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[2016] ZAGPPHC 331
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Lindokuhle v S (A553/2015) [2016] ZAGPPHC 331 (29 April 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
29/4/16
CASE NO: A553/2015
Not reportable
Not of interest to
other judges
In the matter between:
NGOBESE
LINDOKUHLE APPELLANT
and
STATE
RESPONDENT
JUDGMENT
KUBUSHI, J
INTRODUCTION
[1] The appeal before us
is on sentence only. The appellant was charged on two counts of
robbery with aggravating circumstances
in that a firearm was used in
the robbery. The second count is that of attempted murder in that a
complainant, Mr van den Berg,
was shot at by the appellant. The
charge of robbery with aggravating circumstances was read with the
provisions of Part II of Schedule
2 of s 51 (2)
(a)
of the
Criminal Law Amendment Act No 105 of 1997 ("the Act"),
which provides for a minimum sentence of fifteen (15) years
imprisonment in a case of a first offender. The charge of attempted
murder was read with the provisions of Part IV of Schedule
2 of s 51
(2)
(c)
of the Act which provides for a sentence of five (5)
years imprisonment in case of a first offender.
[2] The appellant pleaded
not guilty to the two charges. In his plea explanation he stated that
at the time of the incident he was
in the company of two other
persons who perpetrated the two offences and that he did not take
part in the commission of the offences.
He stated that he was sitting
in the motor vehicle when the two persons who perpetrated the
offences entered the Coronation store
in Northmead Benoni, to buy
something and they came back running. The trial court found him
guilty on the two counts and having
found no substantial and
compelling circumstances, sentenced him to fifteen (15) years
imprisonment on count 1 and five (5) years
imprisonment on count 2.
He was also declared unfit to possess a firearm.
[3] The appellant applied
and was granted leave to appeal on petition to the High Court on
sentence only. He is before us appealing
the sentence only.
[4] The appellant applied
for condonation for the late filing of heads of argument. There is no
opposition and the application is
granted.
[5] The appellant was in
custody for the duration of the trial and he is still in custody.
FACTUAL BACKGROUND
[6] A brief synopsis of
the facts that led to the conviction of the appellant is necessary.
The respondent's version is that on
the day in question three men
entered a certain store known as Coronation and at gun point robbed
some of the workers of their
cell phones. One of the customers was
robbed of her cell phone, her bank cards and bank cards belonging to
her mother and her husband.
Another customer who was parked outside
the store saw the three men exiting the store in haste. He gave chase
and apprehended one
of the men who is now the appellant before us.
THE EVIDENCE
[7] The respondent's
evidence was presented by four witnesses as follows: Ms Chiloane, a
worker at Coronation store was one of the
workers who were in the
shop when the three men entered the shop. She was also one of the
three workers who were working behind
the counter in the kitchen
section of the store. Two of the men approached her asking for food.
She referred them to the cashier
counter to pay first before she
could give them the food. Instead of going to pay, the two men
ordered everyone to lie down. She
and another worker did not
understand the language the two men were using and did not lie down
as ordered. This resulted in one
of the two men, who was wearing a
blue t-shirt, pulling out a firearm and pointed it at them. They all
lay down. Ms Chiloane could
see two white customers who were also
lying on the floor. Ms Chiloane and the other workers were ordered to
hand over their cell
phones which they did. Her cell phone was later
recovered by the police and handed back to her but the screen was
damaged. She
was able to identify their assailants, in particular the
appellant who was wearing a blue t-shirt on the day in question. She
had
a good look at them for about three to four minutes. She
accompanied the two men, who wanted to buy food, to the cashier
counter
where they were to pay for the food. The men in the blue
t-shirt was one of these two men. When the suspects had first ordered
them to lie down she did not respond immediately as she did not
understand what they were saying and, as such, she had enough time
to
see the appellant and was able to identify him. She could also
remember that one of the suspects, the appellant before us, was
wearing a blue t shirt on that day.
[8] Ms Prinsloo, one of
the two customers who Ms Chiloane saw lying on the floor. On the day
in question she went into the store,
that is, Coronation store, to
buy something. As she entered someone, a man, stopped her and said to
her 'this is a hold up'. The
man pushed her with the knuckles of his
hand towards the back of the shop and she was shown a black and
silver revolver. She was
ordered to lie on the floor and was robbed
of her purse which contained her cell phone, bank cards and other
personal documents.
She was able to quickly remove her identity
document. The cell phone was later returned to her by the police but
the bank cards
were never recovered. She could not identify her
assailants and could only remember that one of them wore a blue
t-shirt.
