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[2016] ZAECMHC 44
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Davids v S (CA&R77/2016) [2016] ZAECMHC 44 (21 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO: CA&R 77/2016
Heard
on: 31 August 2016
Delivered
on: 21 September 2016
In
the matter between:
BERNARD
DAVIDS
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
MAKAULA
J:
Introduction
:
[1]
The appellant is appealing against a sentence of fifteen (15) years
imprisonment handed down after he pleaded guilty to and
was convicted
of robbery with aggravating circumstances by the regional court.
Facts
:
[2]
In his plea of guilty in terms of Section 112(2) of the Criminal
Procedure Act
[1]
, the appellant
stated the facts under which the offence was committed. The
state accepted the facts as correct. The
facts as reflected in
the statement read:
“
.
. . on 20
th
of January 2009 at or near Extension 21 in the Regional Division of
the Eastern Cape I unlawfully and intentionally assaulted Jacques
Plaatjies and then with force take the following item from him, 1
cell phone, property in his lawful possession. The aggravating
circumstances being that the complainant was threatened with a
knife. On the day in question, Davie and myself was walking
to
Extension 21 whilst walking we came across the complainant and asked
him what the time was. The complainant responded
by saying that
he did not know what the time was. Davie then told the
complainant that he, (the complainant) had a cell phone
and could
look for the time on the cell phone. The complainant then took
the cell phone out of his pocket and then I took
a knife out of my
pocket. I grabbed the cell phone from the complainant and told
the complainant he should leave or I will
hurt him. The
complainant then left. We then also walked away. . . .”
(sic)
Grounds
of Appeal
:
[3]
The grounds of appeal are that
(a)
the
regional court magistrate erred in not having sufficient regard to
the appellant’s personal circumstances by imposing
a sentence
which induced a sense of shock and was strikingly “
inappropriate”
;
and
(b)
that
the court a quo overemphasized the seriousness of the offence at the
expense of the personal circumstances of the appellant
and placed
emphasis on the retributive and deterrent aspect in total disregard
of rehabilitation and restorative justice components.
[4]
Mr Charles, on behalf of the appellant, submitted before us that
there was no misdirection on the part of the court a quo except
that
the sentence is disproportional to the offence.
Court
a quo
:
[5]
In sentencing the appellant, the court a
quo
took into account the following mitigating factors that; the
appellant was 27 years old, he has two children who stay with their
mother; he was employed and used his salary to support his children;
he pleaded guilty and thus showed remorse, the complainant
did not
sustain serious injuries and the appellant had been in custody from
the time of his arrest on 12 November 2010 until the
day of his
conviction and sentence i.e. being 6 March 2012. The appellant
has a previous conviction of robbery which dated
back to 23 March
2004.
[6]
The court a
quo
found no substantial and compelling circumstances and imposed the
minimum sentence of fifteen (15) years.
Analysis
:
[7]
It is trite that the passing of sentence is pre-eminently a matter
for the discretion of the trial court and a court of appeal
can
interfere only if the decision is vitiated by irregularity or
misdirection
[2]
. Mr
Charles, correctly, in my view conceded that there is no misdirection
by the court a
quo
.
The disproportionality of the sentence imposed to the offence
committed by the appellant was not amply dealt with by Mr
Charles.
[8]
In sentencing the appellant the court a
quo
had to strike a balance between the crime, the offender and the
interest of society.
[3]
Doing lip-service to the balancing of these interests is not
permissible.
[9]
Robbery on its own is a serious offence let alone if aggravating
factors are present. The complainant was threatened with
a
knife. The complainant did not offer any resistance and hence
he was not injured. The mere production of a knife
indicates
that had he resisted he would have been probably injured.
[10]
In a similar matter, in
S
v Ivanisevic & Another
[4]
the complainant was an old frail lady of 80 years. She was
robbed at her house while sleeping in her bedroom by the appellants
in that matter. She woke up to the appellants standing in the
doorway of her bedroom door. The appellants ordered her
to keep
quiet and that they would not hurt her if she complied. They
put a piece of bandaging tape over her eyes. The
appellants
robbed her of her jewellery and other belongings. The
appellants were convicted and sentenced to 10 and 12 years
respectively. They appealed the sentences. In dismissing
the appeal, Holmes JA reasoned as follows:
“
These
were determined men bent on a calculated outrage of avarice, the
expected rewards were high; and they already resorted to
such
violence as was thought necessary by tying the victim’s wrists
tightly and uttering the blunt threat, ‘keep quiet
and nobody
will get hurt.’
In
view of their marauding purpose it seems to me at odds with realities
to suppose that, had there been resistance, they would
have refrained
from matching it with further violence, and would tamely have
departed with their tails between their legs, balked
of their
intended spoil
.
Moreover, this was a frail and elderly lady and further violence
could easily have caused danger to life and limb.”
(Emphasis
added).
[11]
I find these sentiments equally apposite in this matter even though
the complainant was young. Similarly, the appeal
in this
matter, in the absence of a misdirection stands to be dismissed.
Consequently,
I make the following order:
1.
The
appeal is dismissed.
____________
M
MAKAULA
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered:
J
ROBERSON
JUDGE
OF THE HIGH COURT
Appearances
:
Appellants:
Mr Charles
instructed by
Justice
Centre
GRAHAMSTOWN
Respondent:
Mr Els
instructed by
Director
of Public Prosecutions
GRAHAMSTOWN
[1]
Act 51 of 1977
[2]
S v Letsoko & Others
1964 (4) SA 768
(A) at 777D-E
[3]
S v Zinn
1969
(2) SA 537
(A) at 540G
[4]
1967 (4) SA 572
(A) at 574H-575A