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[2016] ZAFSHC 108
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Nyelele v S (A46/2015) [2016] ZAFSHC 108 (9 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH
COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case
number: A46/2015
In the
matter between:
TELO
GABRIEL
NYELELE
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA,
JP et
RAMPAI, J
HEARD
ON:
9 MAY
2016
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
9 JUNE 2016
[1]
This is an appeal against the sentence only. Following his
conviction, the appellant was sentenced to seven years imprisonment.
He was aggrieved by both. However, he was denied leave to
appeal against his conviction but granted leave to appeal against
his
sentence only. The respondent opposes the appeal.
[2] An incident took
place at Bothaville in 2013 between 18 July and 22 July. The
scene of the crime was in a rural area commonly
known as
Modderfontein Farm. The farm was occupied by Mr Josef Johannes
Schoeman, the complainant who was called as the first
state witness.
He lived on the farm with his wife and his mother in law who stayed
in a separate house.
On
Friday 19 July 2013 they left the farm and travelled to Johannesburg
where they attended a wedding. They returned to the
farm on
Sunday 21 July 2013. They then discovered that their house had
been burgled and their various belongings stolen.
[3] The complainant
reported the incident to the police. The police investigation
led to the arrest of four suspects, namely:
Tebello
Gabriel Nyelele and 3 others.
The 4
suspects were later charged with housebreaking with intention to
steal and theft.
[4]
Their trial started in the Bothaville Regional Court on 25 August
2014. Tebello Gabriel Nyelele, Mpho Joseph Lesenyeho,
Matshidiso Petrus Tiro and Tshakane Michael Ramotse were tried
together as accused 1, accused 2, accused 3 and accused 4
respectively.
At the end of the trial accused 3 and accused 4
were acquitted but accused 2 and accused 1, now the appellant, were
convicted as
charged by Mr AJ Bosch, the regional court magistrate.
[5] On
the same day the guilty two were sentenced. The appellant’s
co-accused, in other words accused 2, was sentenced
to 4 years
imprisonment. The appellant was sentenced to 7 years imprisonment.
His fellow convict, accused 2, was not before
us. Therefore, I
shall say no more about him.
[6] On
29 April 2015 the appellant unsuccessfully applied in the court
a
quo
for leave to appeal against the conviction and the sentence.
Aggrieved by the regional magistrate’s refusal, the appellant
petitioned the judge president in terms of Section 309 Act No 51/1977
on 5 May 2015 for leave to appeal against the conviction
and the
sentence. Kruger J and Bokwa AJ considered his petition.
On 3 November 2015 the petition succeeded in respect
of the sentence
only.
[7]
The main ground of the appellant’s appeal was that the court
a
quo
erred
in imposing a sentence of 7 years imprisonment on him. He
contended that such a custodial term was excessively harsh;
that it was disproportionate to the crime; that it underplayed
the mitigating factors; that it was unbalanced;
and that
it induced a sense of shock. On account of all these, Ms Kruger
submitted, on behalf of the appellant, that the
sentence imposed on
the appellant was thus strikingly inappropriate.
[8]
The respondent disagreed and contended that the court
a
quo
committed no misdirection as the appellant contended. Counsel
for the respondent, Mr Strauss, submitted that the sentence
imposed
on the appellant met all the sentencing demands of the time and that
no appellate interference was justified.
[9]
The first issue in the appeal was whether the sentence of 7 years
imprisonment was disturbingly harsh regard being had to the
number
and age of the appellants’ previous convictions.
[10]
Ms Kruger argued that the trial magistrate misdirected himself by
unduly over-emphasizing the number of the appellants’
previous
convictions and by ignoring their age(s). She pointed out that
of the six relevant previous convictions, the latest
was in 2000.
[11]
Mr Strauss argued that the court
a
quo
did not misdirect itself. He submitted that the appellants’
bad criminal history was but one of the various considerations
that
were taken into account in determining an appropriate sentence.