[9] Mr van den Berg, a
police reservist, had stopped outside the store in his Ford Bantam
motor vehicle, waiting for his worker
who had gone into the store to
buy something to drink. He saw the three suspects as they ran out of
the shop and climbed into a
white Ford Dash motor vehicle which was
parked outside the shop. The owner of the store, Mr Murray Omala,
came running out of the
shop following the three men and reported to
Mr van den Berg that the three men running to the white Ford Dash
motor vehicle had
robbed them. Mr van den Berg immediately followed
the Ford Dash across the town of Benoni keeping it in sight all the
time until
the motor vehicle stopped. Several shots were fired at Mr
van den Berg during the chase but missed him. These shots were
according
to Mr van den Berg fired by the suspect in the now famous
blue t-shirt. Mr van den Berg shot back at the Ford Dash, when it was
safe to do so, and managed to hit one of the tyres of the Ford Dash.
Mr van den Berg was joined in the chase by Mr Bookhalane,
a Metro
Police Officer, who was at that time driving an unmarked motor
vehicle along Snake Road in Benoni. Mr Bookhalane saw the
two motor
vehicles chasing each other and also gave chase. What attracted him
to the motor vehicles was that the one in front was
driving in a
zigzag fashion between other motor vehicles and even skipped a red
robot. The Ford Dash eventually stopped on a gravel
road and its
occupants alighted and fled into the long grass. The appellant was
found sitting in the motor vehicle. It seems that
he was hit by one
of the bullets in the lower back. On the rear seat of the motor
vehicle there were a lot of coins, cigarettes
and cell phones. The
police came and arrested the appellant.
[10] It is the evidence
of Mr van den Berg that when he saw the three men run out of the
store to the waiting white Ford Dash motor
vehicle, he wrote down the
motor vehicle's plate numbers. He was able to identify the three
suspects by the clothes they were wearing
on that day. One of the
suspects, who is the appellant before us, was dressed in a blue
t-shirt with white stripes and a blue-denim;
the other two suspects
were dressed in khaki colours. The one with the blue t-shirt was
carrying a light blue bag which was found
in the Ford Dash when the
appellant was apprehended.
[11] The appellant in his
evidence insisted that he had nothing to do with the commission of
the offences. He did not go into the
store, he was outside waiting
for his colleagues to come back and on their return they had a little
bag and cigarettes. As the
motor vehicle they were in, sped off, his
colleagues kept looking behind them. The motor vehicle went through
several red robots
and at one point a gun went off from outside the
motor vehicle which resulted in him being hit in the lower back. He
confirmed
that on that day he was wearing a blue t-shirt with white
stripes as defined by respondent's witnesses.
GROUNDS OF APPEAL
[12] The appellant in his
heads of argument raises the following grounds of appeal:
12.1. That the sentence
imposed (20 years imprisonment) is inappropriate and induces a sense
of shock.
12.2. That the trial
court overemphasised the seriousness of the offence;
12.3. That the trial
court erred in finding that there are no substantial and compelling
circumstances justifying a departure from
imposing the prescribed
sentences;
12.4. That even though a
firearm was used during the robbery no one was shot and/or injured,
the items have been recovered and therefore
twenty (20) years
imprisonment is in the circumstances inappropriate and induces a
sense of shock.
THE ISSUE
[13] The issue before us
is whether the effective sentence of twenty (20) years imprisonment
imposed by the trial court is inappropriate
and induces a sense of
shock.
THE LAW
[14] It has been held
that in every appeal against sentence whether imposed by a magistrate
or judge, the court hearing the appeal:
a)
should
be guided by the principle that punishment is pre-eminently a matter
for the discretion of the trial court; and
b)
should
be careful not to erode such discretion hence the further principle
that the sentence should only be altered if the discretion
has not
been judicially and properly exercised.
[1]
It is trite that the test under
(b)
is
whether the sentence is vitiated by irregularity or misdirection or
is disturbingly inappropriate.
[2]
AD SENTENCE
[15] Having found the
appellant guilty, the trial court in sentencing him applied the
provisions of the Act. In terms of the Act,
the trial court was
obliged to sentence the appellant, as a first offender, to
imprisonment for a period of not less than fifteen
(15) years in
respect of the conviction of robbery with aggravating circumstances
and to a period of five (5) years imprisonment
in respect of the
conviction of attempted murder, unless it found that substantial and
compelling circumstances which justified
the imposition of a lesser
sentence exist. The trial court found such circumstances not to exist
and correctly so, imposed prescribed
sentences.
[16] The contention by
the appellant is that the trial court erred in finding that there are
no substantial and compelling circumstances
justifying a departure
from imposing the prescribed minimum sentences.
[17] In determining
whether substantial and compelling circumstances which may justify
the imposition of a lesser sentence exist,
a court has to consider
the well known traditional triad of factors relevant to sentence
- the crime, the criminal and the
needs of society.
