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[2016] ZAGPPHC 849
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Sekwati v S (A445/2015) [2016] ZAGPPHC 849 (14 September 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Not
reportable
Not
of interest to other Judges
DATE:
14/9/16
CASE
NO:
A445/2015
In
the matter between:
CHARLES
SEAPARO
SEKWATI
Appellant
and
THE
STATE
Respondent
J
U D G M E N T
MAKGOKA,
J
[1]
This is an appeal against sentence. The appellant was convicted by a
Judge of this Division (the trial court) of three counts
of
housebreaking with intention to rob and robbery with aggravating
circumstances. Those were counts 1, 5 and 8. He was acquitted
of the
rest of the initial eight counts he faced. Counts 1 and 5 were
subject to the minimum sentence in terms of s 51(1) of the
Criminal
Law Amendment Act 105 of 1997 (the Amendment Act), in terms of which
the minimum sentence of 15 years' imprisonment had
to be imposed,
unless the court found substantial and compelling circumstances to
exist, in which event, in terms of s 51(3)
of the Amendment
Act, lesser sentences could be imposed.
[2]
The trial court found no such circumstances, and imposed the minimum
sentences of 15 years' imprisonment in respect of each
of counts 1
and 5. In respect of count 1, an additional 5 years' imprisonment was
imposed. In respect of count 8, a sentence of
15 years' imprisonment
was also imposed, purportedly in terms of s 51(1) of the Amendment
Act. Thus, the appellant was sentenced
to 50 years' imprisonment.
However, with the order of concurrency, he was sentenced to an
effective 35 years' imprisonment. The
appellant does not join issue
with the sentence imposed in respect of count 5, and the conclusion
of the trial court that there
are no substantial and compelling
circumstances to warrant the imposition of lesser sentences.
[3]
I briefly state the factual background and the specific facts which
culminated in the conviction of the appellant in respect
of count 1.
The appellant was part of a gang which broke into private residences
around Pretoria suburbs in May and August 2008.
The break-ins
occurred in the early hours of the morning, during which the
occupants were robbed of valuable possessions. I shall
briefly
consider only the circumstances of the robbery in count 1, for the
simple reason that there is no challenge to the sentence
imposed in
respect of count 5. With regard to count 8, I intend to set aside the
sentence of 15 years for the reason that the appellant
was not
fore-warned that the State intended to invoke the minimum sentence as
prescribed in s 51(1) of the Amendment Act. As a
result, little
purpose would be served by setting out the circumstances of the
robberies in counts 5 and 8, save that in respect
of count 8, there
is a residual issue, to which I shall revert.
[4]
The facts in count 1 are these. During the early hours of 21 August
2008, the complainant, a 57 year old woman, woke up to the
presence
of three assailants in her bedroom, who were all armed with firearms.
The appellant was one of them. The complainant lived
with her 38 year
old son who suffers from a hearing impairment. She was pointed with a
firearm and her hands were tied with a belt.
The assailants demanded
firearms from her. Her son, who was asleep in another bedroom,
was dragged into her bedroom. He was
tied up and his mouth was closed
by a foreign object. They were both assaulted with open hands by the
assailants, while she was
also threatened with a screwdriver. She was
also assaulted with the butt of a firearm, with assailants demanding
the car keys to
her motor vehicle, a Ford Focus, which they mentioned
by name, suggesting that they had previously kept her under
surveillance.
While the appellant and another assailant ransacked the
house, the third assailant raped the complainant in full view of her
son.
The complainant sustained injuries to her head and her son
sustained a swollen eye. Her motor vehicle, as well as several
household
items, was stolen. The motor vehicle was recovered later.
[5]
The appellant's complaint against the sentence imposed in respect of
count 1 is three-pronged. First, that the trial court over-emphasised
the seriousness of the offence by exceeding the prescribed minimum
sentence with 5 years. Second, that he was prejudiced by not
being
fore-warned that the trial court contemplated exceeding the
prescribed minimum sentence of 15 years' imprisonment. Third,
that
the trial court did not properly motivate the reasons for that
conclusion. There is no merit in any of the grounds.
The second
ground can be disposed of summarily. The short answer to the
contention that the appellant was entitled to be fore-warned
that the
trial court contemplated a sentence in excess of the prescribed
minimum, is S
v Mthembu
2012 (1) SACR 517
(SCA) paras 14 and
15. There, the Supreme Court of Appeal rejected a similar contention.
There remain the first and third contentions,
which, in my view, can
conveniently be considered together.
[6]
In imposing the sentence in count 1, the trial court considered the
circumstances of the commission of the offence, and the
trauma that
the complainant suffered. The trauma, the court noted, was still
apparent during the court proceedings, some years
after the incident.
