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[2016] ZAKZPHC 7
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Gamede v S (AR24/15) [2016] ZAKZPHC 7 (9 February 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO.: AR24/15
DATE: 09 FEBRUARY 2016
NOT REPORTABLE
In the matter between:
NKOSINATHI ERICK
GAMEDE
...................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Delivered on: TUESDAY, 09 FEBRUARY
2016
OLSEN J (GORVEN J et BOOYENS AJ
concurring)
[1] The appellant Nkosinathi Erick
Gamede was the sixth of seven accused persons charged on a number of
counts in the court a quo
arising from what is commonly known as a
“cash-in-transit heist”. He and five other of the
accused persons were convicted
on five counts of attempted murder and
four counts of robbery with aggravating circumstances. These
convictions arose out of events
which took place on 17 September
2001, and the accused were convicted on 23 September 2003.
[2] Sentence was imposed on 25
September 2003. The learned Acting Judge imposed sentences of 30
years imprisonment in respect of
each of four of the attempted murder
convictions, 20 years imprisonment in respect of the remaining
conviction of attempted murder,
20 years imprisonment in respect of
one of the robbery convictions, and 15 years imprisonment in respect
of each of the remaining
three robbery convictions. The learned
Acting Judge then crafted a complex scheme of concurrency of
sentences which resulted in
four of the accused being sentenced to an
effective term of imprisonment of 95 years, and the appellant and one
other being sentenced
to effective terms of imprisonment of 60 years.
The four had previous convictions. The appellant was one of the two
who did not
have previous convictions. It seems clear from the
judgment on sentence that it was the issue of previous convictions
alone which
determined the difference between the two periods of
effective imprisonment imposed in the court a quo.
[3] The appellant appeals against the
cumulative effect of the sentences imposed upon him with leave
granted by another Judge of
this Division. It appears from the
record placed before us that in earlier appeal proceedings the
sentences imposed upon three
of those who were sentenced to effective
terms of imprisonment of 95 years were reduced to 45 years
imprisonment.
[4] There is no need in this judgment
to give a full account of the evidence which gave rise to the
convictions. The trial lasted
some 22 days. In brief, the findings
were that, acting with common purpose, the accused devised a plan to
rob a Fidelity Guards
van carrying cash said to amount to some
R2.5million. The robbery would take place between Durban and
Pietermaritzburg at a certain
road in a small country town. The
accused armed themselves with automatic assault rifles, secured
stolen getaway cars and uniforms
so that they could masquerade as
police, studied the route that the target van would take, and planned
their assault accordingly.
The attack commenced with firing upon the
van and its occupants. Bullets struck the tyres which caused the van
to overturn.
Two of the attempted murder charges related to firing
upon the two Fidelity Guard employees in the van. Two of the robbery
charges
related to the theft of two revolvers from the Fidelity crew.
As the van had overturned onto its access door the accused could
not
gain entry to the back of the van in order to steal the money they
were after. Whilst some of them attempted to break into
the van
using hammers, others set up a road block with a view to preventing
interference with efforts to get into the van. Some
members of the
public had seen what was going on and attempted to intervene. They
were fired upon. Two rifles were stolen from
two of those members of
the public. Two policemen from the Camperdown Police Station
attempted to intervene and were fired upon
as they approached in
their vehicle. One of them was rendered a paraplegic as a result of
the wounds he sustained, and the other
very luckily escaped
relatively unharmed when two bullets struck his chest in an area
protected by his bullet proof vest. The
money in the van was not
accessed by the accused as they could not break into the rear section
of the vehicle.
[5] The learned Acting Judge in the
court a quo summarised his view of the crimes in his judgment on
sentence as follows.
“These crimes committed by the
accused are akin to a declaration of war not only on the State but on
society as well. Two
law enforcement members of the State were
nearly killed and one is now a helpless paraplegic doomed to a life
of pain and suffering
because of the conduct of such accused. Three
other members of the public, courageous enough to come to the
assistance of the
helpless Fidelity Guards came under fire, [and] but
for swift evasive action, would have been killed. Each of the
accused knew
exactly what was expected of him and they performed
their respective roles with a single-minded purpose to smash and grab
the loot
without any regard for life, person or property of innocent
bystanders and members of the public. Fast moving vehicles, hi-tech
communication vital to an economically growing prospective,
prosperous and modern-day society, were used by such individuals to
undermine its stability and tranquillity. If this is allowed to
continue, the inevitable result will be chaos and disorder.”
[6] It is argued that in the court a
quo too much emphasis was placed on the nature of the crimes and the
community’s interest
in having harsh sentences imposed for such
crimes in the hope of achieving a meaningful level of general
deterrence; and that too
little attention was given to the
circumstances of the accused. But on the other hand it cannot be
overlooked that what happened
here was in the nature of a military
incursion into a peaceful country town without any regard whatsoever
for the potential for
harm to members of the public who might come
upon the crime scene. The plan made by the accused was executed
ruthlessly. It is
merely fortuitous that the principal aim of
stealing money from the cash-in-transit van was not achieved. Any
number of people
could have been killed or injured in the course of
execution of the plan devised by the accused. It is clear from the
manner of
their preparation that the accused were well aware of that.
A just sentence for crimes of this nature must take into account the
public interest in having persons who invade public space with such
violent conduct being treated severely.
[7] The appellant did not give evidence
in mitigation. His counsel furnished the court with an account of
his personal circumstances.
