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[2015] ZAFSHC 183
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Matsau v S (A 108/2015) [2015] ZAFSHC 183 (3 September 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A 108/2015
DATE:
03 SEPTEMBER 2015
ANTHONY
SIPHO
MATSAU
..........................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
CORAM:
RAMPAI, J
et
MURRAY, AJ
HEARD
ON:
24 AUGUST 2015
JUDGMENT
BY:
MURRAY, AJ
DELIVERED
ON:
3 SEPTEMBER 2015
[1]
This is an appeal against the sentence of 15 years’
imprisonment imposed on the Appellant on 14 December 2012 by the
Magistrates’ Court, Kroonstad, after his conviction of Robbery
with Aggravating Circumstances as meant in s 1 of the Criminal
Procedure Act, Act 51 of 1977 (“the CPA”). His
application for leave to appeal was dismissed on 19 December 2014,
but the petition against his sentence succeeded on 20 April 2015.
[2]
The Appellant was convicted of the said offence, read with the
provisions of s 51(1) and (2) of the Criminal Law Amendment Act,
Act
105 of 1997. He was charged with his co-accused who was not
before us on appeal. The prosecution alleged that they
unlawfully and intentionally assaulted Mr Maketekete (“the
victim”) and removed a Volkswagen Polo 1.6 with registration
number [HF…..……], a lap-top, cell phones and
R5600.00 from the victim’s lawful possession after having
threatened to shoot him and to inflict serious injuries upon him.
[3]
S 1 of the CPA includes in the definition of “aggravating
circumstances” in subsection 1(b)(iii) “
a
threat to inflict grievous bodily harm, by the offender or an
accomplice, before, during or after the offence.”
And
in
EX
PARTE MINISTER OF JUSTICE: In re R v GESA; R v DE JONGH
[1]
the
court held that when the accused threatens the complainant with
bodily injury in order to obtain possession of something belonging
to
the complainant and the complainant hands it over to avoid injury,
the accused is guilty of robbery.
[4]
In the present case, when the victim’s hijacked car was
retrieved, the gun with which the complainant had been threatened
was
found to be a toy gun. However, the court in
S
v ANTHONY
[2]
held
that although a toy gun did not fall under the s 1(i) definition of a
“firearm”, the presence of aggravating circumstances,
which impacts on the sentence, must be determined objectively.
Therefore, where an accused threatened his victim with a toy
gun
during a robbery, the “threat” requirement in s 1(b)(iii)
would be satisfied if the victim subjectively experienced
the conduct
of the robber as a threat to inflict bodily harm. The court
held that in such an instance aggravating circumstances
would be
present. Steyn J in
S
v MDAKA
[3]
held
that a ‘
subjective
element is introduced by considering what the complainant believed’
.
In the present case the complainant believed the threat
to shoot him and the firearm to be real. A screw-driver,
which
could serve as a dangerous weapon, was furthermore retrieved from the
front seat.
[5]
The Appellant’s conviction of robbery with aggravating
circumstances was therefore correct. This court then needs
to
examine the nature and seriousness of the crime and of the
aggravating circumstances to weigh them up against the mitigating
circumstances to determine whether the sentence was, in the specific
circumstances of this case, appropriate and proportionate
to the
crime.
[6]
A proper enquiry where an appeal is directed at a sentence which was
imposed in terms of Act 105 of 1997, as was the one in
the present
case, according to the court in
S
v PB
[4]
needs
to focus on whether the facts considered by the trial court had been
substantial and compelling or not. As held in
S
v MALGAS
[5]
,
in
addition, the court of appeal should consider all other circumstances
bearing on the question (See also:
S
v GK
[6]
)
to enable it to assess the trial court’s finding and determine
the proportionality of the sentence. Then, as Ms Kruger,
on
behalf of the Appellant, with reference to
S
v Malgas,
[7]
submitted:
“
If
the sentencing court in consideration of all of the circumstances of
the particular case is satisfied that they render the prescribed
sentence unjust in that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice
would be
done by imposing that sentence, it is entitled to impose a lesser
sentence.”
