About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 16
|
|
Shangase v S (AR207/2015) [2016] ZAKZPHC 16 (19 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
NOT REPORTABLE
CASE NO: AR207/2015
In
the matter between:
MPUMELELO
IRVIN
SHANGASE
APPELLANT
and
THE
STATE
RESPONDENT
Coram
: Gorven et Seegobin JJ
Heard
: 11 February 2016
Delivered
: 19 February 2016
ORDER
On
appeal from the Regional Court, Pietermaritzburg (Mr Ngobese, sitting
as a court of first instance):
(a)
The appeal against sentence succeeds to the extent set out below:
(i)
The sentence imposed on counts 5, 6 and 9 are set aside and replaced
with the following:
On
counts 5, 6 and 9, the accused is sentenced to five years
imprisonment on each count.
(ii)
The aggregate sentence of 15 years imposed on counts 5, 6 & 9
will run concurrently with
the aggregate sentence of twenty years
imposed on counts 1, 2, 7 and 8. The effective sentence
is one of 20 years imprisonment.
(iii)
All of the sentences will run from 13 September 2012.
JUDGMENT
SEEGOBIN
J (Gorven J concurring):
[1]
This is an appeal against sentence only. The appellant was
arraigned in the Regional Court, Durban, on the following charges:
count 1, robbery with aggravating circumstances; count 2, kidnapping;
count 3, kidnapping; count 4, robbery with aggravating circumstances;
count 5, theft; count 6, theft; count 7, kidnapping; count 8, robbery
with aggravating circumstances, and count 9, theft.
At the
conclusion of all the evidence, he was convicted on counts 1, 2, 5,
6, 7, 8 and 9. Counts 1 and 2 were taken as one
for the purpose
of sentence and he was sentenced to ten years imprisonment; on counts
5 and 6 he was sentenced to eight years on
each count; counts 7 and 8
were taken as one and he was sentenced to 10 years imprisonment and
on count 9, he was sentenced to
ten years imprisonment. The
effective sentence was one of 46 years imprisonment.
[2]
The offences in counts 1 and 2 were committed on 4 August 2009 while
those in counts 5 and 6 were committed on 30 April 2009
and 3
December 2009 respectively. The offences in counts 7 and 8 were
committed on 30 November 2009 and that in count 9 on
3 January 2010.
[3]
Mrs
Barnard
who appeared on behalf of the appellant, submitted
that the cumulative effect of the sentence of 46 years imprisonment
induces
a sense of shock. Quite apart from this she also
contended that the individual sentences on counts 5 and 6 and that on
count
10 were shockingly inappropriate bearing in mind the different
amounts that were stolen on these counts. On count 5 for
instance
the amount stolen was R15 700.00 whereas on count 6,
the amount was R1 900.00. Despite this the trial court
imposed
a sentence of eight years on each of these counts. As
far as count 9 is concerned the amount involved was R10 250.00
and the sentence imposed was ten years imprisonment. This was
higher than on count 5 in which the amount is greater.
Given
these disparities, she submitted that a fair sentence on these three
counts should be one of five years imprisonment on each
count.
[4]
Mr
Mcanyana
, for the State, properly and correctly in my view,
conceded that the cumulative effect of the sentence imposed by the
court
a quo
was unduly severe. He further accepted that
the individual sentences on counts 5, 6 and 9 should be reduced to
five years
on each count.
[5]
It is well-established that when dealing with multiple offences a
court must not lose sight of the fact that the aggregate penalty
must
not be unduly severe
[1]
.
Leach JA in
S v Muller
[2]
stated the position as follows:
“
When dealing with multiple offences, a sentencing
court must have regard to the totality of the offender's criminal
conduct and
moral blameworthiness in determining what effective
sentence should be imposed, in order to ensure that the
aggregate penalty
is not too severe. In doing so, while punishment
and deterrence indeed come to the fore when imposing sentences for
armed robbery,
it must be remembered, as Holmes JA pointed out in his
inimitable style, that mercy, and not a sledgehammer, is the
concomitant
of justice. And while a judicial officer must not
hesitate to be firm when necessary, 'he should approach his task
with
a humane and compassionate understanding of human frailties and
the pressures of society which contribute to criminality'. In
addition,
although it is in the interest of the general public that a
sentence for armed robbery should act as a deterrent to others, an
offender should not be sacrificed on the altar of deterrence. As
Nicholas JA observed in
S v Skenjana
:
'A
sentence of 20 years' imprisonment is undoubtedly very severe . . . .
