years’
imprisonment was imposed.
________________
HIRALALL
AJ
________________
KOEN
J
DATE
OF HEARING: 12 September 2017
DATE
OF JUDGMENT: 21 September 2017
FOR
THE APPELLANT: P Marimuthu, instructed by the
Durban
Justice Centre
FOR
THE RESPONDENT: IP Cooke, instructed by the
Director
of Public Prosecutions,
Pietermaritzburg,
KwaZulu-Natal.