About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 94
|
|
S v Blignaut (588/06) [2007] ZASCA 94; 2008 (1) SACR 78 (SCA) (30 August 2007)
Links to summary
REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case Number :
588 / 06
In the matter between
J BLIGNAUT
.......................
APPELLANT
and
THE STATE
.......................
RESPONDENT
Coram
:
MTHIYANE, HEHER and PONNAN JJA
Date
of hearing
: 16 AUGUST 2007
Date of delivery
: 30 AUGUST 2007
SUMMARY
Sentencing
– minimum sentence – substantial and compelling
circumstances – misdirection by trial court
Neutral citation:
This judgment may be referred to as :
Blignaut
v
The
State
[2007] SCA 94 (RSA)
JUDGMENT
____________________________________________________________________
PONNAN JA
[1] The appellant, a first offender, was convicted,
pursuant to his guilty plea, by the Port Elizabeth Regional Court on
charges of
robbery with aggravating circumstances and kidnapping. In
terms of s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997
(the
Act), a regional court is obliged to sentence a first offender
on a conviction of the former offence to a term of imprisonment of
not less than 15 years. A lesser sentence may only be imposed if
substantial and compelling circumstances within the meaning of that
expression are found to exist justifying the imposition of such
lesser sentence (s 51(3)(a)). The regional magistrate, being of the
view that no such circumstances existed, thus imposed a sentence of
15 years’ imprisonment on the robbery count. On the kidnapping,
the appellant was sentenced to a term of imprisonment for a period of
5 years which was ordered to run concurrently with the 15 years
imposed on the robbery. An appeal to the Grahamstown High Court
(Erasmus J, Maqubela AJ) against the finding that no such
circumstances
existed proved unsuccessful and the further appeal to
this Court is with its leave.
[2] The facts and circumstances relating to the
conviction can be gleaned from the appellant’s written
statement adduced in
amplification of his plea, which reads:
‘
My family had
been going through a financial crisis for quite some time. I had a
lot of debt at the time. In April 2001 I had lost
my job after I had
an argument with my supervisor. About a month later my wife got
retrenched from her job. Both of us were unemployed
at that stage. I
used the money which I had received from my provident fund to pay
most of our debts. However I still owed Credit
Indemnity (a cash
loans company) R3 000.
By January 2002 all of our monies were
finished. My wife started complaining about money that we didn’t
have. My parents in
law by whom we were living, complained to my wife
that we were not paying rent. She in turn complained to me. I was
getting tired
of all the moaning and groaning about money and food
that was not there. There was no income in the household. I then
started drinking
alcohol regularly. Previously I drank occasionally
on weekends. I started drinking a lot with my friends. This continued
for a long
time. About a week before the incident, I decided to break
away from the pressure and decided to go and stay with my wife’s
cousin in extension 29 in Bethelsdorp. I left the Thursday and went
back home on the Saturday. When I got home, it was the same story
about money and food shortages in the house. It continued for the
Sunday and Monday. I got to the stage where I could not cope anymore.
On that Monday I decided to go for a walk. I walked from our house in
Extension 21 toward Arcadia. At the Shopping Complex in Arcadia,
I
picked up a shoe box, which I intended to use to hold all of my radio
cassettes. I then walked further through West End toward
Cleary Park.
I walked through the park near Machu Primary School where I picked up
a motor with the wires attached to it, that belongs
to a washing
machine. Our washing machine had recently broken. I then put this
part into the box and continued to walk towards Cleary
Park. When I
got to Cleary Park Shopping Centre I sat outside the complex for a
long while. I then picked up paper and plastic packets
and stuffed it
in the box. I picked up 2 plastic packets and put the box in these
packets. I then went into the complex and sat inside
First National
Bank. I then fetched a deposit slip and wrote on it. I wrote the
following words, “I HAVE A BOM GIVE ME SOME
MOYNE OR I WILL
BLOW YOU UP”. I then went to the counter and gave the slip to
the teller. The lady teller took the note and
then went to the teller
next to her.
She showed her the note and I remained
waiting at the counter. I indicated that I have a bomb in the box and
that I have a detonator
in my hand. Shortly after that I saw all the
people going out of the bank. I asked what is happening and the
teller told me that
they want to get all the customers out of the
bank. I told them that I am looking for money. I was told to wait.
The lady then went
to the back of the bank and I remained standing at
the counter.
I then heard a knock at the door. The
lady told me that it was the bank manager. Thereafter the lady gave
me a sum of R5 000.00. I
told the man and the lady that both of them
must come with me to get out of the bank. I told them that I was
going to use the lady
as my hostage. We then proceeded out of the
building. The man who pretended to be the bank manager then convinced
me to let the lady
go and I agreed to that. When we got outside, the
so-called bank manager then took a bakkie from a gentleman in the
parking lot and
the two of us drove off in the direction of
Bethelsdorp. While we were driving in Bethelsdorp the man convinced
me to throw away
the detonator. I then threw it away out of the
window. He then stopped the bakkie and I got out of the bakkie. He
also got out and
then arrested me. He took the box, which contained
the so-called bomb and took the money from me. I later learn that the
man was
a police officer.’