He was the youngest of the accused who
were convicted, 26 years of age at the time the crimes were committed
and 28 years of age
when he was sentenced. He had been in custody
for about two years prior to sentencing. Although unmarried he had
two minor children
aged 8 and 6 years from different mothers. He did
not get beyond Std 2 at school. His counsel submitted that it should
be taken
into account that although there were multiple convictions,
all the crimes were perpetrated on the same occasion. He submitted
that by making sentences run concurrently it was open to the court to
show a measure of mercy. It was submitted on behalf of the
appellant
that given his age the prospect of rehabilitation should not be
ignored. However it was not submitted on his behalf
that any remorse
was evident, and nothing in the record suggests that the appellant’s
counsel erred in that regard.
[8] In passing sentence the Acting
Judge in the court a quo recorded that his purpose was to ensure that
the accused were removed
permanently from society. In S v Moswathupa
2012 (1) SACR 259
at para [9] a similar comment by a sentencing court
was criticised as offending the principle expressed by Holmes JA in S
v Sparks
and Another
1972 (3) SA 396
(A) at 410 G that wrongdoers
“must not be visited with punishments to the point of being
broken”. In the present context
it is worth quoting a little
more of the passage from the judgment of Holmes JA.
“On the other hand, the offences
were, without doubt, very grave; and in addition to the matter of
punishment, the deterrent
aspect calls for a measure of emphasis,
lest others think the game is worth the candle. Nevertheless, the
appellants must not
be visited with punishment to the point of being
broken. Punishment should fit the criminal as well as the crime, be
fair to the
State and to the accused, and be blended with a measure
of mercy.”
[9] In my view an effective sentence of
60 years imprisonment is not required in order publicly to convey
with regard to these crimes
that the game is indeed not “worth
the candle”. A sentence of 60 years imprisonment imposed upon a
28 year old man
is a sentence designed to be a punishment to break
the man. There is no indication in the judgment on sentence of any
note being
taken of the plea for mercy made on behalf of the
appellant. The learned Acting Judge in the court a quo erred in
these respects.
[10] The scheme of concurrency devised
by the court a quo in sentencing the appellant was as follows. The
various sentences (of
30 years, 20 years and 15 years imprisonment)
imposed in respect of counts 1 to 6 and 8 were to run concurrently,
generating an
effective term of imprisonment of 30 years. The
sentences imposed in respect of counts 9 and 10, of 30 years each,
were to run
concurrently, generating also an effective term of
imprisonment of 30 years. Given that the leave to appeal granted to
the appellant
is against the cumulative effect of the sentences only
(a decision which has not been challenged by the appellant), the
minimum
sentence which we can impose now is one of 30 years
imprisonment, which might be achieved by making all of the sentences
run concurrently.
[11] In S v Muller
2012 (2) SACR 545
(SCA) the court considered a case in which sentences of 10 years
imprisonment were imposed in respect of each of three convictions
on
charges of robbery with aggravating circumstances. The effective
sentence was therefore 30 years imprisonment. The court expressed
the view that such an effective sentence is an extremely severe
punishment and should be reserved for “particularly heinous
offences”. The effective sentence was reduced to 18 years
imprisonment.
[12] In S v Mabunda
2013 (2) SACR 161
(SCA) the court considered sentences of 15 years imprisonment imposed
in respect of each of two convictions on charges of robbery
with
aggravating circumstances, also generating an effective sentence of
30 years imprisonment. Again the effective term was reduced
to 18
years imprisonment, and the court said this in paragraph [7] of the
judgment, after making the observation that in crimes
of the kind
dealt with in that case punishment and deterrence are factors which
come to the fore.
“On the other hand, 30 years
imprisonment is an extremely severe sentence. It is a sentence on a
scale that should be reserved
for those cases falling within the
upper echelons of severity. And while by their very nature all cases
of robbery with aggravating
circumstances are severe, neither of
these robberies was associated with the level of gratuitous violence
which is unfortunately
all too often the case.”
[13] In this case there are multiple
convictions. But all of them arise out of what might be called a
single event. This is indeed
a case where punishment and deterrence
must come to the fore. It is in my view a case which reaches the
“upper echelons
of severity”. Taken collectively the
offences are “particularly heinous”. A sentence of 30
years imprisonment
would not be inappropriate.
[14] In my view an effective sentence
in excess of 30 years imprisonment would not properly bring to
account the fact that the appellant
was a first offender, and would
reflect inadequate attention to the duty of the court to consider the
extent to which mercy should
be blended with the community’s
interest in seeing heinous crimes severely punished.
The following order is made.
1. The sentences of imprisonment
imposed on the appellant on 25 September 2003 in respect of each of
counts 1, 2, 3, 4, 5, 6, 8,
9 and 10 are confirmed.
2. The appeal against the orders made
in the court a quo as to which of the sentences imposed on the
appellant would run cumulatively,
and which concurrently, is upheld,
and those orders are set aside.
3. It is ordered that the sentences of
imprisonment imposed in respect of all convictions (that is to say on
counts 1, 2, 3, 4,
5, 6, 8, 9 and 10) shall run concurrently. The
effective sentence is accordingly 30 years imprisonment.
4. The effective sentence of 30 years
imprisonment is ante-dated to 25 September 2003.
OLSEN J
GORVEN J
BOOYENS AJ
Date of Hearing: FRIDAY, 29 JANUARY
2016
Date of Judgment: : TUESDAY, 09
FEBRUARY 2016
For the Appellant : MR I KHAN
Instructed by: PMB JUSTICE CENTRE
Appellant’s Attorneys
183 Church Streets
Pietermaritzburg
(Ref.: Mr I Khan)
(Tel No.: 033 – 394 2190)
For the Respondent: MR M MTHEMBU
Instructed by: Director of Public
Prosecutions
325 Pietermaritz Street
Pietermaritzburg
(Ref.: Mr M Mthembu)
(Tel.: 033 – 845 4400)