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[2016] ZAKZPHC 50
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Ntshalintshali v S (AR 691/15) [2016] ZAKZPHC 50 (7 June 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
KWAZULU NATAL
DIVISION, PIETERMARITZBURG
Case No: AR
691/15
DATE: 07 JUNE
2016
In
the matter between:
KHULEKANI
WONDERBOY
NTSHALINTSHALI
....................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram
: Seegobin, Poyo Dlwati JJ et Hemraj AJ
Heard
: 27 May 2016
Delivered
: 07 June 2016
ORDER
On
appeal from KwaZulu Natal High Court, Pietermaritzburg, Nkosi AJ
sitting as a court of first instance:
(a)
The appeal against sentence is upheld. The sentence of the court
a
quo
is set aside and substituted with the following sentence:
(b)
The accused is sentenced to 6 years imprisonment in respect of counts
1 to 5 which are taken together for the purposes of sentence;
(c)
The accused is sentenced to 10 years imprisonment in respect of count
6.
(d)
The sentences are ante dated to 23 July 2010.
JUDGMENT
POYO
DLWATI J
[1]
This is an appeal against the sentence imposed by Nkosi AJ on 23 July
2010 sitting as a court of first instance in the Pietermaritzburg
High Court.
[2]
Following on a plea of guilty, the appellant was convicted of five
counts of attempted murder (counts 1 to 5) and one count
of robbery
with aggravating circumstances (count 6). The provisions of Section
51 and Schedule 2 of the Criminal law Amendment
Act 105 of 1997 were
applicable to count 6. Counts 1 to 5 were taken as one for the
purposes of sentence and the appellant was
sentenced to 15 years. He
was also sentenced to 15 years imprisonment for count 6. Five (5)
years of the sentence in counts 1 to
5 were ordered to run
concurrently with the sentence in count 6. The effective term of
imprisonment was 20 years. The Learned Acting
Judge also fixed a
non-parole period of fifteen years imprisonment in terms of s 278B of
the Criminal Procedure Act 51 of 1977
(the Act).
[3]
The facts upon which the appellant was convicted were that he was
part of a group of 12 men who had planned to rob and did rob
the
KwaSiyabonga Butchery and Fresh Produce Supermarket (the supermarket)
in Kranskop on 2 July 2010. On the day in question the
supermarket
was also used as an old age and disability pensions pay point. There
were therefore a large number of persons present
in and around the
supermarket. At about 14h00 on that day the assailants entered the
supermarket and held the occupants at gunpoint.
A shoot out ensued
between the assailants and the members of the public who wanted to
come to the rescue of the supermarket owners.
As a result, the
complainants in counts 1 to 5, who were mostly members of the public,
were injured in the process. The assailants
took off with some cash,
cellular phone, airtime vouchers, a firearm and ammunition from the
supermarket. The assailants were arrested
shortly after the incident
and the appellant pleaded guilty to the charges.
[4]
There are two issues which arise on appeal. The first is whether the
learned judge
a
quo
misdirected
himself when he fixed a non-parole period of 15 years imprisonment on
the appellant without first having alerted the
parties of his
intentions to fix such a period and to invite submissions of either
the appellant or the state in that regard. As
held in
S
v Stander
,
[1]
a court that considers a non-parole period should alert the parties
to this fact and give them an opportunity to address it on
at least
the following two issues, should a non-parole period be ordered and,
furthermore what period should be attached to the
order.
Furthermore, the court
a
quo
should have made specific findings as regards the presence of
exceptional circumstances which would justify fixing a non-parole
period; and the court should advance reasons why it was found
desirable to impose a non-parole period.
[5]
And as held in
S
v Pauls
[2]
the exceptional circumstances cannot be spelled out in advance in
general terms, but should be determined on the facts of each
case.
These should be circumstances that are relevant to parole and not
only aggravating factors of the crime committed, and a
proper
evidential basis should be laid for a finding that such circumstances
exist. In the present matter none of these issues
seem to have been
considered. The state has, correctly in my view, conceded this point
and agrees that the court
a
quo
erred
in having a non-parole period fixed on the appellant. I agree
therefore that the court
a
quo
misdirected itself when it fixed a non-parole period when sentencing
the appellant as this case was not shown to be exceptional.
The
non-parole period therefore ought to be deleted. We are therefore at
large to impose a fresh sentence that we deem appropriate
and that
brings me to the second issue.