[7]
The Constitutional Court in
S
v BOGAARDS
[8]
recently
described an appeal court’s discretion to interfere with a
sentence as follows:
“
It
can only do so when there has been an irregularity that results in a
failure of justice; the court
a quo
misdirected itself to such an extent
that its decision on sentencing is vitiated; or the sentence is so
disproportionate or shocking
that no reasonable court could have
imposed it.”
[8]
Ms Kruger argued that the trial court had indeed misdirected itself
in finding that there were no substantial and compelling
circumstances to justify the imposition of a lesser sentence than the
prescribed one of 15 years’ imprisonment for a first
offender.
She averred that the result was a shockingly inappropriate sentence
and that this Court would be justified to interfere.
Mr
Strauss, for the State, on the other hand argued that the court had
correctly made such finding and supported the sentence.
[9]
In argument Ms Kruger listed the personal circumstances which she
alleged that the trial court should have taken into consideration
but
did not, namely that the Appellant was 48 years old at the time of
sentencing; that he had passed matric; that he is married
with four
children, three of whom were still minors at the time of sentencing;
that his children lived with their grandparents;
that he was arrested
on 8 January 2011 and had therefore been awaiting trial for almost
two years; and that he was a first offender.
I agree with Mr Strauss,
however, that the trial court did take these factors into account as
mitigating personal circumstances.
[10]
Ms Kruger argued, furthermore, that at least three of the
above-mentioned factors would both in isolation and cumulatively
constitute substantial and compelling circumstances, namely that the
Appellant was a first offender at the advanced age of 48 years;
that
he was in custody awaiting trial for almost two years; and that the
Complainant was not injured during the incident, the measure
of
violence was minimal and the stolen items were all recovered.
[11]
However, in
S
v VILAKAZI
[9]
Nugent
JA explained that particular factors, whether aggravating or
mitigating, should not be taken individually and in isolation
as
substantial or compelling circumstances. Regarding the accused’s
being a first offender at the age of 48 years, Mr Strauss
in my view
correctly pointed out that at that age he should have known better
than to become involved in crime. It accords with
the notion
expressed by Ebrahim J in
S
v BEYI
[10]
that
the appellant in that case as a father (
in
casu
of
four children) and bread-winner should have known, better than anyone
else, that he was placing the well-being of his family
in jeopardy by
resorting to crime.
[12]
Although ‘
high
age’
is
usually regarded as a factor against imprisonment
[11]
,
the accused
in
casu
in
my view does not fall into that category yet. There is no evidence
that he is sickly, suffers from any age-related disability
or has a
short life expectancy. In his case the notion that the period in
prison would form a ‘
high
proportion or percentage of his remaining life expectancy’
,
as would be the case if he were in his sixties or older, or that his
imprisonment ‘
would
be difficult to rationalise in light of the purposes of sentencing,
as retribution might be pointless and individual deterrence
and
rehabilitation irrelevant for the elderly’
is not applicable.
[13]
The accused
in
casu
at 48 is far from the 74 years of age of the accused in
S
v KLEINHANS
[12]
in which Bozalek J regarded the accused’s age as the most
weighty of several mitigating circumstances and reduced his sentence
of 15 years’ imprisonment to one of an effective 4 years’
imprisonment, with a further 4 years’ imprisonment
suspended on
various conditions, because the 15-year sentence at his age
“
undoubtedly
induce[d] a sense of shock”
and
because the court regarded it as “
neither
a realistic nor a humane sentence”.
I
do not regard the sentence
in
casu
as
inducing a sense of shock, unrealistic or inhumane in view of the
accused’s age in the particular circumstances of this
case.
[14]
That does not mean, however, that advanced age, like youthfulness,
should not be taken into account as
a
factor in sentencing, as the court did in
S
v BARENDSE
[13]
.
The Constitutional Court, in
MPOFU
v MINISTER FOR JUSTICE AND CONSITUTIONAL DEVELOPMENT
[14]
,
in
fact, did identify age as a highly relevant mitigating factor in
sentencing, but in my view, in the present case, it is
but one
of the factors to consider, and not the most weighty one as in
S
v Kleinhans,
supra
.
I am therefore satisfied that the trial court did not misdirect
itself by not attaching more weight to the Appellant’s age.
[15]
Regarding the significance of time spent in detention,
pre-sentencing, Lewis JA in
S
v RADEBE
[15]
made
it clear that, that too is merely one of the factors to be taken into
consideration to determine whether the effective sentence
imposed is
proportionate to the crime committed and therefore justified
[16]
.
In
DIRECTOR
OF PUBLIC PROSECUTIONS, NORTH GAUTENG: PRETORIA v GCWALA &
OTHERS
[17]
,
in
a case of robbery with aggravating circumstances, she held that in
determining whether substantial and compelling circumstances
warrant
a lesser sentence than the prescribed minimum one:
“
the
test is not whether on its own that period of detention constitutes a
substantial and compelling circumstance, but whether the
effective
sentence proposed is proportionate to the crime or crimes committed;
whether the sentence in all circumstances, including
the period spent
in detention prior to conviction and sentencing, is a just one.”
[16]
The accused
in
casu
had
been incarcerated for almost two years before he was sentenced by the
trial court. The trial court singled that out as
the only
factor which could possibly persuade it to make a finding of
substantial and compelling circumstances. As
Binns-Ward J
in
S
v FORTUNE
[18]
found, although the fact that a convicted offender has spent time in
prison awaiting trial or for the duration of the trial, is
undoubtedly a relevant consideration in determining an appropriate
sentence, it is not one that “
carries
any mechanical effect”
.
[17]
The SCA in
S
v Radebe
[19]
has
already disapproved of the notion expressed in
S
v Brophy
[20]
that time in prison before sentence should count as the equivalent of
double the time of post-sentence incarceration.
Lewis JA
made it clear that there should be no rule of thumb or mechanical
formula regarding the calculation of the weight to be
attached to the
period spent awaiting trial. Rather, in each case the court
should assess the individual accused’s
circumstances to
determine the extent to which the proposed sentence should be
reduced, if at all. In determining whether
the effective period
of imprisonment is justified and proportionate to the crime
committed, the period in detention pre-sentencing
is but one of the
factors to be taken into account.
[18]
Rogers J in
S
v GK
[21]
,
for
instance, lowered the sentence of a 56-year old second offender from
life imprisonment to 18 years’ imprisonment for rape,
with a
further 13 months’ deduction for the time spent in
incarceration. As Binns-Ward J in
S
v Fortune
said,
what the magistrate
in
casu
had
to ask himself in respect of the two years spent in custody, was
whether its effect, taken together with the prescribed minimum
sentence, would render the imposed sentence so disproportionate to
the offence of which the accused had been convicted as to amount
in
the context of all the relevant factors to substantial and compelling
circumstances warranting the imposition of a lesser sentence.
[19]
Adding the two years which the accused
in
casu
had
spent in detention, pre-sentence, to the 15 years’ sentence
imposed on him, results in an effective period of incarceration
of 17
years. By now it is trite that a court is not to depart
from a prescribed sentence lightly or ‘
for
flimsy reasons’
(See:
S
v GK
[22]
),
a principle which applies equally to imposing a lesser and a
lengthier sentence than the prescribed one.
[20]
In the present case the crime of which the accused had been convicted
was that of robbery with aggravating circumstances (the
threat of
serious injury) where the main item so robbed was the victim’s
car, besides the R 5600.00 in cash, the victim’s
laptop and his
two cell-phones. Robbery is a scheduled crime which falls
under Part II of Schedule 2 of Act 105 of
1997 (a) when there are
aggravating circumstances present,
or
(b) when it involves the taking of a motor vehicle. Either of
these two manifestations of robbery as a Part II Schedule 2
crime has
been regarded as serious enough for the Legislature to make it
punishable with a minimum sentence of 15 years’
imprisonment
for first offenders.
