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[2016] ZAGPPHC 1166
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Moagi v S (A448/2015) [2016] ZAGPPHC 1166 (26 October 2016)
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THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
26/10/2016
Case
number: A448/2015
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MZWAKHE
MOAGI
Appellant
and
The
State
Respondent
Heard:
17 October 2016
Delivered:
26 October 2016
Summary:
The question which is to be determined is whether the failure by the
trial court to forewarn the appellant about the application
of the
minimum sentencing regime in at the beginning of the hearing
constitutes an irregularity that warrants interference on appeal.
The
minimum sentencing governed by 51 (2) (a) (ii) of the
Criminal
Procedure Act of 1977
. The answer to the question is in the
affirmative and accordingly the failure is found to be an
irregularity. Principles of resentencing
by the Appeal Court
restated.
JUDGMENT
Molahlehi
J
Introduction
[1]This
is an appeal against the decision of the magistrate in terms of which
the appellant was found guilty, convicted and sentenced
as follows:
1. Count 1-robbery with
aggravating circumstances; - 20 years imprisonment;
2. Count 2- kidnapping; -
5 years imprisonment; and
3. Count 3- unlawful
possession of the firearm- 3 years imprisonment.
[2]
Following the above conviction, the appellant was effectively
sentenced to 28 years imprisonment. The appellant was also declared
unfit to possess a firearm. The leave to appeal was granted on the
petition by the Gauteng Division of the High Court and it only
concerns the sentence.
[3]
The question which this court has to answer is whether the failure by
the trial court to forewarn the appellant about the application
of
the minimum sentencing regime at the beginning of the hearing
constitutes an irregularity that warrants interference on appeal.
The
answer to the question is in the affirmative and accordingly the
failure is found to be an irregularity.
The
background facts
[4]
The appellant challenges the decision of the trial court in as far as
the sentence is concerned and on the ground that it erred
in the
following respect:
a. In finding that the
cumulative mitigating factors did not constitute substantial and
compelling circumstances;
b. The sentence is
disproportionate to the offence;
c. No weight was put on
the period that the appellant spent in custody awaiting trial;
d. Failed to order that
the sentence in count one should run concurrently with the sentence
on counts two and three.
[5]
The brief background to this matter is that the above charges were
instituted against the appellant and his co-accused. On the
day in
question, they approached the complainant whilst he was looking for
his GPS in the car he was driving. The registration
of the said car
is C[...] GP. After asking him what he was selling, the appellant and
his co-accused pointed a gun at him and ordered
him to get into the
back passenger seat of the car.
[6]
The appellant drove the car with his co-accused pointing the gun at
the complainant during the hi-jacking. The police who had
been
informed by a driver of another car chased after the high-jacked car
of the complainant. On realising that the police were
following them
the two jumped out of the car and ran away. They were followed up by
the police and one of them was arrested during
that chase.
[7]
In mitigation, it was submitted that the appellant conceded that he
had a previous conviction for robbery. He is unmarried,
has two
children with his fiancé and the third child with another
woman. It was also submitted that although a firearm was
used in the
robbery, no shots were discharged in the course of the robbery. He
was self- employed and was earning about R5000,
00 per month. He had
been in custody whilst awaiting trial for a period of nine months.
[8]
The other points submitted in mitigation are that the complainant was
not injured in the course of the commission of the offence
and that
the entire items taken during the robbery were returned to him.
The
legal principles
[9]
The approach to be adopted by a court on appeal in criminal matters
is well settled. The court will in general not readily interfere
with
the sentence of the trial court. It will, however, interfere with the
sentence where there is evidence of material misdirection
and or
where the sentence as stated in
S
v Malgas
,
[1]
is 'so
marked that it can properly be described as shocking, startling or
disturbingly inappropriate'.
[10]
It is trite that in considering the sentence to impose after
conviction, the trial court or the appeal court where it is enjoined
to consider the sentence afresh, has to have regard to the purpose of
sentencing, the nature of the crime, the circumstances of
the
offender and the interest of the society.
[11]
It is also trite that even in cases involving the prescribed minimum
sentence, the court has a discretion whether to impose
the prescribed
minimum sentence or to deviate therefrom. The court will, of course,
deviate from imposing the minimum sentence
where there exist
substantial and compelling circumstances.
[12]
The general and established approach to sentencing is that the court
should not adopt a piecemeal approach but should rather
have regard
to the totality of the facts and circumstances of the case. In
Langeni v S
(2011) JOL 27687
(ECG), the court held that:
"In determining the
appropriate sentence the totality of the appellant's conduct and the
consequences thereof must be considered.
The concerns of society had
to be evaluated against the facts of the appellant's conduct. This
would include the number of crimes
committed, the nature of the
crimes, whether they were planned or premeditated, the degree of
violence and attitude of the perpetrator,
the period over which they
were committed, the nature of the weapons used and injuries and any
other harm inflicted, whether the
victims posed a threat to the
appellant, and what the long term impact on them was, as a result of
the crimes. Guidance can certainly
be found in other cases but each
case has to be decided on its own facts taking into account the
overall needs of the society and
the circumstances of the accused."
Evaluation/
analysis
[13]
In my view, this matter turns around the question of whether the
sentence of the court is vitiated by the fact that the trial
court
failed to forewarn the appellant of the possibility that he may at
the end of the trial be faced with a sentence regulated
by the
minimum sentencing regime.
[14]
It has been held that the court has a duty to inform an accused
person at the beginning of the hearing that the provisions
of the
minimum sentence would be applicable unless it is clearly stated in
the charge sheet. This duty applies irrespective of
whether or not an
accused is legally represented. The duty to inform
an
accused person of the applicability of minimum sentence is an aspect
of a fair hearing and has its basis in the provisions of
section
35(3)(a) of the Constitution.
[2]
[15]
In dealing with the consequences of the failure by the trial court to
forewarn an accused person about the provisions of the
minimum
sentence, the court in S V Chowe 2010(1) SACR 141 at pages 22 and 23
per Mavundla J, held that:
"The fact that the
accused was legally represented, in my view does not take away the
need to inform the accused that such
Minimum Sentencing Act
dispensation would be relied upon for sentencing."
[16]
In
Mthimkhulu v State
the
SCA ( 210/2011)
[2011] ZASCA 178( 29 September 2016 the SCA per
Shongwe JA, referred with approval the decision in
Chowe
and held that:
"[9]
It is also important to note that the appellant was not warned
timeously or at all that the state would be relying on
the provisions
of the minimum sentence legislation. The provisions of
the minimum
sentence legislation and the applicability thereof were brought to
the attention of the appellant, for the very first
time, after
conviction and only when the sentencing proceedings were underway.
This too constituted a material irregularity. In
S
v Ndlovu
2003 (1) SACR 331
(SCA), Mpati
JA confirmed that where the state intends to rely on the sentencing
regime created by the Act, a fair trial will generally
require that
its intention be brought pertinently to the attention of the accused
at the outset of the trial, if not in the charge
sheet then in some
other form, so that the accused is placed in a position to appreciate
properly in good time the charge he or
she faces as well as its
possible consequences. What is at least required is that the accused
be given sufficient notice of the
state's intention to enable him to
conduct his defence properly. (See also
S
v Legoa
2003 (1) SACR 13
(SCA) and
S
v Makatu
2006 (2) SACR 582
(SCA)). This
certainly did not happen in this case. In
S
v Chowe
2010 (1) SACR 141
(GNP), the
court (Mavundla J with Legodi J concurring) went to the extent of
saying that the fact that the accused was legally
represented did not
take away the need to promptly inform him of the applicability of the
minimum sentence legislation and its
implications
[17]
The above approach was confirmed in
Machango
v S
(20344) (2014] ZASCA 179 (21
November 2014 where the SCA in dealing with the same issue quoted
with approval what was said in
S v
Makatu
2006(2) SACR 582 ( SCA) or
paragraph 7 where it was said that:
“
[7]
As a general rule, where the State charges an accused with an offence
governed by s 51(1) of the Act, such as premeditated murder,
it
should state this in the indictment. This rule is clearly neither
absolute nor inflexible. However, an accused faced with life
imprisonment - the most serious sentence that can be imposed - must
from the outset know what the implications and consequences
of the
charge are. Such knowledge inevitably dictates decisions made by an
accused, such as whether to conduct his or her own defence;
whether
to apply for legal aid; whether to testify; what witnesses to call
and any other factor that may affect his or her right
to a fair
trial. If during the course of a trial the State wishes to amend the
indictment it may apply to do so, subject to the
usual rules in
relation to prejudice.”
[18]
The SCA then stated the principle succinctly at paragraph 10 of its
judgment as follows:
"[10] It is settled
law that failure to forewarn or to mention the applicability of the
minimum sentence is a fatal irregularity
resulting in an unfair trial
in respect of sentence."
[19]
It is common cause that the trial court in the present matter failed
to forewarn the appellant that in case he was found guilty
as charged
the possibility exist that the court may impose the prescribed
minimum sentence. It then follows that the trial court
committed an
irregularity which warrants interference by this court. The
consequence of this finding is that this court is then
enjoined to
first set aside the sentence and thereafter consider the sentence
afresh.
[20]
Once the sentence is set aside as a result of the irregularity
arising from failure to forewarn the accused about the minimum
sentence regime, the court then has to conduct the inquiry regarding
the sentence as though the sentence was never imposed by the
trial
court. The enquiry as the SCA warned in
Machango
,
is not that of comparing or considering whether the sentence of the
trial court was fair and justified in the circumstances. The
SCA, in
that case, explained the meaning of considering the sentence afresh
as follows:
"Considering
a sentence afresh must ineluctably mean, setting aside of the
sentence of the trial court, inter alia, and conducting
an inquiry on
the sentence as if it had not been considered before. In other words,
the appeal court must disabuse itself of what
the trial court said in
respect of sentence - it must interrogate and adjudicate afresh the
triad in respect of sentence as stated
in
S
v Zinn
1969 (2) SA 537
(A) at 540G-H.
Its task would be to impose a sentence which it thinks is suitable in
the circumstances, without comparing it with
the one imposed by the
trial court. The full court erred in my view by stating that an
appeal court 'will only interfere when the
sentence imposed is
vitiated by an irregularity ... or when the sentence is shockingly
severe, disturbingly inappropriate and totally
out of proportion ...'
What the full court did was not considering the sentence afresh but
compared what it had in mind with what
was imposed."
[21]
I now turn to consider the appropriate sentence to impose in this
matter and I do so by applying the principles governing sentencing
which is set out above. In this respect, the personal circumstances
of the appellant are set out above and in summary, the following
are
important:
[22]
The appellant was at the time of the commission of the crime
relatively young men 35 years of age. He has three children. He
was
arrested at the scene of the crime before she could even benefit from
the proceeds of his crime. The complainant was not physically
harmed
and all his property was returned to him by the police. The appellant
is a second offender and thus in terms
s 51
(2) (a) (ii) of the
Criminal Procedure Act, one
of five of 1997, the minimum sentence to
be imposed is 20 years.
[23]
In my view, the most important factor in considering the sentence for
the offence committed by the appellant is that he was
denied a fair
trial by the failure of the trial court to forewarn him of the
prescribed minimum sentence that could be imposed
if he was to be
found guilty as charged.
[24]
The above needs to be weighed and balanced against the seriousness of
the offence. The hijacking took place in the context
where a gun was
used. There is no evidence that the complainant resisted when the
appellant and his co-accused instructed the complainant
to hand over
his car to them including the instruction that he should be out of
the driver's seat and get into the passenger seat.
There is no
evidence as to why the appellant and his co-accused kidnapped the
complainant including why the gun was continuously
pointed to the
complainant as they were driving away with him. There is no
explanation why the complainant was subjected to such
humiliation,
trauma and degradation. The only reason I can find is that the
treatment was intended to induce fear, anguish and
inferiority
directed at humiliating and debasing him.
[25]
There can be no dispute that hijacking of someone's car is a serious
offence. In
S v Somyalo
1996
(1) SACR 566
(CK) in dealing with this issue had the following to
say:
"The crime of armed
hijacking of motor vehicles has spread through our society like
malignant cancer. Although the courts cannot
hope to eradicate this
crime, it is their duty not only to punish such offenders severely,
but also to send out a clear message
to other would-be hijackers that
they can expect very little, if any, mercy from the courts. This
offence must rank near the top
of the ladder of serious crimes. What
makes it so heinous is that any resistance often leads to the fatal
shooting of the totally
innocent victim, as is borne out by the
numerous media reports of such fatalities. It is indeed a sorry state
of affairs that law-abiding
citizens no longer feel safe when using
their motor vehicles, and I have no doubt that the public requires
the courts to impose
robust sentences in cases of this nature. What
exacerbates the blameworthiness of the appellant is that he is a
policeman of seven
years standing. Instead of protecting members of
the public, he has persecuted them."
[26]
The argument by counsel for the appellant that the complainant was
not injured was dealt with by the court in Somyalo as follows:
"Counsel for the
appellant, Mr Bulube, has submitted that the fact that no one was
injured in the hijacking is a mitigating
factor, we do not, with
respect, agree with this submission, and in our opinion, it was
simply fortuitous that no one was injured.
If Stuurman had resisted
he would in all probability have been shot. The only mitigating
factor in our opinion is that the appellant
has no previous
convictions."
[27]
The same view was expressed in the unpublished judgment of
Loti
Makhele and Another
case number
A42/2015 where the court said:
"[24] In relation to
the contention that the complainant did not suffer any injury, the
appellant's counsel conceded that he
however in all probabilities
suffered psychological trauma. In any case, the fact that the
complainant suffered no physical injury
in the process is irrelevant
in the present matter as what is important is that the method used by
the appellant and his co
perpetrator was potentially injurious
to the complainant's life and limp."
[28]
In
Ncube and Others v S
2011
(2) SACR 471
(GSJ) Lamonmt J in dealing with the same issue of the
complainant not being injured during the robbery said:
"While no shots were
fired there was the potential for shots to have been fired. These
shots would have been fired with a view
to injuring people in return
for the opportunity to obtain money."
[29]
The other point raised on behalf of the appellant was that the period
he spent awaiting trial need to be taken into account
when
considering the sentence.
[30]
It is now accepted that the period that an accused person spent
awaiting trial is a factor to be taken into account when imposing
a
sentence. It is no longer regarded as a 'mathematical calculation'
that requires it to be deducted from the period of the sentence.
It
was in this respect stated in
S v
Radebe,
2013 (2) SACR 165
(SCA) at [14]
by the SCA that the period spent detention whilst awaiting trial is a
factor to be taken into account when determining
an effective
sentence. In this respect the SCA stated the approach to adopt as
follows:
"[14]
A better approach, in my view, is that the period in detention pre
sentencing is but one of the factors that should
be taken into
account in determining whether the effective period of imprisonment
to be imposed is justified: whether it is proportionate
to the crime
committed. Such an approach would take into account the conditions
affecting the accused in detention and the reason
for a prolonged
period of detention. And accordingly, in determining, in respect of
the charge of robbery with aggravating circumstances,
whether
substantial and compelling circumstances warrant a lesser sentence
than that prescribed by the Criminal Law Amendment Act
105 of 1997
(15 years' imprisonment for robbery), the test is not whether on its
own that period of detention constitutes a substantial
or compelling
circumstance, but whether the effective sentence proposed is
proportionate to the crime or crimes committed: whether
the sentence
in all the circumstances, including the period spent in detention
prior to conviction and sentencing, is a just one.”
[3]
[31]
As concerning the calculation of the weight to be given to the period
spent by an accused awaiting trial the court in
Radebe
held
that a mechanical approach should be avoided but that rather the
circumstances of the individual accused must be used in determining
the extent to which the sentence should be reduced by the period of
detention whilst awaiting trial.
