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2016
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[2016] ZAFSHC 189
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Matthys v S (A149/2016) [2016] ZAFSHC 189 (3 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A149/2016
In
the matter between:
MZWANDILE
SMOKO
MATTHYS
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE,
J et MOLITSOANE, AJ
HEARD
ON:
17 OCTOBER 2016
JUDGMENT
BY:
MOLITSOANE, AJ
DELIVERED
ON:
3 NOVEMBER 2016
[1]
The appellant herein was convicted and was sentenced on the 14
November 2014 by the Regional
C
ourt
at
Welkom on the following charges
:
-
One
count of murder
;
-
One
count of assault with intent to cause grievous bodily harm
;
-
One
count of robbery
;
-
Three
counts of robbery with aggravating circumstances.
[2]
He was sentenced to an effective imprisonment term of 20 years by the
court
a
quo
,
he having been sentenced as follows:
-
On
a count of murder – 12 years imprisonment.
-
On
a count of assault with intent to cause grievous bodily harm - 6
months imprisonment which was suspended in whole for a period
of five
years on certain conditions.
-
On
a count of robbery he was sentenced to seven years imprisonment.
-
The
three counts of robbery where aggravating circumstances were present
were taken together for the purpose of sentence and he
was sentenced
to 10 years imprisonment.
[3]
The court further ordered that the sentence in count 5 should run
concurrently with the sentence in count 1 and it further ordered
that
the two years of the sentences in counts 6, 7 and 8 should
run
concurrently with the sentence on count 2.
[4]
The appellant felt aggrieved by the sentences imposed and
has
launched
these appeal proceedings.
[5]
It is trite law that the imposition of a sentence remains the domain
of the trial court and this involves the exercise of discretion
by
that sentencing court. A court exercising appellate
jurisdiction is not free to interfere with the exercise
of that
discretion unless it is tainted by a material misdirection or the
sentence is so disproportionate to the crime, the personal
circumstances of the appellant and the interest of society. In the
case of
S
v Jiminez
2
003(1)
SACR 507 at 512 the court said:
“
However,
even where a sentence does not seem shockingly inappropriate, a court
on appeal is entitled to interfere or at least to
consider the
sentence afresh, if there has been a material misdirection in the
exercise of the sentencing discretion”
[6]
It
is so
that
a mere misdirection is not by itself sufficient to entitle a court of
appeal to interfere with a sentence imposed by a trial
court.
[7]
In the matter of
S
v Pillay
1997 (4) SA 531
(A) at 531 the court said the following:
“
it
must be of such a nature, degree or seriousness that it shows,
directly or inferentially, that the Court did not exercise its
discretion at all or exercised it improperly or unreasonably. Such
misdirection is usually and conveniently termed one that vitiates
the
Court's decision on sentence.”
[8]
Perusal of the record of appeal indicates that the appellant himself
drafted the notice of appeal but having regard to the application
for
leave to appeal as well as the notice of appeal itself, it appears
that the main reason for the disgruntlement is that the
sentences
were shockingly inappropriate in that the court
a
quo
failed to take the following into account:
-
the
age of the appellant
-
the
fact that the appellant was a first offender
-
the
fact that the appellant could be rehabilitated
-
the
period the appellant spent in custody awaiting trial.
[9]
Section 51(2)(b) of the Criminal Law Amendment Act 105 of 1997 (the
Act) provides as follows:
“
Notwithstanding
any other laws but subject to subsection (3) and (6) a regional court
or a High Court shall sentence a person who
has been convicted of an
offence referred to in Part II of schedule 2, in the case of a first
offender to imprisonment for a period
not less than 15 years …”
[10]
The court is obliged to deviate from imposing a minimum sentence of
15 y
ears
imprisonment if the court is satisfied that substantial and
compelling circumstances exist which justifies the imposition of
a
lesser sentence than the sentence prescribed.
[11]
At the onset, it must be noted that section 51(3) (a) of the Act
obliges the court where it found that substantial and compelling
circumstances are present, to “enter those circumstances in the
record of the proceedings, and after that it must impose
such a
lesser
sentence
as
it
deems fit”.
[12]
The court in this case did not record or enter the substantial and
compelling circumstances it found to be present on record,
and
consequently it is difficult to discern from the record which factors
the court
a
quo
took into consideration in order to come to a conclusion that such
substantial and compelling circumstances are present in this
case.
[13]
The question of what is meant by substantial and compelling
circumstances was discussed in the matter of
Patrick
Clive Bailay v The State
,
case 454/2011 where the court said the following:
“
The
most difficult question to answer is always: what are
substantial and compelling circumstances: the term is so
elastic that it can accommodate even the ordinary mitigating
circumstances. All I am prepared to say is that it involves a
value judgment on the part of the sentencing court. I have, however,
found the following definitions in
S
v Malgas
to be both illuminating and helpful. The greater the sense of
unease a court feels about the imposition of a prescribed sentence,
the greater anxiety will be that it may be perpetrating an
injustice. Once a court reaches the point where unease has
hastened
into a conviction that an injustice will be done, that can
only be because it is satisfied that the circumstances of the
particular case render the prescribed sentence unjust, or as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If it is the result of a
consideration of circumstances the court is entitled to characterise
them as substantial and compelling and such as to justify the
imposition of a lesser sentence.”