[21]
In the instant case both manifestations, namely aggravating
circumstances and the taking of a vehicle, are present. Where
there are no substantial and compelling circumstances to justify a
decremental deviation from the prescribed minimum sentence in
terms
of s 51 of Act 105 of 1997, aggravating factors may persuade the
sentencing court to increase the sentence to a level above
the
prescribed minimum sentence.
[23]
It therefore makes sense that the magistrate considered the theft of
the vehicle to add significant weight to the aggravating
factors to
be taken into account.
[22]
The trial court took into account, furthermore, as aggravating the
careful planning of the hijacking, and even more compelling,
the
attempt to escape conviction of the hijacking by trying to introduce
into evidence a fraudulent traffic-ticket purporting to
show that the
complainant had previously allowed the Appellant’s co-accused
to drive his car and that there never was a hijacking,
but merely a
request from the complainant for them to drive his car to a certain
hospital.
[23]
In that fraud, the trial court found the justification for imposing a
heavier sentence than the prescribed one. It then
found the
weightiest of the mitigating circumstances and the weightiest of the
aggravating circumstances to balance out and accordingly
held the
prescribed sentence to be the appropriate one to impose.
[24]
Du Toit is of the opinion that, although advisable, it is not
peremptory for the trial court to give reasons for increasing
the
sentence above the prescribed minimum. In
S
v DAIL
[24]
,
for instance, the court of appeal was not persuaded that the trial
court’s failure to give reasons for imposing a heavier
sentence
constituted a misdirection which justified intervention on appeal.
In the present case, the court also did
not specify why
it did not compensate for the Appellant’s time in detention but
allowed the two years to lead to the prescribed
sentence effectively
being lengthened to 17 years’ imprisonment, but did imply that
the fraud was just the last straw which
tipped the scale towards a
heavier sentence.
[25]
I am unpersuaded by Ms Kruger’s submission that the minimal
degree of violence that was used during the robbery in the
particular
circumstances of this case in itself, or cumulatively with the other
mitigating factors, constituted substantial and
compelling
circumstances which would warrant the imposition of a lesser
sentence. In my view the trial court was correct
in not
regarding it as such.
[26]
In
S
v MULLER
[25]
with
reference to minimal violence being used during a crime, for
instance, the trial court held that the offences ‘
cannot
be regarded as falling within the upper echelons of the scale of
severity’
.
And in
S
v FORTUNE
[26]
where
the appellant had threatened the complainant with a knife on a street
in broad daylight and robbed her of her handbag without
causing her
any physical injury, the court held the offence to have been at the
lower end of the scale of instances of robbery
with aggravating
circumstances, and stated that it was a factor which should have been
taken into account in the assessment of
an appropriate sentence.
The trial court
in
casu
did
take it into account.
[27]
Binns-Ward J in
S
v Fortune
[27]
found it “
appropriate
for a sentencing court to have regard to the gradation in the
manifestations of the listed offence”
of robbery with aggravating circumstances which are set out in ss
1(b)(i) to (iii) of the CPA to determine an appropriate
sentence. The court held that:
“
the
fact that the complainant was threatened rather than physically
assaulted and injured is a relevant factor to be taken into
account,
along with all the other factors that should be weighed in
determining whether a departure from the prescribed sentence
is
warranted”.
[28]
That court of appeal accordingly interfered and imposed a sentence of
8 years’ imprisonment instead of the 15 years minimum
prescribed for robbery with aggravating circumstances.
But one has to keep in mind that even though in the present
case
minimum violence was also used in that the victim was only threatened
and not injured, the object of the robbery, namely to
hijack the
victim’s car, and the threat of shooting the complainant, were
much more serious than the grabbing of a handbag.
[29]
Furthermore, there were two perpetrators and the absence of injuries
was not attributable to the accused, but simply resulted
from the
complainant’s wisely allowing himself to be pushed from the car
before the screw-driver could be used to stab him
into submission.