The complainant was receiving counseling at the time of the trial.
The trial court also took into consideration
the fact that the
complainant was raped in the course of the robbery, although not by
the appellant. It also noted that the complainant
and her deaf son
were terrorized by the appellant and his co-assailants for
approximately two hours. On the above considerations,
among others,
the trial court was driven to the conclusion that a sentence
exceeding the prescribed minimum was warranted.
[7]
I do not find any misdirection in the manner the trial court
considered the sentence in respect of count 1. The trial court
did
not elevate the rape as the determining factor in coming to 20 years.
It considered a number of factors, some of which I have
highlighted
above - all admittedly aggravating, including the on-going trauma
that the complainant suffered. There is no denying
that of the three
counts, count 1 had much more aggravating factors, even discounting
the rape. The rape itself, while not committed
by the appellant, is
part of the circumstances accompanying the robbery. It can simply not
be wished away. It is therefore clear
from the trial court's
reasoning why it differentiated the sentence from those in counts 5
and 8. I therefore take a view that
the criticism of the trial
court's approach in this regard is not warranted. Sitting as a trial
court, I would probably not have
exceeded the prescribed minimum
sentence of 15 years' imprisonment. However, that is not the test.
[8]
It is perhaps necessary to restate the trite principles governing an
appeal court's power to interfere in the sentence imposed
by a trial
court. The imposition of sentence is pre-eminently a matter within
the judicious discretion of a trial court. The appeal
court's power
to interfere with a sentence is circumscribed to instances where the
sentence is vitiated by an irregularity, misdirection
or where there
is a striking disparity between the sentence and that which the
appeal court would have imposed had it been the
trial court. See
generally: S
v
Petkar
1988 (3) SA 571
(A); S
v Snyder
1982 (2) SA 694
(A);
S
v
Sadler
2000 (1) SACR 331
(SCA);
Director
of Public Prosecutions, KZN v P
2006 (1) SACR 243
(SCA)
para 10.
[9]
As to the nature of the misdirection which entitles a court of appeal
to interfere, the following was stated in S
v Pillay
1977 (4)
SA 531
(A) at 535E-F:
'Now
the word "misdirection" in the present context simply means
an error committed by the Court in determining or applying
the facts
for assessing the appropriate sentence. As the essential inquiry in
an appeal against sentence, however, is not whether
the sentence was
right or wrong, but whether the Court in imposing it exercised its
discretion properly and judicially, a mere
misdirection is no by
itself sufficient to entitled the Appeal Court to interfere with the
sentence; it must be of such a nature,
degree, or seriousness that is
shows, directly or inferential, that the Court did not exercise its
discretion at all or exercised
it improperly or unreasonably. Such
misdirection is usually and conveniently termed one that vitiates the
Court's decision on sentence'
[10]
The upshot of the principles referred to above is that the trial
court's exercise of a discretion in imposing a sentence is
not easily
disturbed, unless in the proscribed instances. In the present case, I
do not find any misdirection or irregularity on
the part of the trial
court in how it approached the sentence. The trial court closely
reasoned its conclusion for exceeding the
prescribed sentence. To my
mind, none of the considerations mentioned in the authorities
referred to above as constituting a basis
for interference, are
present here. I would therefore not interfere with that sentence.
[11]
With regard to count 8, there is a related preliminary issue. The
indictment mentioned the use of a pair of scissors during
the
robbery. The evidence established that the complainant in that count
was only threatened to keep quiet, otherwise she would
be shot. This
aspect was not raised by the appellant in either his application for
leave to appeal, the notice of appeal, heads
of argument or oral
submissions before us. It was raised by a member of this court during
the hearing as possibly being relevant
to whether the appellant was
properly convicted of robbery with aggravating circumstances. In my
view, nothing turns on this aspect.
In terms of s 1(iii) of the
Criminal Procedure Act 51 of 1977 (the Act) a threat to inflict
serious bodily injury constitutes
aggravating circumstance. See
Ex
parte
Minister of Justice: In
Re:
R
v
Gesa;
R
v
de Jongh
1959 (1) SA 234
(A). The conviction in
respect of count 8 is therefore in order, to the extent that whatever
defect in the indictment had been
cured by evidence in terms of s 88
of the Act which provides that a defect in a charge may be cured by
evidence. See also S
v Kuse
1990 (1) SACR 191
(E) at
196g-h.