Although his previous convictions were very old, they
could not be
completely disregarded on the ground that they were all committed
more than ten years earlier.
[12]
The cardinal principle that governs the approach to be adopted in
criminal proceedings is that, in every appeal against sentence,
the
court hearing the appeal should be guided by the principle that
punishment of an offender is pre-eminently a matter for the
discretion of the trial court. That is the one important aspect
of the approach. The court hearing the appeal should
be careful
not to erode the sentencing discretion entrusted to the trial court.
That is the other important aspect of the
approach. The court
hearing the appeal should be mindful that the sentence should only be
altered if the trial court has
not judicially and properly exercised
such discretion. In every appeal the test is whether the
sentence is vitiated by irregularity
or misdirection or disturbing
inappropriateness.
S
v Rabie
1975 (4) SA 855
(A) at 857 D-F
[13]
In
S
v Shapiro
1994 (1) SACR 112
(A) at 119j – 120c Nicholas AJA had this to
say about the limited scope of appellate interference:
“
It
may well be that this court would have imposed on the accused a
heavier sentence than that imposed by the trial judge.
But even
if that be assumed to be the fact, that would not, in itself, justify
interference with the sentence.”
[14] A
court hearing an appeal has no clean slate on which to scribble its
own preferred sentence. Its sentencing powers are
circumscribed
by law. In
S
v Malgas
2001
(1) SACR 469
(A) at 478d-e Marais JA aptly articulated the principle
as follows:
“
[12]
The mental process in which courts engage when considering
questions of sentence depends upon the task at hand.
Subject of
course to any limitations imposed by legislation or binding judicial
precedent, a trial court will consider the particular
circumstances
of the case in the light of the well-known triad of factors relevant
to sentence and impose what it considers to
be a just and appropriate
sentence. 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, an 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.”
By
itself, the mere fact that the court hearing an appeal would, if it
had tried the case as a court of first instance, have imposed
a
lighter sentence than that actually imposed by the trial court, does
not constitute a sound reason for interference on appeal.
[15]
The personal circumstances of the appellant were as follows:
·
He
was born on [……] 1973;
·
He
was 40 years of age at the time he broke the law and 41 at the time
he was punished;
·
He
had one dependent minor child, 12 years of age;
·
He
was the child’s primary caregiver;
·
He
was a widower but precisely when his spouse died did not appear;
·
His
parents as well as his parents-in-law were also deceased;
·
He
was not gainfully employed but he received a disability grant of
R1250 per month from the state;
·
Some
of the property he had stolen from the complainant was recovered.
[16]
The following were aggravating factors:
·
The
value of the property the appellant stole was very high – R100
077
;
·
The
bulk of the stolen property worth about R65 000 was never
recovered and the victims were exponentially impoverished;
·
The
appellant was not a lone ranger in the criminal venture but he
was seemingly a member of a criminal gang;
·
He
had a number of previous convictions;
·
Of
his 8 priors 7 concerned theft and were as such relevant to the crime
of burglary;
·
The
nature, the gravity and the prevalence of burglary in the region were
taken into account;
·
The
crime was certainly planned;
·
He
was still remorseless after his conviction.
[17]
In sentencing the appellant, the regional magistrate, in the first
place, said the following about the appellant’s priors:
“
Dit
is so dat daar ‘n onderskeid is, ‘
n
redelike groot onderskeid
,
in die ouderdomme van die twee beskuldigdes en dan
veral
wat die vorige veroordelings betref
is daar nie minder as agt vorige veroordelings teen beskuldigde
aangeteken nie, waarvan minstens sewe direk relevant tot dit waarvoor
hy vandag gestraf moet word, terwyl daar nie vorige veroordelings
teen beskuldigde 2 aangeteken is nie.”
(my
emphasis)
[18]
In the second place, the regional magistrate commented on the type
and age of the appellant’s previous convictions.