[4]
[32]
In my view, regard being had to the weapon used in the hijacking and
the potential to cause serious and or fatal harm with
it to the
complaint, and the impact that the offence has on the society, the
period of the detention in the present case has very
little weight.
The failure to take responsibility for his conduct takes away any
sympathy that the court may have had for the appellant
regarding the
period of the detention whilst awaiting trial.
[33]
Having regard to the above discussion, I make the following findings:
i. The silence of the
charge sheet concerning minimum sentence and the failure by the trial
court to forewarn the appellant about
reliance on the provisions of s
51 (2) of the CPA at the beginning of the trial constitutes
substantial and compelling circumstances.
ii. The period of
detention of the appellant whilst awaiting trial does not serve as
substantial and compelling circumstances.
iii. The seriousness of
offence, public interest, the failure of the appellant to take
responsibility for his conduct and the deprivation
of the complaint
of his constitutional rights weighs heavily weighs in favour of
imposing a prison sentence against the appellant
iv. A fair and just
sentence for the appellant has to be imprisonment.
v. The sentence to be
imposed is that which less than the prescribed minimum.
Order
[34]
In the circumstances the following order is made:
1.
The appeal against the sentence imposed on the appellant by the court
a quo is upheld.
2.
The order of the trial court is set aside and the following order
relating to the sentence of the appellant, Mr Mzwakhe Moagi,
is made:
i. For count 1, relating
to robbery with aggravating circumstances, the appellant is sentenced
to 14 years imprisonment.
ii. For count 2, relating
to kidnapping of the complainant, the appellant is sentenced to 5
years imprisonment.
iii. For count 3,
relating to possession of a firearm, the appellant is sentenced to 3
years imprisonment.
iv. The appellant will
effectively serve 12 years imprisonment.
3.
The sentence is antedated to 14 October 2014, the date on which the
trial court imposed its sentence.
4.
The appellant is in terms of s 103 (1) of the Firearm Control Act 60
of 2000, declared to be unfit to possess a firearm.
______________________
E
Molahleni
Acting
Judge of the High Court, Pretoria
I
agree and it is so ordered
A
J Senyats
Acting
Judge of the High Court, Pretoria
Appearances
For
the Appellant: MR
MB KGAGARA
Instructed
by:
For
the Respondent: ADV
K VAN RENSBURG
[1]
[2001]
ZASCA 30
;
2001 (1) SACR 469
(SCA)
[2]
2
Section 35 (3) (a) of the Constitution reads as follows: "Every
accused person has a right to a fair trial, which includes
the
right-
a.
to be informed of the charge with sufficient detail to answer it."
[3]
'The
previous approach which seems to have been informed by the Canadian
approach was based on 'rule of thumb' that imprisonment
while
awaiting trial is the equivalent of a sentence of twice that
length." This approach was rejected Goldstein J in
S
v Vilakazi
2000
(1) SACR 140
(W). In that case, the court held that: 'In this
regard, I do not overlook the
dictum
of
Schutz J (as he then was) in
S
v Stephen
and
Another
[1994 (2) SACR 163
(W)]. I am not aware of this
dictum
having
been universally followed in our courts. It is also not clear to
what extent the learned Judge applied the Canadian rule.
I think too
with respect that it is unsafe to rely on Canadian authority which
may well be grounded in the special circumstances
of that country.
(The report of
Gravino
quoted
in
Stephen
's
judgment is not that of a reasoned judgment, but in a few lines
records the facts of the case and a comment of Montgomery J
that "it
is a recognised 'rule of thumb' that imprisonment while awaiting
trial is the equivalent of a sentence of twice
that length". No
reasons are given for the rule.) Imprisonment in our country,
whether awaiting trial or after sentence,
constitutes, as no doubt
it always has done here, a far-reaching and all-encompassing
deprivation of liberty and subjects the
prisoner in many if not all
cases to boredom, indignity, loneliness, danger, lack of privacy and
quite profound suffering and
loss... I would be loathe in the
absence of clear evidence to decide that the miseries of the
awaiting-trial period are more
oppressive than those of the
post-sentence ones.'
[4]
See
paragraph [13]
Radebe
's
judgment supra