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[2016] ZAFSHC 56
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Nkuna v S (A248/2010) [2016] ZAFSHC 56 (31 March 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
number: A248/2010
In
the matter between:
FELIX
NKUNA
Applicant
and
THE
STATE
Respondent
CORAM:
MOLOI,
J et CHESIWE, AJ
HEARD
ON:
8 FEBRUARY 2016
JUDGMENT
BY:
CHESIWE, AJ
DELIVERED
ON:
31
MARCH 2015
[1]
The appellant was convicted on 11 counts of housebreaking with intent
to steal and theft, one count of housebreaking with intent
to rob and
robbery with aggravating circumstance and two counts of housebreaking
with intent to rob and robbery. He was sentenced
to four (4)
years
im
prisonment
on each count of housebreaking with intent to steal and theft;
eight (8) years imprisonment on each count of housebreaking
with
intent to rob and robbery and fifteen (15) years on the count of
housebreaking with intent to rob and robbery with aggravating
circumstances. The trial court had ordered that sentences on
counts 1, 2, 5, 7, 9, 10, 11, 13 to 14 (Housebreaking with intent
to
Steal and Theft) and count 3 (Housebreaking with intent to commit a
crime unknown to the prosecutor); count 6 (Housebreaking
with
intent to Steal and Attempted Theft); count 8 and 12
(Housebreaking with intent to Rob and Robbery) run concurrently
and
the sentence in count 4 (Housebreaking with intent to Rob and Robbery
with aggravating circumstances) not to run concurrently
with the
other sentences meaning the appellant was to serve an effective
period of thirty five (35) years imprisonment. He
appeals
against the sentences imposed, leave to appeal having being granted
by this court on petition.
[2]
The grounds of appeal are that the trial court erred in
over-emphasizing the interests of society and the seriousness of the
offences and un-emphasized the personal circumstances of the
appellant; that the sentences are shockingly harsh and inappropriate;
that the trial court showed no mercy to the appellant who pleaded
guilty to all the charges and was remorseful and that the period
of
four (4) months spent in custody pending the trial was not taken into
account.
[3]
The respondent conceded that the appeal against the appellant’s
sentence should succeed. Mr. Reyneke, on behalf
of the
appellant in the heads of argument and oral argument submitted that
all factors in this case and the personal circumstances
of the
appellant, for the fact that he pleaded guilty to all charges,
cumulatively amounted to substantial and compelling circumstances
which justifies the court to deviate from the imposition of the
prescribed minimum sentence.
[4]
The appellant in this matter pleaded guilty in terms of section 112
(2) of the Criminal Procedure Act 105 of 1997. The
appellant
was at all times legally represented. The appellants’
written statement in terms of section 112(2) of the
Criminal
Procedure Act 51/1977, setting out the admissions of all the
offences, and the factual basis supporting his guilty plea,
was read
into the record and was handed in as exhibit A. As set out in
S
v Jansen
1999 (2) SACR 370
I – 371 E (C), and reiterated in
S
v Thole
2012 (2) SACR 306
(FB) at para 8:
“…
where
an accused pleads guilty and hands in a written statement in
terms of s 112(2), detailing the facts on which his plea
is premised,
and the prosecution accepts the plea, the plea so explained and
accepted constitutes the essential factual matrix
on the strength of
which sentence should be considered and imposed.”
[5]
The appellant showed remorse in his conduct by pleading guilty and
requesting from the prosecutor that he wished to ask for
forgiveness
from one of the victims. This can be seen in the prosecutor’s
address in court at page 24 where he said:
“
Klaagster
op Klag 12 het met beskuldige gepraat, Albei was op ‘n stadium
in trane en het beskuldigde gesê dat hy jammer
is oor dit wat
hy gedoen het, en het Klaagster gesê dat hy hom vergewe.”
The
prosecutor takes it further and said:
“
Dit
is so beskuldigde het gewys dat dit is nie net krokodilletrane nie,
hy huil rêrig met die Klaagster.”
[6]
In
S
v Brand
1998 (1) SACR 296
(CPD) at page 304 where an accused pleaded guilty,
the court was of the view that:
“
If
an accused shows genuine remorse, punishment will be accommodating
especially when accused has taken steps to translate his/her
remorse
into action.”
This
is noted in the remarks of the prosecutor on how the appellant and
the complainant embraced each other and cried together.
[7]
The prescribed minimum sentence in terms of section 51 of the
Minimum-Sentence Act, Act 105 of 1997 for robbery with aggravating
circumstances is 15 years. The appellant in count 4 committed
house breaking with intent to rob and robbery with aggravating
circumstances. Amongst the stolen goods was a Toyota Fortuner
with Registration number [D....] with an estimated value of
R260,
000.00. The court takes cognisance of such crimes and is aware
that these crimes are prevalent in the Welkom area.
[8]
Mr. Reyneke for the appellant and Adv. Moroka for the respondent
agreed that the effective sentence of 35 years was too severe
a
punishment for the appellant and that it needed to be reconsidered.
In my view the concession by the respondent was correctly
made.