[6]
The second issue is whether the sentence that was imposed on the
appellant was unduly harsh or shockingly disproportionate to
the
circumstances of the case. It seemed that the court
a
quo
found that the appellant’s personal circumstances were
demonstrably weighty to constitute substantial and compelling
circumstances
with regard to counts 1 to 5 but did not find them to
be substantial and compelling with regard to count 6. This, in my
view, is
another misdirection committed by the court
a
quo
.
This is especially so because the attempted murder charges were
committed during the course of the robbery and any evidence
applicable
to counts 1 to 5 would be applicable to count 6. As held
in
S
v Muller
,
[3]
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. This is another reason that warrants our interference.
[7]
The evidence before the court
a
quo
was that the appellant was 24 years old and was unmarried. He had
three children. He had passed grade 9 and had left school due
to
financial difficulties. He worked temporarily as a gardener at times
and also as a mechanic’s assistant. He was a first
offender and
was remorseful for his actions hence he pleaded guilty. At the time
of his plea he undertook to testify against his
co-assailants which
he, according to Mr Barnard, who appeared on his behalf, has done and
as a result six of those co-assailants
have been convicted mainly
because of his evidence. Accordingly, if those who are apprehended
are prepared to co-operate and assist
the authorities in getting more
criminals behind the bars then they should receive credit for such
co-operation as in that way
they make a real contribution towards
combating the incidence of crime.
[4]
[8]
There is no doubt that the offences committed by the appellant were
not only serious but are prevalent in our country. They
acted
recklessly with utter disregard for human lives. These included the
most vulnerable in our society, the elderly and the disabled.
Severe
sentences should therefore be imposed not only to signal the court’s
abhorrence of such crimes but also to deter would
be offenders.
However, the cumulative effect of the sentence is unduly harsh in the
circumstances and is disproportionate to the
offences. This much was
also conceded by Ms Watt who appeared on behalf of the state. In my
view, this appellant should not be
sacrificed on the altar of
deterrence. As held by Leach JA in
S
v Muller
,
[5]
mercy and not a sledgehammer is the concomitant of justice. A judge
should approach sentence with humane and compassionate understanding
of human frailties and the pressures of society which contribute to
criminality.
[9]
The appellant’s youthfulness coupled with the plea of guilty
are a good indication that he is a good candidate for rehabilitation.
And as held in
S
v Sparks and another
,
[6]
wrongdoers must not be visited with punishment to the point of being
broken. Furthermore, the appellant’s explanation that
his role
in the robbery was to stand guard must also be taken into account as
this was part of his plea explanation tendered
in terms of s
112(2) of the Act that was accepted by the state.
[7]
In any event, he has accepted responsibility for all the attempted
murder charges and the robbery. Even though the court
a
quo
had ordered that part of the sentence in counts 1 to 5 should run
concurrently with the sentence in count 6 this still did not
make
much of a difference to the severity of the sentence.
[10]
As held in
S
v Mthethwa
[8]
an order that sentences should run concurrently is called for where
the evidence shows that the relevant offences are inextricably
linked
in terms of the locality, time, protagonists and, importantly, the
fact that they were committed with one common intent.
Having taken
into account all of the appellant’s personal circumstances and
weighing them against the offences and their
seriousness and the
interests of society, I am satisfied that they are weighty enough to
constitute substantial and compelling
circumstances justifying the
imposition of less severe sentences than the ones imposed. Justice
will still be served if a sentence
of less than 20 years imprisonment
is imposed. Deterrence should also be achieved by the sentence we are
going to impose.
[11]
Accordingly I propose the following order:
(a)
The appeal against sentence is upheld. The sentence of the court
a
quo
is set aside and substituted with the following sentence:
(b)
The accused is sentenced to 6 years imprisonment in respect of counts
1 to 5 which are taken together for the purposes of sentence;
(c)
The accused is sentenced to 10 years imprisonment in respect of count
6.
(d)
The sentences are ante dated to 23 July 2010.
POYO
DLWATI J
I
agree
SEEGOBIN
J
HEMRAJ
AJ
Date
of Hearing : 27 May 2016
Date
of Judgment : 07 June 2016
Counsel
for Appellant : Mr L Barnard
Counsel
for Respondent : Ms A Watt
[1]
2012 (1) SACR 53
(SCA) para 22.
[2]
2011 (2) SACR 417
ECG para 15.
[3]
2012
(2) SACR 545
(SCA) para 9.
[4]
S
v Sebata
1994
(2) SACR 319
(C) at 325e – f.
[5]
2012 (2) SACR 545
(SCA) para 9.
[6]
1972 (3) SA 396
(A) at 410 G.
[7]
S v Nkosi
2011 (2) SACR 482
(SCA) para 33.
[8]
2015 (1) SACR 302
(GP) para 22.