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[2016] ZAKZPHC 47
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Ngema v S (AR630/2013) [2016] ZAKZPHC 47 (27 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
CASE
NO: AR630/2013
DATE:
27 MAY 2016
NOT
REPORTABLE
In
the matter between:
SPHAMANDLA
NGEMA
.................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram
: Seegobin et Poyo Dlwati JJ
Heard
: 24 May 2016
Delivered
: 27 May 2016
ORDER
On
appeal from the Regional Court, Durban (Mrs Maphumulo, sitting as a
court of first instance):
(a)
The appeal against sentence succeeds to the extent set out below:
(b)
The sentence imposed by the court
a quo
is set aside and is
replaced by the following:
(i)
Counts 1, 2 and 3 are taken as one for purpose of sentence and the
accused is sentenced to 15 years imprisonment.
(ii)
Counts 4, 5 and 6 are taken as one for purpose of sentence and the
accused is sentenced to five years imprisonment. The effective
sentence is thus one of 20 years imprisonment.
JUDGMENT
SEEGOBIN
J (et Poyo Dlwati JJ concurring):
[1]
This is an appeal against sentence only. The appellant was one
of two accused who was arraigned in the Regional Court,
Durban, on
the following charges: count 1, robbery with aggravating
circumstances; count 2, robbery with aggravating circumstances;
count
3, attempted murder; court 4, kidnapping; count 5, unlawful
possession of firearm; count 6, unlawful possession of ammunition;
count 8, attempted murder and count 9, attempted murder. The
appellant was convicted on counts 1 to 6. He was sentenced
as
follows: on counts 1 and 2 he was sentenced to 15 years imprisonment
on each count; on count 3, he was sentenced to 15 years
imprisonment;
on count 4 to five years imprisonment, on count 5 to three years
imprisonment and on count 6 to 18 months imprisonment.
The
sentence on count 2 was ordered to run concurrently with that on
count 1 and the sentences on counts 5 and 6 were ordered to
run
concurrently with count 4. The effective sentence was therefore
one of 35 years imprisonment.
[2]
In argument before us,
Mr Pillay
, on behalf of the appellant,
pointed out that in respect of the robbery charges on counts 1 and 2,
the charge sheet merely states
‘that the accused is guilty of
the crime of robbery with aggravating circumstances read with
sections 51 and 52 of Act 105
of 1997, firearm used’. It
was pointed out that in respect of both these counts the charge sheet
does not indicate
which part of section 51 the State relies on for
purposes of sentence in view of the fact that the charge of robbery
is covered
under Parts I, II and IV of Schedule 2 of the Act.
Despite the rather sloppy manner in which the charge sheet was framed
with reference to the provisions of Act 105 of 1997, Mr Pillay
accepted that the learned magistrate had acted correctly in having
regard to the provisions of Part II of Schedule 2 for the purposes of
sentence in respect of the robbery counts. In terms
of Part II
of Schedule 2 the minimum sentence to be imposed on a charge of
robbery with aggravating circumstances for a first offender
is one of
15 years imprisonment. This was the sentence imposed by the
court
a quo
on each of the robbery convictions on counts 1 and
2, no substantial and compelling circumstances having been found.
[3]
Mr Pillay submitted that the learned magistrate erred in not finding
any substantial and compelling circumstances which would
have
justified the imposition of a lesser sentence from that prescribed.
He proffered the following factors which he submitted
if considered
cumulatively would constitute substantial and compelling
circumstances in favour of the appellant: (a) that
he was a
first offender; (b) that he was only 18 years old at the time of the
commission of the offences; (c) that he had already
spent a period of
two and a half years in custody awaiting trial; (d) that the items
taken in the course of the robberies were
recovered and returned to
the complainants; and (e) that the complainants suffered no serious
physical injuries.
[4]
I have given anxious thought to the above factors as advanced by
Mr
Pillay but, regrettably I am unable to agree that either individually
or collectively these factors constitute substantial and
compelling
circumstances. I agree with
Ms Greef
for the State that
there is nothing out of the ordinary about any of the factors
referred to above. While the appellant was
only 18 years old at
the time, his youthfulness is offset by the sheer viciousness of the
attack on the complainants. It
was the appellant who had fired
a shot at point-blank range at the head of the complainant in count 1
with the clear intention
of killing him. It was simply
fortuitous that the shot was not fatal. The appellant and his
cohorts of course were
under the impression that the complainant was
dead when they left the scene taking the complainant’s
girlfriend along with
them.
[5]
It is a sad reality that most of the serious and violent crimes in
this country are committed by young people such as the appellant
herein. In my view, offenders such as the appellant who commit
despicable acts of violence against innocent and defenceless
members
of society cannot expect to receive a lighter sentence by claiming to
rely on their youthfulness at the time of commission
of the offence.
There is nothing on record to indicate that the appellant, by virtue
of his youthfulness, displayed a level of
immaturity and diminished
his moral blameworthiness to some extent. On the contrary, the
callous and cruel manner in which
these offences were committed by
the appellant indicates that he acted with a level of maturity far
beyond his years. In
my view, the aggravating features of this
case outweigh any mitigating effect brought about by the appellant’s
youthfulness.
[6]
The same considerations apply insofar as the sentence of 15 years on
the attempted murder in count 3 is concerned. Mr
Pillay
submitted that the sentence was unduly harsh and excessive bearing in
mind that the Act made provision for a minimum sentence
of five years
only. This may be so but as I pointed out above it was the appellant
who fired the shot at the complainant. In my
view, the learned
magistrate was fully justified in imposing the sentence which she did
on this count.
[7]
Turning to the effective sentence of 35 years, I agree with Mr Pillay
that the sentence is unduly harsh and must be ameliorated.
It is
well-established that a court dealing with multiple offences must not
lose sight of the fact that the aggregate penalty must
not be unduly
severe
[1]
. In
S
v Muller
[2]
the position was stated as follows by Leach JA:
“
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.)'”
[8]
In light of the nature and gravity of the offences committed by the
appellant and having regard to the main objectives of punishment
which are deterrent, preventative, reformative and retributive, I
consider that the aggregate sentence should be one not exceeding
20
years. This can be achieved by ordering that counts 1, 2 and 3
be taken as one for purposes of sentence and that the appellant
be
sentenced to 15 years imprisonment and that counts 4, 5 and 6 be
taken as one and the appellant be sentenced to five years
imprisonment. The changed sentence will be reflected in the order I
make.
ORDER
[9]
In the result, I make the following order:
(a)
The appeal against sentence succeeds to the extent set out below:
(b)
The sentence imposed by the court
a quo
is set aside and is
replaced by the following:
(i)
Counts 1, 2 and 3 are taken as one for purpose of sentence and the
accused is sentenced to 15 years imprisonment.
(ii)
Counts 4, 5 and 6 are taken as one for purpose of sentence and the
accused is sentenced to five years imprisonment. The effective
sentence is thus one of 20 years imprisonment.
POYO
DLWATI J I agree
Date
of Hearing : 24 May 2016
Date
of Judgment : 27 May 2016
Counsel
for Appellant : Mr T Pillay
Instructed
by : Justice Centre, Durban
Counsel
for Respondent : Ms W Greef
Instructed
by : Director of Public Prosecutions, Pietermaritzburg
[1]
S
v Moswathupa 2012(1) SACR 259 SCA.
[2]
2012(2)
SACR 545 (SCA) at 549-550.