He said:
“
Dit
is wel so dat wanneer daar gekyk word na
die
vorige veroordelings van beskuldigde
dit meestal diefstal was. Daar was ook een vorige huisbraak met
die opset om te steel en diefstal en daar was ook in twee
gevalle
roof gewees, maar dit blyk dan dat die meeste van hierdie
veroordelings redelik lank terug plaasgevind het, tussen 1990
en
2009.”
[19]
In the third place, the regional magistrate commented on the
appellant’s previous punishments and the differentiation
in the
sentences between the two offenders, accused 2 and accused 1, now the
appellant.
“
Beskuldigde
1 het al verskeie kere
verskillende
tipe vonnisse
gekry wat gewissel het van lyfstraf, boetes, selfs waarskuwings, en
dan termyne van gevangenisstraf wat opgeskort was, ander termyne
wat
hy direk moes uitdien van onder andere een jaar en drie jaar
gevangenisstraf en ook by een geleentheid vier jaar gevangenisstraf.
Beskuldige 1 weet dus hoe dit in die gevangenis is, maar nogtans het
dit nie die gewenste uitwerking gehad nie.”
[20]
In
S v Muggel
1998 (2) SACR 414
(C) at 418I –
419I some guidelines were outlined pertaining to consideration of an
offender’s previous convictions.
The decision was in line
with the long recognised principle that the older the previous
conviction the less aggravating effect
it has on the sentence about
to be imposed on the offender in connection with the latest
conviction. I shall revert to these
guidelines.
In
Willem
Reed v The State
(A296/09) ZAFHC [2009] (20.09.2010) at p6: 2-7 Kruger J, with whom
Kahn AJ concurred said:
“
Vir
huisbrake word dikwels drie jaar gevangenisstraf opgelê wat
reeds ‘n swaar vonnis is. Hierdie twee huisbrake
is in
dieselfde jaar gepleeg, in dieselfde woonbuurt. Ses jaar
gevangenisstraf is ‘n swaar straf vir huisbraak selfs
vir ‘n
tweede oortreder..”
The
original sentence of 12 years imprisonment was reduced to a 6 year
period of imprisonment.
[21]
In
S
v Beja
2003 (1) SACR 168
(SE) at 170d-e the court, per Pillay J held:
“
It
is trite that the sentence must always fit the crime and the fact
that the person to be punished has a long list of previous
convictions of a similar nature, while it may be an important factor,
could never serve to extend the period of sentence so that
it is
disproportionate to the seriousness of the crime for which such a
person must be punished.”
The
passage was quoted with approval in In
S
v Stenge
2008 (2) SACR 27
(C) at [19].
[22]
In
S
v Matshiba
2012 (1) SACR 577
(ECG) the accused had been sentenced by the trial
court to an effective term of 62 years imprisonment following his
conviction
in respect of 7 charges. Six of those convictions
concerned 6 counts of housebreaking with intention to steal and theft
-
as in this case. On appeal the sentence was set aside and
replaced with a sentence of 3 years imprisonment in respect of each
of the 6 counts and 1 year in respect of count 7, viz theft. It
was directed that the six sentences in respect of housebreaking
must
run concurrently. Accordingly the appellant had to serve an
effective jail term of 4 years imprisonment.
[23]
On the strength of the aforesaid case law, Ms Kruger submitted that
the sentence of 7 years imprisonment imposed on the appellant,
on
account of his previous convictions, was shockingly inappropriate.
[24]
The appellant has had several brushes with the law in the past.
His criminal record includes 4 convictions of theft,
2 of robbery and
1 of housebreaking. The last of his convictions was on 5 July
2000, almost 13 years before the conviction
with which we were
grappling here. Accordingly the trial magistrate was obliged to
disregard the entire list of the appellants’
previous
convictions seeing that he did no crime for so many years.
S
v Zondi
1995 (1) SACR 18
(A) at 23g-j.
“
In
terms of sec 271A the sentencing court has no discretion. It
cannot take into consideration any previous convictions which
fall
within the purview of the section
S
v Zondi
supra
.”
See
S v Muggel
,
supra
per Ngcobo J as he then was.
The general import of the section is that an offender’s
previous conviction automatically
falls away as a previous
convictions after the lapse of a period of ten years.
[25]
During the course of sentencing the trial magistrate remarked:
“
Dit
is so dat daar
onderskeid
is ‘n redelike groot onderskeid
,
in die onderdomme van die twee beskuldiges en dan
veral
die vorige veroordelings betref is
...”
He
further said:
“
Hoewel
dit dus blyk dat daar die afgelope paar jaar nou nie veroordelings
teen beskuldigde aangeteken is nie,
het
hy nogtans ‘n indrukwekkende lys van veroordelings en moet dit
natuurlik in aanmerking geneem word en lei tot ‘n
onderskeid in
die vonnisse wat hom en beskuldigde 2 opgelê word
.”
[26]
I have extracted those passages from the sentence component of the
judgment to show that the obsolete previous convictions
were unduly
and exceedingly stressed by the regional magistrate. The
appellants’ chapter on previous relevant convictions
was closed
on 5 July 2000. The conviction concerned the crime of theft he
committed on 17 September 1998. Ever since
then he kept a clean
sheet. Almost fourteen years later, on 19 July 2013, he
committed burglary. In my view the trial
court materially erred
on the point of law in re-opening the closed chapter. In
S
v Muggel
supra
,
at 419 g-h Ngcobo J commented:
“
The
tendency of taking everything that appears on the form SAP69 into
consideration, regardless of the passage of time, must be
avoided.
It must also be borne in mind that even a criminal is entitled to ask
that the lid on the distant part should be
kept tightly closed.
S
v Mqwathi
1985 (4) SA 22
(T).”
I
am in respectful agreement.
[27]
In view of the misdirection, we are obliged to interfere with the
sentencing discretion of the regional court. The discretion
was
not properly exercised in a judicial manner. I would, therefore
uphold the appeal on the grounds that obsolete previous
convictions,
that were supposed to be disregarded, were taken into account.
Such previous convictions could not correctly
justify the
disturbingly huge distinction made between the two offenders.
This then in a way disposes of the first issue
in the appeal, albeit
not completely.
[28]
The second issue was whether the trial magistrate’s materially
misdirected himself by sentencing the appellant without
considering
whether the appellant was indeed a primary caregiver to a dependent
minor child on whose best interest a custodial
sentence might have an
adverse impact. To that issue I turn now.
[29]
A similar factual omission by the trial magistrate which was further
perpetuated by the high court appeal judges arose in
S v M
[2007] ZACC 18
;
2008 (3) SA 232
CC. In that case the court went to great
lengths to consider the proper approach incumbent upon a sentencing
court where
the convicted person is the primary caregiver of minor a
child(ren). The paramountcy of the child’s best interest
in
every matter concerning the child is enshrined in sec 28(2) read
with sec 28(1) (b) of the constitution. The section
recognises and reflects the global trend rights, protection and
entitlemends that are specifically identified and accorded to
children.
[30]
The curator in
S
v M
,
supra
,
stressed that in terms of the aforesaid constitutional provisions
every child has a right to family or parental care and that
when
removed from the family environment, a child has a right to
appropriate alternative care. He contended, and the court
accepted, that taken together, those constitutional provisions impose
four responsibilities on a sentencing court when a custodial
sentence
for a primary caregiver is in issue. Those responsibilities
were identified and listed as:
“
[32]
The curator emphasised that s 28(2) of the Constitution should be
read with s 28(1)(b) which provides that
every child has a right to
family or parental care, or appropriate alternative care when removed
from the family environment.
Taken together, he contended,
these provisions impose four responsibilities on a sentencing court
when a custodial sentence for
a primary caregiver is in issue.