[14]
The
court a quo has set out in detail the factors both in mitigation
and
aggravation it took into consideration in order to come to the
sentences it imposed.
[15]
Appellant is 29 years of age and in a relationship of five years with
another woman. He has 3 children aged 9, 7 and
6 years with 3
different women. Before his arrest he did odd jobs, performing
garden services and also sold perfumes.
His average income was
between R150 and R200 per day. He did grade 10 at school.
He had been in custody for about two
years awaiting trial. He has a
previous conviction of contravention of section 5(1) of
the Criminal Law (Sexual Offences
Act 32 of 2007) in which he was
sentenced to 5 years imprisonment which was suspended in whole for 5
years on certain conditions.
[16]
The accused has been
convicted
of a very
serious
violent offences, to wit, murder, assault with intent to cause
grievous bodily harm, robbery and three counts of robbery
where
aggravating circumstances are present.
[17]
A
golden
thread in
all
these offences is the
modus
operandi
of how those offences were committed. In all these matters the
victims were attacked without provocation. In the count
of
murder, the deceased was walking peacefully with his wife when
accused, unprovoked accosted him and asked the deceased about
how he
(the accused) looked. Unprovoked he went into a stabbing spree
and killed the deceased.
[18]
With regard to the assault with intent to do grievous bodily harm,
complainant said the accused wanted to stab him several
times but he
did not know why the deceased wanted to stab him. He did stab him
however.
[19]
All the victims of robbery, including robbery with aggravating
circumstances met the accused and he took their cellophanes
by force
wielding a weapon. It is clear from the evidence that the
appellant terrorised society.
[20]
Violent crimes are not only prevalent within the division of this
court but throughout the country.
[21]
In
S
v Mahlatsi
2013 (2) SACR 625
(GNP) where the court was dealing with robbery said
this on page 9:
“
[9]
Ordinary citizens cannot be blamed for constantly living in fear for
their lives, never mind the safety of their possessions,
so much so
that they either spend thousands of rands to try and create safe
havens to live in and vehicles to travel in; emigrate;
take the law
into their own hands; or simply cringe at the thought of venturing
out onto the streets or even to stay at home, because
it would appear
that there is nowhere to hide and no way in which one can properly
defend oneself……”
[22]
Although the appellant contends that the court
a
quo
did not take into account, the period the appellant spent in custody
awaiting trial, this assertion cannot be sustained.
It is clear
from the record that the said court was alive to the fact that the
appellant had been in custody for about two years
awaiting trial. I
am therefore satisfied that the court
a
quo
took
the period the appellant spent in custody while awaiting
finalisation of his trial in consideration when it determined
the
appropriate sentence.
[23]
It is my view that the court
a
quo
in coming to the sentences it imposed, correctly balanced the
personal circumstances of the appellant against the seriousness of
the offences and the interest of society. It is also clear that the
trial court deviated from imposing the prescribed sentence
in all
counts where the prescribed sentences were applicable.
[24]
I cannot, therefore, find that the court
a
quo
committed any misdirection in imposing the sentences herein or even
still, that the sentences imposed were disproportionate to
the
crimes, the personal circumstances of the appellant and the interest
of society.
[25]
In conclusion, with regard to count 2, the appellant was sentenced to
6 months imprisonment which was suspended for 5 years
on certain
conditions. The court ordered that two years of the sentences on
counts 6, 7 and 8 should run concurrently with the
sentence in count
2 (the suspended sentence).This order appears to have been mistaken
because in respect of count 2 appellant was
sentenced as indicated in
this paragraph.
[26]
Further the operation of the sentence having been suspended, the
court
a
quo
was
not empowered to order that a suspended sentence should run
concurrently with the imprisonment terms. It must be borne in mind
that in order to put such a suspended sentence into operation, the
condition(s) of the suspension must have been breached and the
court
must have proceeded with the procedure as laid down in section 297(9)
of the CRIMINAL PROCEDURE ACT. In that regard the order
of the court
ordering that the sentences in counts 6, 7 and 8 shall run
concurrently with the suspended sentence in
count
2 is incompetent and must be set aside. In order to correct and give
effect to the intention of the court
a
quo
the
following amendments will be made on the sentences imposed.
ORDER
[27]
The appeal fails and the convictions and sentences are confirmed
subject
to paragraph [28] below.
[28]
The sentence in count 2 is hereby set aside and it is substituted
With the following:
“
1.
AD
Count
2:
The
accused is sentenced to 6 (six) months
Imprisonment;
2.
It is ordered that the sentences in counts 6, 7 and 8 shall run
concurrently with the sentence imposed in respect of count 2;
3.
It is further ordered that 2 years of the sentences imposed in counts
6, 7 and 8 shall run concurrently with the sentence imposed
in counts
1 and 5.
4.
The
appellant shall serve an effective term of imprisonment of 20 years.”
[29]
The order in terms of
section 103(3)
of the
Firearms Control Act 60
of 2000
remains in place.
_________________
P
MOLITSOANE, AJ
I
concur
___________
MBHELE,
J
On
behalf of appellant:
Mr
P.L. Van der Merwe
Instructed
by:
Bloemfontein Justice Centre
Bloemfontein
On
behalf of respondent:
Adv. R Hoffman
Instructed
by:
Office of the Director: Public Prosecutions
Bloemfontein
/PK