[3]
[18] It is common cause
that, in this instance, the trial court did consider the triad of
factors traditionally considered when
imposing sentence, in coming to
the conclusion that there are no substantial and compelling
circumstances in this instance.
[19] The trial court
considered the gravity of the offences and the interest of society in
that the workers and customers at the
shop were robbed at gun point
and, as such, traumatised in that they did not know whether they were
going to be shot at or not.
By shooting at Mr van den Berg as he did
during the chase, Mr van den Berg could have been hit by a bullet and
seriously injured
and/or killed. The random manner in which the
appellant shot at Mr van den Berg in total disregard of the members
of the community
- members of the community and perhaps children
could have been hit by stray bullets.
[20] The trial court also
considered the personal circumstances of the appellant in mitigation
of sentence. The following circumstances
can be gleaned from the
record: the appellant was 31 years old at the time of sentencing; he
has three children aged 6, 4 and 2
years of age respectively; at the
time of arrest he was a taxi driver earning R2 800
per
month;
he was maintaining the children, his mother and three (3) siblings;
very importantly he was a first offender; even though
it was of his
own doing, he was injured during the shooting; it appears that a
substantial portion of the goods stolen were recovered
- the record
does not state which items were not recovered, if any; none of the
persons at the scene of the robbery were assaulted
or sustained
injuries, as is usually the case - only threats were used to induce
them to submit when their property was taken;
he spent almost one
year in custody awaiting trial; Mr van den Berg who was chasing them
was shot at during the chase but sustained
no injuries; there is no
evidence that any of the members of the public was hit by a stray
bullet pursuant to the random shooting
by the appellant; and there is
no evidence on record that the appellant was incapable of being
rehabilitated.
[21] The following
factors in aggravation of sentence can be gleaned from the record:
the nature and gravity of the offences; the
prevalence of the
offences; the robbery was premeditated and planned; the appellant
shows no remorse; the appellant and his colleagues
acted in total
disregard of the law by robbing the store and its customers in broad
day light and openly shooting Mr van den Berg
throughout the streets
of Benoni, thereby endangering the lives of innocent members of the
community; and the appellant showed
no respect of human life.
[22] It is my opinion
that the trial court was correct to have found substantial and
compelling circumstances not to exist in this
instance. The personal
circumstances of the appellant whether individually or cumulatively
viewed, do not warrant any scrutiny.
The gravity of the offences and
aggravating factors as well as the societal needs, are, in the
circumstances, overwhelming.
[23] In argument before
us the appellant's counsel submitted that the effective period of
twenty (20) years imposed by the trial
court is very long and thus
induces a sense of shock and requires to be tempered with by the
appeal court. The submission is that
the two offences of robbery and
attempted murder are closely linked as to time and proximity and
should have been taken together
for purposes of sentence or the two
sentences should have been ordered to run concurrently. I agree.
[24] While, it is so
that, individual sentences are not to be interfered with where there
is no misdirection by the sentencing court,
however, it is my view
that, in the circumstances of this instance, twenty (20) years'
imprisonment is too excessive. It induces
a sense of shock and would
not serve the interest of justice. It is my view that the trial court
should have ordered the sentences
to run concurrently. I would, as a
result, propose that an order be made for the two sentences to run
concurrently.
ORDER
[25] I would in the
circumstances propose the following order be made:
1. The convictions are
confirmed.
2. The appeal against
sentence is upheld.
3. The sentences imposed
by the trial court are set aside and substituted with the following:
"1. Count 1: the
accused is sentenced to fifteen (15) years imprisonment.
2. Count 2: the accused
is sentenced to five (5) years imprisonment.
3.
The two sentences are to run concurrently.
4.
The effective period should be fifteen (15) years imprisonment.
5. In terms of section
103 (1) of the Firearms Act 60 of 2000, no determination is made, and
the accused will remain unfit to possess
a firearm"
4. The sentence is, in
terms of
section 282
of the
Criminal Procedure Act 51 of 1977
ante
dated to 13 February 2014.
____________________
E.M. KUBUSHI
Judge of the High
Court
I concur and it is so
ordered
___________________
P.M. MABUSE
Judge of the High
Court
Appearances:
On behalf of the
appellant:
Adv.
Matlapeng Instructed by:
PRETORIA JUSTICE
CENTRE
2nd Floor FNB Building
206 Church Street
PRETORIA 0001
On behalf of the
respondent:
Adv. M. J. Makgwatha
Instructed by :
DIRECTOR OF PUBLIC
PROSECUTIONS
Presidential Building
28 Church Square
PRETORIA 0001
[1]
See S v Rabie 1975 (4) SA 855 (A).
[2]
See R v Mapumolo and Others
1920 AD 56
at 57.
[3]
S v Malgas
2001 (1) SACR 469
(SCA) at 482C.