They are:
·
To
establish whether there will be an impact on a child.
·
To
consider independently the child’s best interests.
·
To
attach appropriate weight to the child’s best interests.
·
To
ensure that the child will be taken care of if the primary caregiver
is sent to prison.”
S
v M
[2007] ZACC 18
;
2008
(3) SA 232
(CC) par [32] on p251.
[31]
The court examined the facts in
S
v M
,
supra
and came to the conclusion that those practical modes designed to
give children’s paramount interest special protection during
the sentencing process of their primary caregiver were not observed
by the regional court. The court considered the omission,
to
independently have special regard for the paramount interests of the
children apart from their convicted caregiver, to be a
sentencing
misdirection that warranted appellate interefence.
[32]
In the instant matter, there was neither reference made to
S
v M
,
supra
nor to the applicable constitutional provisions of Section 28.
It was common cause that the special protective duties were
not
observed and that the appellant was sentenced without sufficiently
independent and informed attention given to adverse impact
the
sentence might have on the minor child. Sentencing a primary
caregiver is now a new ball game altogether. It is
no longer
business as usual.
[33]
As regards the underlying philosophical purpose of the decision the
distinguished judge, Sachs J, writing for the majority
of the court,
said:
“
[35]
Thus, it is not the sentencing of the primary caregiver in and of
itself that threatens to violate
the interests of the children.
It is the imposition of the sentence without paying appropriate
attention to the need to have
special regard for the children’s
interests that threatens to do so. The purpose of emphasising
the duty of the sentencing
court to acknowledge the interest of the
children, then, is not to permit errant parents unreasonably to avoid
appropriate punishment.
Rather, it is to protect the innocent
children as much as is reasonably possible in the circumstances from
avoidable harm.”
S
v M
[2007] ZACC 18
;
2008
(3) SA 232
(CC) par [35] on p252.
[34]
I am persuaded that the second issue must also be decided in favour
of the appellant. In view of this conclusion, the
sentence
cannot be allowed to stand. The appropriateness or otherwise
thereof will have to be reconsidered in due course
once special
regard has been had to the independent circumstances of the dependent
minor child. Only then will the court
be able to make an
informed decision. There is an obvious potential conflict
between the interest of the minor child and
the interest of the
victim. The broader interest of society dictates that a fair
balance be struck between the child’s
right to family care and
the victim’s right to protection from housebreakers.
[35]
Some reliable social welfare report will provide helpful information
for resolving that possible conflict of interest the resolution
of
which will pave the way for the determination of an appropriate
sentence. However, we must be mindful that barring the
child’s
special regard, the gravity of the crime calls for a custodial
sentence.
[36]
We are in the same unfavourable position as the regional court.
We hardly have one report concerning the minor child
whose special
interests are central to the appeal before us. It being the
case, I am
inclined
to remit
the
matter
to the regional court to hold the special enquiry in accordance with
the authoritative decision of
S
v M
,
supra
and, thereafter, to consider the question of sentence afresh.
[37]
The following order is made:
37.1
The appeal is upheld;
37.2
The sentence imposed by the trial court is set aside and the matter
is remitted to the trial
court to impose sentence afresh after
obtaining the material evidence affecting the children in accordance
with what is set out
in
S
v The State
,
Centre for Child Law as Amicus Curiae (CCT 63/10)
[2011] ZACC 7
(29
March 2011) and
S
v M
(Centre for Child Law as Amicus Curiae
[2007] ZACC 18
;
2007 (2) SACR 539
CC and this
judgment.
_____________
M.H.
RAMPAI, J
I
concur
______________
MOLEMELA,
JP
On
behalf of appellant: Ms
Kruger
Instructed
by:
Bloemfontein
Justice Centre
Bloemfontein
On
behalf of respondent: Mr M Strauss
Instructed
by:
Director
of Public Prosecutions
Bloemfontein
/PK