[3] The approach of a sentencing tribunal to the
imposition of the minimum sentences prescribed by the Act is to be
found in the detailed
judgment of Marais JA in
S
v Malgas
2001 (1) SACR 469
(SCA). The main
principles appearing in that judgment which are of particular
application to the present appeal are: First, the court
has a duty to
consider all the circumstances of the case, including the many
factors traditionally taken into account by courts when
sentencing
offenders. Secondly, for circumstances to qualify as substantial and
compelling, they do not have to be exceptional in
the sense of seldom
encountered or rare. Thirdly, although the prescribed sentences
required a severe, standardised and consistent
response from the
courts unless there were, and could be seen to be, truly convincing
reasons for a different response, the statutory
framework nonetheless
left the courts free to continue to exercise a substantial measure of
judicial discretion in imposing sentence.
(See also
S
v Fatyi
2001 (1) SACR 485
(SCA) para 5;
S
v Abrahams
2002 (1) SACR 116
(SCA) para 13.)
[4] The circumstances entitling a court of appeal to
interfere in a sentence imposed by a trial court were recapitulated
in
Malgas
(para 12),
where Marais JA held:
‘
A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do so
would be to usurp the
sentencing discretion of the trial court. . . . However, even in the
absence of material misdirection an appellate
court may yet be
justified in interfering with the sentence imposed by the trial
court. It may do so when the disparity between the
sentence of the
trial court and the sentence which the appellate Court would have
imposed had it been the trial court is so marked
that it can properly
be described as “shocking”, “startling” or
“disturbingly inappropriate”.’
[5] The question therefore is whether there was a
material misdirection by the trial court in the manner in which it
weighed the factors
relevant to the determination of sentence or, if
not, whether the sentence imposed was in any event so shockingly
inappropriate as
to give rise to the inference that there had been a
failure to properly exercise the sentencing discretion (
Abrahams
para 15).
[6] In my view the test for intervention on the first
leg is satisfied and it is thus unnecessary to consider the second.
The record
reflects that the regional magistrate erred in several
respects in his approach to sentence. He thus materially misdirected
himself
in imposing a sentence of fifteen years. First, he stated
without elaboration or greater specificity that there were
aggravating
circumstances present. Plainly, there were none.
Secondly, he wrongly characterised the appellant’s conduct as
an attempt to
perpetrate, as he put it, a popular crime. Thirdly, the
magistrate emphasised the community interest and general deterrence
in arriving
at what he considered to be a just sentence, whilst the
other traditional aims of sentencing such as personal deterrence,
rehabilitation
and reformation did not merit a mention in his
judgment. Fourthly, the many mitigating factors that were present
were not afforded
appropriate recognition by the magistrate, nor were
they balanced against what he perceived to be the aggravating
features in the
commission of the offences. It follows that the
sentence imposed by the magistrate falls to be set aside and this
Court is accordingly
free to impose the sentence it considers
appropriate subject of course to the provisions of the Act.
[7] Against that backdrop I turn to the mitigating
factors present in this case. It is in the appellant’s favour
that his first
criminal transgression had occurred at the relatively
mature age of 34 and that he had maintained an unblemished record
until then.
He had, until the loss of his job, been in gainful
employment and had supported his wife and two children. The loss of
his employment
had resulted in deteriorating financial security for
his family and acute embarrassment for himself – resulting; it
would seem,
in him being driven to despair. To cope, he drew greater
solace from alcohol. Despite all of this though, according to the
probation
officer, he continued to have a warm and meaningful
relationship with his wife and children. The offence itself was
ill-conceived
and executed in a rather inept and amateurish manner.
It occurred without any real preplanning or forethought. Although the
personnel
at the bank responded to his bomb threat with genuine
apprehension and anxiety, the appellant was in truth not possessed of
a bomb
or armed in any other manner; he thus posed no real danger to
anyone. Although not proffered as an excuse for his conduct, his
desperate
situation no doubt drove him to commit the offences for
which, by pleading guilty he has demonstrated remorse. He must
undoubtedly
have learnt from his first brush with the law and he is
thus unlikely to resort to crime again. Personal deterrence
accordingly ought
not to weigh too heavily in the sentencing process.
That all of the money was recovered and that the appellant was
arrested with
relative ease is perhaps indicative of his lack of
sophistication and guile. In short, his conduct on the day in
question was childlike
and naïve and, if the truth be told,
woeful and pathetic.
[8] In my view the cumulative effect of the aforegoing
factors, all of which the sentencing court failed to take into
account, constitute
substantial and compelling circumstances within
the meaning of that expression. I am thus persuaded that a departure
from the prescribed
minimum is justified on the basis that such a
sentence would be disproportionate to the crime, the criminal and the
legitimate interests
of society (
S v Mahomotsa
2002 (2) SACR 435
(SCA) para 20). It follows that the
fifteen years’ imprisonment imposed on the appellant by the
regional magistrate is not
a just sentence. Plainly, for an offence
of the kind encountered here, a custodial sentence is clearly
warranted. Reconsidering the
matter, I consider a sentence of 5
years’ imprisonment to be appropriate in respect of count 1 –
the robbery with aggravating
circumstances.
[9] In the result:
The appeal against sentence succeeds.
The sentence of 15 years’ imprisonment imposed by
the regional court pursuant to the appellant’s conviction on
count
1 - the robbery with aggravating circumstances
is
set aside and replaced with the following: ‘The accused is
sentenced to imprisonment for a term of 5 years’.
V M PONNAN
JUDGE OF APPEAL
CONCUR: