About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 174
|
|
Zulu v S (A 85/2015) [2015] ZAFSHC 174 (10 September 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A 85/2015
DATE:
10 SEPTEMBER 2015
In
the matter between:
MAHLABA
AARON
ZULU
.............................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
CORAM:
MOCUMIE, J
et
MURRAY,
AJ
HEARD
ON:
31 AUGUST 2015
JUDGMENT
BY:
MURRAY, AJ
DELIVERED
ON:
10 SEPTEMBER 2015
[1]
This is an appeal against the effective sentence of 30 years
imprisonment imposed on the Appellant on 11 June 2013 in the Regional
Court, sitting at Bloemfontein, after his conviction on several
charges of Housebreaking with Intent to Rob and Robbery with
Aggravating
Circumstances, Housebreaking with Intent to Steal and
Theft, Attempted Murder, Kidnapping and Sexual Assault. The
Appellant
was granted leave to appeal against the said sentence.
[2]
The Appellant was convicted on ten of the twelve charges against him
and was sentenced to a total of 100 years’ imprisonment,
as
follows:
12.1
Count 1
:
Housebreaking with Intent to Steal and Theft – 5 years;
12.2
Count 2
:
Housebreaking with Intent to Steal and Theft – 5 years;
12.3
Count 3
:
Housebreaking with Intent to Rob and Robbery
with
Aggravating Circumstances – 15 years;
12.4
Count 4
:
Housebreaking with Intent to Rob and Robbery
with
Aggravating Circumstances – 15 years;
12.5
Count 5
:
Sexual Assault
– 5
years;
12.6
Count 6
:
Housebreaking with intent to Rob and Robbery
with
Aggravating Circumstances
– 15 years;
12.7
Count 7
:
Kidnapping
– 10 years;
12.8
Count 8
:
Housebreaking with Intent to Steal and Theft –
5 years;
12.9
Count 10
:
Housebreaking with intent to Rob and Robbery
with
Aggravating Circumstances
– 15 years;
12.10
Count 11
:
Attempted murder – 10
years.
[3]
The court
a
quo
then reduced the effective sentence
to a total of 30 years’ imprisonment by ordering the sentences
to be served concurrently
as follows:
(a)
Counts
1, 2 & 8
to run concurrently with Counts
3,
4, 6, & 10
.
(b)
Counts
5, 7 & 11
to run concurrently with Counts
3, 4,
6 & 10
.
(c)
Counts
3 & 4
to run concurrently with Counts
6 &10
.
[4]
Mr van der Merwe, for the Appellant, averred that the effective
sentence of 30 years’ imprisonment was harsh, even taking
into
account the number of charges and the gravity of the type of crime of
which the Appellant has been convicted.
He alleged that
the trial court had erred in two respects, namely by failing to take
into proper consideration the Appellant’s
personal and
mitigating circumstances and over-emphasising the aggravating
circumstances to the Appellant’s detriment, and
therefore
imposed a sentence which was shockingly inappropriate in view of the
Appellant’s personal circumstances and all
the mitigating
factors.
[5]
Mr Hoffman, on behalf of the State, supported the sentence.
He argued,
with reference so
S
v RABIE
[1]
and
S
v OBISI
[2]
that
the court hearing the appeal should (a) be guided by the principle
that punishment is ‘pre-eminently a matter for the
discretion
of the trial Court’ and (b) be careful not to erode such
discretion. He pointed out that, therefore,
the sentence
should only be altered if the discretion had not be ‘judicially
and properly exercised’.
[6]
The Constitutional Court in
S
v BOGAARDS
[3]
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.”
[7]
Mr Hoffman, correctly, submitted that the court
a
quo
did take into consideration the
following personal circumstances: that the Appellant was 23
years old and has three children;
that, as a self-employed
hairdresser, he had been a productive member of the community who
supported his family; that he had already
been in custody for 13
months; that his mother passed away during his incarceration; that he
had passed grade 7; that he had pleaded
guilty and had apologised to
the Complainants, which the court accepted as a sign of remorse; and
that he was a first offender.
[8]
The Court considered as mitigating, furthermore, that the Appellant
was still young and had succumbed to the influence of bad
friends;
that he had never committed crimes or had any run-ins with the law
before the eleven month crime spree for which he had
been sentenced;
and that he had previously shown no propensity for violence or
violent crime.
[9]
As Mr Hoffman also submitted, the court
a
quo
properly took into consideration
the serious nature and gravity of the offences, the fact that weapons
were used and at least one
victim was seriously injured, that the
victims were terrorised and severely traumatized during the
incidents; that all the items
stolen or robbed were luxury items;
that the community had an interest in seeing such crimes punished;
and that that type of crime
had become prevalent. He then
argued that the court
a quo
had
found an appropriate balance between the seriousness of the crime,
the interest of the community and the personal circumstances
of the
Appellant to arrive at an appropriate and proportionate punishment,
tempered as it was by ordering the sentences to run
concurrently.
In his submission, then, the sentence warranted no interference on
appeal.
[10]
Mr van der Merwe conceded that one could not disregard the fact that
some of the robbery charges were accompanied by violence
and that the
complainants sustained serious injuries. Although he
conceded, furthermore, that he could not seriously
submit that
substantial and compelling circumstances were present, he did point
out that the Appellant clearly acted as one of
a group and that it
was not evident that the Appellant himself had inflicted the
injuries.
The
Conviction
:
[11]
Although the appeal lies against the sentence only, this Court needs
to intervene regarding one conviction and sentence that
clearly
cannot stand. It is apparent from the record that the Court
a
quo
committed a misdirection regarding
Count 5: the Appellant should not have been found guilty of
sexual assault, as embodied
in the Charge Sheet, despite having
pleaded guilty to that offence.