[9]
The determination of an appropriate sentence for an accused person
falls primarily within the discretion of the trial court.
The
appeal court would not easily interfere with the exercise with such a
discretion, merely because the appeal court would have
exercised a
different discretion, if it had been sitting as the court of first
instance [
S
v Malgas
2001 (1) SACR 469
SCA at 478 D-E;
S
v Botha
1998 (2) 206 (SCA);
S
v Grobler
2015 (2) SACR 210
(SCA) para 5]. It follows that this court is
not at large to interfere with the sentence imposed by the trial
court.
However, a court with appeal jurisdiction is entitled to
interfere with a sentence imposed by the trial court in a case where
the
sentence is disturbingly inappropriate or is totally out of
proportion with the gravity of the offence or is based on a
misdirection
of a nature that shows that the trial court did not
exercise its discretion reasonably or properly [
S
v Salzwedel and Others
1999 (2) SACR 586
(SCA) at 591 par (10) and
S
v Pillay
1977 (4) SA 531
(AD) at 535 E-G].
[10]
In sentencing the appellant, the court
a
quo
took into account the following aggravating factors: That the
entire episode was a criminal enterprise orchestrated by a
criminal
gang of which appellant was an active member; that the offences
were planned; the appellant and his friends
identified premises
to break into; the amounts involved in these cases are
relatively high. The complainant in count
4 was an old woman of
65 years and was threatened with weapons and assaulted.
[11]
The court
a
quo
also took into account the following mitigating factors in sentencing
the appellant that: The appellant was 20 years when
the crimes
were committed; the appellant pleaded guilty to all the charges
against him; that he showed remorse for
his actions, by crying
with the complainant in count 12. See
S
v Matyityi
2011 (1) SACR 40
(SCA) para 13:
“
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.”
[12]
Adv. Moroka in the Heads of Argument submitted that the court
a
quo
erred in finding the appellant’s previous
transgressions amounted to previous conviction. The appellant
was previously
found guilty on house breaking with intent to steal
and theft. The appellant was sentenced to (3) three years
direct imprisonment.
Adv.
Moroka pointed out that the appellant was convicted on the 29 August
2010 and the latter conviction took place on 20
July 2011. These
convictions should not have been considered and thus the appellant
was supposed to have been treated as a first
offender for purposes of
sentencing on the current charges.
The
appellant was incarcerated since 20 July 2011 which means he had
spent 4 months incarcerated. The court
a
quo
did not attach sufficient weight to the period of the appellants
pre-sentencing incarceration. In
S
v Stephen and Another
1994 (2) SACR 163
(W) at 168 F-G.
“
Imprisonment
whilst awaiting trial is the equivalent of a sentence of twice that
length …”
It
would therefore be unjust if such a period was not taken into account
in any custodial sentence that is imposed on an accused.
(
S
v Vilakazi
2009 (1) SACR 552
(SCA) para [60].)
[13]
In this case I am persuaded that the court
a quo
erred by
failing to properly or adequately take the personal circumstances of
the appellant into consideration. The court
over-emphasised the
magnitude of the crime, by disregarding factors which should have
been taken into account:
S v Nkawu
2009 (2) SACR 402
para 15;
Madau v S
2013 (2) SACR 292
(SCA).
The misdirection was material in that it vitiated the sentencing
discretion entrusted to the court of the first instance.
However, a court with appeal jurisdiction is entitled to interfere
with a sentence imposed by the trial court in a case where the
sentence is disturbingly inappropriate or is totally out of
proportion to the gravity of the offence or the trial court did not
exercise its discretion reasonably or properly.
In
S
v Malgas
2001
(1) SACR 469
(SCA) at 478-I – 479-A:
“
The
tests for interference with a sentence on appeal were evolved in
order to avoid subverting basic principles that are fundamental
in
our Law of Criminal Procedure, namely that the imposition of sentence
is the prerogative of the trial court for good reason,
and that is
not for appellate courts to interfere with that exercise of
discretion, unless it is
convincingly
shown that it has not been properly exercised …”
[14]
In my view a reduced sentence would strike a proper balance and show
fairness of justice towards the appellant. One must
always
remember that the object of sentencing is to serve public interests
and not to satisfy public opinion
S
v Mhlakaza and Another
1997
(1) SACR 515
SCA at 518 E-F per Harms JA.
[15]
Accordingly, I would make the following order.
1.
The
appeal against sentence succeeds.
2.
The
sentence imposed is set aside and replaced with the
following
order:
2.1
The sentences imposed are ordered to run concurrently with the result
that the appellant shall serve an effective
period of 15 years
imprisonment.
2.2
The aforesaid sentences shall be deemed to have been imposed on 29
July 2011.
______________
S.
CHESIWE, AJ
I
concur
____________
K.J.
MOLOI, J
On
behalf of applicant: Mr. J.D. Reyneke
Instructed
by:
Bloemfontein
Justice Centre
Bloemfontein
On
behalf of respondent: Adv. MMM. Moroka
Instructed
by:
Director
of Public Prosecution
Bloemfontein
/PC