My personal view is that the public interest is not necessarily
best
served by the imposition of very long sentences of imprisonment. So
far as deterrence is concerned, there is no reason to
believe that
the deterrent effect of a prison sentence is always
proportionate to its length. Indeed, it would seem to be
likely that
in this field there operates a law of diminishing returns: a point is
reached after which additions to the length of
a sentence produce
progressively smaller increases in deterrent effect, so that, for
example, the marginal deterrent value of a
sentence of 20 years over
one of say 15 years may not be significant.
. . .
Nor
is it in the public interest that potentially valuable human material
should be seriously damaged by long incarceration. As
I observed in
S
v Khumalo and Another
[1984] ZASCA 30
;
1984 (3) SA
327
(A) at 331, it is the experience of prison administrators that
unduly prolonged imprisonment brings about the complete mental and
physical deterioration of the prisoner. Wrongdoers
must not be visited with punishments to the point of being broken.
(
Per
Holmes JA in
S v Sparks and Another
1972 (3) SA 396
(A) at 410G.)'”
[6] It is trite that sentencing is pre-eminently a
matter for the discretion of the trial court. An appeal court is
only entitled
to interfere with a sentence where there has been a
material misdirection by the trial court or when the sentence imposed
by the
trial court is shocking and startlingly inappropriate.
In determining an appropriate sentence, the court should be mindful
of the foundational sentencing principle that '(p)unishment
should fit the criminal as well as the crime, be fair to society,
and
be blended with a measure of mercy'
[3]
.
In addition to that the court must also consider the main purposes of
punishment, which are deterrent, preventive, reformative
and
retributive. In the exercise of its sentencing discretion a
court must strive to achieve a judicious balance between
all relevant
factors 'in order to ensure that one element is not unduly
accentuated at the expense of and to the exclusion
of the others
[4]
.
[7]
It is clear that the aggregate sentence in the present matter cannot
be justified and must be ameliorated. The starting
point,
however, would be to reduce the sentences on counts 5, 6 and 9 to
five years on each count as there appears to be no reasonable
explanation for the disparity between the sentences imposed on these
counts. Having done this exercise I believe that the
aggregate
sentence should be one not exceeding 20 years. This can be
achieved by ordering the sentences to run concurrently
as will be
reflected in the order which follows hereunder.
[8]
An ancillary issue raised by Mrs Barnard was that the trial court had
failed to take into account the period of two years and
seven months
which the appellant spent in custody awaiting trial. I
disagree. This was taken into account by the trial
court when
considering an appropriate sentence to be imposed.
ORDER
[9]
The order I make is the following:
(a)
The appeal against sentence succeeds to the extent set out below:
(i)
The sentence imposed on counts 5, 6 and 9 are set aside and replaced
with the following:
On
counts 5, 6 and 9, the accused is sentenced to five years
imprisonment on each count.
(ii)
The aggregate sentence of 15 years imposed on counts 5, 6 & 9
will run concurrently with
the aggregate sentence of twenty years
imposed on counts 1, 2, 7 and 8. The effective sentence
is one of 20 years imprisonment.
(iii)
All of the sentences will run from 13 September 2012.
_______________
I agree
GORVEN
J
Date
of Hearing
:
11 February 2016
Date
of Judgment
:
19 February 2016
Counsel
for Appellant
:
EX Sindane
Instructed
by
:
Justice Centre, Pietermaritzburg
Counsel
for Respondent :
MV Mcanyana
Instructed
by
:
The Director of Public Prosecutions, Pietermaritzburg
[1]
S
v Moswathupa 2012(1) SACR 259 SCA.
[2]
2012(2)
SACR 545 (SCA) at 549-550.
[3]
S
v Rabie 1975(4) SA 855() at 862 G-H.
[4]
S
v Moswathupa,
supra
,
para [4].