Likewise, the fact that all the stolen items were recovered could in
no way be attributed to the accused,
but to the presence of the
Tracking device in the car and good police-work. In the circumstances
these factors can therefore at
best for the Appellant only be neutral
factors.
[30]
Whereas Ms Kruger mentioned only two aggravating factors, namely that
the complainant was robbed of his vehicle and that the
Appellant and
his co-accused planned the offence, Mr Strauss added the nature and
seriousness of the crime of robbing someone of
his vehicle and
personal belongings under threat of violence, which calls for severe
punishments to be seen to follow (See:
S
v VALLEY
[28]
)
as is clear from the provisions of Act 105 of 1997; the pre-planning
of the crime; the accused’s absence of any remorse;
the fact
that the offence involved a hijacking and the interests of a society
which is tired of this type of violent crime and
looks to the courts
for assistance. (See:
S
v MASHAINE EN ANDERE
[29]
).
[31]
Although the court did not mention the Appellant’s lack of
remorse and the interests of the community to be rid of such
violent
crimes, they are material factors in considering whether a sentence
is appropriate and proportional to the crime.
In the
present case I am satisfied that the aggravating circumstances so far
outweigh the mitigating ones, that the sentence is
appropriate and
just, despite the Appellant’s age, the time spent awaiting
trial and the absence of serious violence, so
that there would be no
justification for this court to intervene.
WHEREFORE
THE FOLLOWING ORDER IS MADE:
1.
The appeal is dismissed and the conviction
and sentence of 15 years’ imprisonment are confirmed.
H
MURRAY, AJ
I
concur and it is so ordered.
M
H RAMPAI, J
For
the Appellant: Ms S Kruger
Attorney
for the Appellant:
Bloemfontein
Legal Centre
Southern
Life Plaza Building
1
st
Floor, South Wing
41
Charlotte Maxeke Street
BLOEMFONTEIN
For
the State: Mr M Strauss
Counsel
for the State
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
1959
(1) SA 234 (A)
[2]
2002
(2) SACR 453
(C) at 454j – 455b and 456c – d.
[3]
2014
(2) SACR 393
(KZP) at [5]
[4]
2013(2)
SACR 533 (SCA) at [20].
[5]
2001
(1) SACR 469 (SCA)
[6]
2013
(2) SACR 505
(WCC) at [71]
[7]
2001
(1) SACR 469
(SCA) at par [12].
[8]
2013
(1) SACR 1
(CC) at [41]. See also S v Madiba
[2014]
ZASCA 13
(unreported, SCA case
497/2013,
20 March 2014).
[9]
2009
(1) SACR 552
(SCA) at [15]
[10]
2011
(2) SACR 23 (ECG)
[11]
Du
Toit,
supra,
Service
24, 2015 at 28-18V.
[12]
2014
(2) SACR 575
(WCC) at [21]
[13]
2010
(2) SACR 616
(ECG) at 619c-d.
[14]
2013
(2) SACR 407
(CC) at [66]
[15]
2013
(2) SACR 165
(SCA) at [14]
[16]
Du
Toit,
supra,
Service
54, 2015 at 30-49.
[17]
2014
(2) SACR 337
(SCA) at [16]
[18]
2014
(2) SACR 178
(WCC) at [15] at 188c-e.
[19]
Supra
,
at [11] – [15].
[20]
2007
(2) SACR 56 (W)
[21]
Supra,
at
[29] at 518h-I and [33] at 520a.
[22]
2013
(2) SACR 505
(WCC) at 20 at 523e-f.
[23]
Du
Toit,
supra,
Service
54, 2015 at 30-46.
[24]
Unreported,
FB case no A145/2012, 12 June 2014
[25]
2012
(2) SACR 545 (SCA) 550c
[26]
2014
(2) SACR 178
(WCC) at 187d-f
[27]
S
v Fortune,
supra,
at [12] at 187h-i
[28]
1998
(1) SACR 417
at 420 b – d.
[29]
1998
(2) SACR 664
(NC) AT 669.