[12]
I turn now to the substantive contention in respect of count 8. The
indictment made no reference to the State's intention to
rely on the
provisions of s 51(1) of the Amendment Act. For that reason alone,
the trial court was not competent to impose a sentence
in terms of
that section1 As part of the constitutional right to a fair trial it
is now established that, generally, where
the state wishes to
invoke the provisions of section 51 of the Act the provisions of
section 51 must be brought to the attention
of the accused in such a
way that the charge can be properly met before conviction. This means
that from the outset of the trial
the accused must be placed in a
position to appreciate properly the charge that he faces as well as
its possible consequences.
See S
v Legoa
2003 (1) SACR 1
3
(SCA) para 23;
S v Ndlovu
2003 (1) SACR 331
(SCA) para 12;
S v Tshabalala
[2007] ZAGPHC 168
;
2008 (1) SACR 486
(T) para 14; S
v
Motlhakane;
S
v
Sehlake;
S
v
Van Heerden
van Oudshoorn
2011 (1) SACR 510
(GNP) para 3. None of the above prescripts were followed in the
present case, hence the sentence imposed was incompetent, and should
be set aside and replaced with an appropriate sentence outside the
purview of s 51(1) of the Amendment Act.
[13]
Lastly, as a general ground of appeal, the appellant contends that
the trial court failed to take into consideration the cumulative
effect of the sentences imposed. This argument has somewhat become
academic, since I intend to interfere in the sentence imposed
by the
trial court. It is a salutary practice that if an accused is
sentenced in respect of two or more related offences, a sentencing
court should have regard to the cumulative effect of the sentences
imposed in order to ensure that the total sentence is not
disproportionate
to the accused's blameworthiness in relation to the
offences in respect of which the accused has to be sentenced. See S
v
Sevenster
2002 (2) SACR 400
(C). It must be emphasised that in
the present case, the three offences in respect of which the
appellant was convicted, are totally
unrelated. They are separate in
terms of time and space. However, that does not mean that the
cumulative effect of the sentences
should not be considered. In the
present case, the total sentence of imprisonment I intend imposing is
45 years, but effective
25 years, with the order of concurrency.
[14]
A court should not shy away from imposing an appropriate sentence on
the fear of being accused of meting out a so-called Methuselah
sentence. If the specific facts of the case call for such sentence as
an appropriate one, it should be imposed. Indeed, there are
cases
where one cannot do otherwise but impose such a sentence. This is
especially with multiple, unrelated, counts. The Supreme
Court of
Appeal has confirmed such sentences on appeal to it, in appropriate
cases. See for example, S
v Mhlakaza
and Another
1997
(1) SACR 515
(SCA). In any event, an effective
sentence of 25 years' imprisonment, which I propose in the present
case, while lengthy, can hardly
be described as a Methuselah type. In
my view, it reflects the seriousness of the offences, while balancing
that with the appellant's
personal circumstances and adequately
expressing the community's indignation at the nature of the
crimes.
[15]
To summarise. In respect of count 1, I dismiss the appeal against the
sentence. In respect of count 5, where there is no appeal
against the
sentence, the sentence of 15 years' imprisonment should be retained.
In respect of count 8, I uphold the appeal against
the sentence of 15
years' imprisonment and replace it with one of 10 years'
imprisonment. 10 years of the sentence in respect of
count 5 should
be ordered to run concurrently with the sentence imposed in respect
of count 1. The whole of the substituted sentence
in respect of count
8 should be ordered to run concurrently with the sentence imposed in
respect of count 1. Thus, the effective
period of imprisonment is 25
years.
[16]
The following order is made:
1.
The appeal against the sentence imposed in count 1 is dismissed;
2.
The sentence of 15 years' imprisonment imposed in count 5 is
retained;
3.
The appeal against the sentence imposed in respect of count 8 is
upheld, and that sentence is set
aside and in its stead the following
sentence is substituted:
'The
accused is sentenced to 10 years imprisonment'
4.
It is ordered that 5 years of the sentence in count 5, and the whole
of the substituted sentence
of 10 years in respect of count 8, are to
run concurrently with the sentence in count 1.
The
effective
period
of imprisonment
is therefore
25
years.
5.
In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
, the
substituted sentence is ante-dated to 14 October 2011, being the date
on which the appellant was sentenced.
___________________________
T.M.
Makgoka
Judge
of the High Court
I
agree
___________________________
Z.
Carelse
Judge
of the High Court
I
agree
___________________________
N.
Ranchod
Judge
of the High Court
Judgment
delivered: 14 September
2016
Appearances
For
the Appellant:
Advocate F Van As
Instructed
by:
Pretoria Justice
Centre, Pretoria
For
the Respondent: Adv. A.J. Rossouw
Instructed
by:
Director of Public
Prosecutions, Pretoria