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[2016] ZAECMHC 55
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Maharaj v S (01/16) [2016] ZAECMHC 55 (1 December 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION :
MTHATHA
C
ASE NO: 01/16
In the matter
between:
SANJAY
MAHARAJ
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
GRIFFITHS, J
[1] The appellant in
this matter was convicted by the Butterworth Regional Court of
robbery with aggravating circumstances and sentenced
to a period of
15 years imprisonment. Five years of that sentence was ordered to run
concurrently with a sentence of 15 years imprisonment
previously
imposed on the appellant for two previous convictions of robbery. The
effective period of imprisonment was, accordingly,
25 years. He has
come on appeal against his sentence having been granted the necessary
leave on petition.
[2] The salient facts
of the matter are the following: on 28 December 2007 the two
complainants were hitchhiking from East London
to Mthatha. They were
offered a lift in a vehicle driven by the accused. They accepted the
offer and noticed that there was a second
male, a white person,
sitting in the backseat. The first complainant sat in the front
passenger seat whilst the second complainant,
a sister of the first
complainant, sat in the backseat. The white male was also charged and
convicted along with the appellant,
but did not seek to appeal either
his conviction or sentence. I shall refer to him as the "second
accused". During the
course of the trip the second accused
pressed what appeared to be a firearm into the side of the first
complainant and demanded
her wallet and cell phone. She handed over
to him her purse containing her cell phone at which stage the second
accused pointed
the firearm at the head of the appellant, and ordered
him to stop the vehicle. The vehicle was stopped in the veld and the
complainants
were ordered out. The second accused threatened that in
the event of the complainants screaming, he would shoot the
appellant.
[3] The appellant and
the second accused thereafter left in the vehicle taking with them
the complainants’ suitcases. The
complainants thereafter
managed contact the police who ultimately apprehended the appellant
and the second accused.
[4] The appellant
pleaded not guilty at the trial maintaining throughout that he had
himself been a victim of robbery by another
occupant of the vehicle,
not the second accused, which version was correctly rejected by the
trial court.
[5] The full
transcript of the sentencing procedures and the judgment on sentence
was unfortunately mislaid and a reconstruction
was placed before us.
As indicated by the magistrate, he was unable to give the full
details of his
ex tempore
judgment but was able to provide the gist thereof.
[6] It appears
therefrom that the appellant had been employed as a Senior Operations
Manager by an entity known as “Bigfoot”
earning a net
salary of R13,500 per month. He was married with no offspring and his
wife was employed by a transport company.
[7] In aggravation
however, the prosecutor placed before the court a previous conviction
of two counts of robbery with aggravating
circumstances for which the
appellant had been sentenced to 15 years imprisonment on each count,
to run concurrently. It appears
from the record that these two
robberies had occurred within a two-day period before the occurrences
which led to the conviction
in this appeal and, of singular
significance, had been carried out employing the same modus operandi
as in the present appeal.
It was with this sentence that five years
of the sentence on this conviction was ordered to run concurrently.
[8] The appellant has
contended that the sentence is too severe and induces a sense of
shock. It has been argued on his behalf that
the magistrate should
have ordered the entire 15 year sentence in the present matter to run
concurrently with the effective 15
year sentence imposed on the
previous conviction. The state has, somewhat surprisingly in my view,
conceded that the sentence is
excessive and that we should interfere
with it.
[9] In my view, the
magistrate clearly took into account all the matters he ought to have
done such as the circumstances personal
to the appellant and the fact
that he was already undergoing a sentence of 15 years imprisonment.
Because the conviction fell under
Part II of Schedule 2 to Act 105 of
1997, and because this was a second conviction, the minimum sentence
prescribed by that Act
was one of 20 years. The magistrate found that
substantial and compelling circumstances for the purposes of section
51(3) of that
Act existed and sentenced the appellant to 15 years
imprisonment. In addition, and because he felt that the cumulative
sentence
when taken together with the sentence on the previous
conviction was excessive, he ordered that five years of the sentence
should
run concurrently therewith.
[10] As against all
of this, there are serious aggravating circumstances in this matter.
Firstly, there is the fact of the fear,
shock and trauma which the
two female complainants clearly went through as a consequence of
being pointed at with what they believed
was a real firearm, and of
being robbed whilst being held captive in a vehicle driven by the
appellant who was in cahoots with
the second accused in this regard.
There was also the abject fear they must have suffered of the
possible consequences which could
well have been meted out to them by
these two men who were robbing them and holding them captive, albeit
for a relatively short
time. In this regard, we have been referred to
the case of Matywatywa v S
[1]
.
In that matter, the appellant had been convicted of three counts of
robbery with aggravating circumstances using what was probably
a toy
gun. The first two counts occurred on the same day whilst the second
occurred some seven days later. His modus operandi was
to show his
victim the toy gun which was either tucked into his trousers or held
under his arm and thereby to force the victim
to hand over his or her
cell phone. The magistrate had taken the first two counts together
for the purposes of sentence and had
imposed a sentence of 15 years
imprisonment. The appellant was sentenced to a further five years
imprisonment in respect of count
three, an effective 20 years
imprisonment. On appeal, this was reduced to an effective seven years
imprisonment on all three counts.
[11] In my view, the
facts in that matter are vastly different to those in the present.
Firstly, there was a single person involved
robbing the complainants
individually in the street without holding them for any length of
time against their will. In the present
matter, the complainants were
taken advantage of whilst in the appellant's vehicle and unable to
escape and forced to remain therein
until such time as they were
summarily ejected. They must have suffered extreme trauma during this
period. Secondly, the personal
circumstances of the appellant in that
matter differ vastly to those of the appellant in the present matter.
The appellant in that
matter was 23 years of age and supported a
minor child. He had also been in custody for a period of some three
years. The appellant
before us was a 30-year-old man employed as a
senior manager earning a reasonable salary as apparently was his
wife.
[12] I have
considered all the submissions placed before us by the appellant's
counsel. There is no indication that the magistrate
misdirected
himself and, in my view, the sentence imposed by the magistrate does
not, given the facts of this matter, induce a
sense of shock and is
certainly not vastly disparate from any sentence which this court
would have imposed. In my view, the appellant,
having repeated this
offence three times on various hapless complainants within a short
space of time, cannot at this stage expect
any further leniency.
Indeed, it appears that his only motive could have been greed in that
he and his wife collectively earned
a reasonable income. Furthermore,
one would not expect a person holding the position of senior manager
to commit such offences.
[13] For these
reasons;
The appeal against sentence is dismissed
.
R. E. GRIFFITHS
JUDGE OF THE HIGH COURT
MAJIKI,
J. :
I agree
B. MAJIKI
JUDGE OF THE HIGH COURT
COUNSEL FOR
APPELLANT
: Mr Dingiswayo
INSTRUCTED
BY
: The Legal Aid Board
COUNSEL FOR
RESPONDENT
: Mr Pomolo
INSTRUCTED
BY
: Director of Public Prosecutions
HEARD
ON
: 28 OCTOBER 2016
DELIVERED
ON
: 01 DECEMBER 2016
[1]
Unreported Western Cape High Court 2010
(A237/2010) ZAWCHC 576 (26 November 2010)