[12]
On Count 5 the Appellant was charged with sexual assault as follows:
“…
in
that upon or about 4 February 102 and at or near Uitsig, Bloemfontein
… the said accused
did unlawfully
and intentionally sexually violate the complainant
to wit E…….. K……
by
kissing her, taking off her underwear and by touching her buttocks
without the consent
of the said
complainant.”
[13]
The accused’s plea explanation clearly did not cover all the
elements needed for a conviction
on the charge. In fact it made
it clear that the said deeds were committed by Bennito and that the
Appellant did not commit
the acts described in the Charge Sheet.
On the contrary, it clearly distanced the accused from the commission
of the offence.
Loosely translated, it reads as follows:
“
On
count 5 I admit that I was in Uitsig, here in Bloemfontein, on 4
February 2012. I found the complainant E K…..
with
B……. B….. kissed and groped her. I
associated myself with that and did nothing to stop him
I
knew what he did was wrong and therefore acquiesced in his conduct”.
[14]
It is trite that it is the presiding officer’s duty to
determine whether the accused admits
all the elements of the crime as
set out in the charge sheet and to satisfy himself that the accused
is indeed guilty of the offence
as charged
[4]
,
which did not happen in the instant case. The Appellant’s
conviction on Count 5 therefore cannot stand and has to
be set
aside. The sentence of 5 years’ imprisonment imposed on
him for Count 5 therefore falls away, as well.
[15]
Setting aside the conviction and sentence regarding Count 5 reduces
the total sentence of 100
years to one of 95 years, but, due to the
way the sentences were ordered to be served concurrently, as the
order stands, the setting
aside of that sentence does not have any
practical effect on the effective length of the sentences, however.
The Court
ordered Count 5 (with a 5 year term) to run concurrently
with Counts 3, 4, 6 and 10 (each of which was a 15 year term) and
then
ordered 3 and 4 (each a 15 year term) to run with 6 and 10 (each
a 15 year term). That still leaves the 30-year effective
sentence even if the 5 year sentence on Count 5 falls away.
[16]
A proper enquiry where an appeal is directed at a sentence which was
imposed in terms of Act
105 of 1997, as was done in at least all of
the instances of Robbery with Aggravating Circumstances in the
present case, according
to the court in
S
v PB
[5]
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
[6]
,
in
addition, the court of appeal should consider all other circumstances
bearing on the question (See also:
S
v GK
[7]
)
to enable it to assess the trial court’s finding and determine
the proportionality of the sentence. In
S
v Malgas,
[8]
the
court held that:
“
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.”
[17]
I have to agree with Mr Hoffman that the aggravating circumstances in
the present case outweigh
the mitigating factors to the extent that
there are no substantial and compelling circumstances to justify the
imposition of lesser
sentences than the prescribed ones of 15 years’
imprisonment for first offenders in relation to the four convictions
of Robbery
with Aggravating Circumstances and the 10 years’
imprisonment for the Kidnapping and the Attempted Murder convictions,
respectively.
As the trial court stated during sentencing with
reference to the Appellant’s 11-month crime spree and
‘
the
heinous nature of the crime’
:
‘
The
offence itself … is very, very serious’ … It is
very prevalent in this area … you virtually held
the Uitsig
area in Bloemfontein at your pedal, you had them completely on their
knees in that area … then you went a step
further just robbing
the people or stealing from the people was not enough, you
deliberately set out to hurt them also.
Like the
kidnapping, like the sexual assault and the attempted murder counts
that you have pleaded guilty to.”
[18]
Regarding Count 3, the Appellant in his statement admitted that he
used a sharp object to injure
the complainant. Regarding Count
4 he admitted using a panga to instil fear in the victim to force her
to hand over her possessions.
Regarding Count 6 he admitted
using a panga to instil fear in his victims in order to rob them.
Regarding Count 7 he admitted
having deprived those same victims and
their children of their freedom by forcing them into their vehicle
and forcing them to drive
out of Uitsig. Regarding Count
10 he admitted having assaulted one victim and having used violence
to rob both his
victims. Regarding Count 11 he admitted having
attempted to kill his victim by repeatedly striking him with a panga
and injuring
him seriously.
[19]
The lasting and debilitating impact of the Appellant’s deeds on
his victims emerged from
the testimony of one of his victims in
aggravation before he was sentenced. Mrs K……
(Count 5) described
how her young son was forced into her room with a
panga at two in the morning when she was alone in the house with her
three children
and how the Appellant told her: “I want to kill
at least one tonight”. She was told to choose which one. All
four of them had to be hospitalised for trauma counselling.
[20]
Regarding the guilty pleas on all charges, furthermore, Mr Hoffman
submitted that that was no
sign of true remorse, since the State had
such a good case against the Appellant due to fingerprint evidence,
that he had no other
choice than to plead guilty. At best it
could therefore have been a neutral factor. The court
a
quo
did inform the Appellant that in
view of his youth and his evidence in mitigation that he was
influenced by bad people, and the
fact that he was a first offender,
moved the court to temper the totality of the sentences with an order
of concurrency.
[21]
When a sentence is imposed for each of a multiple of offences, as
in
casu,
a
cumulative effect may develop and render the combined punishments too
severe. As Terblanche stated
[9]
:
‘
it
can give a false picture of the totality of the offender’s
criminal conduct to the point where the total punishment is
more than
is required by his blameworthiness.’
[22]
To illustrate this, Terblanche quoted with approval from
S
v MPOFU
[10]
:
‘
[i]n
all multiple crime cases the courts pay regard to what
Thomas
describes as ‘the totality principle’. (The Court)
must look at the totality of the criminal behaviour and ask
itself
what is the appropriate sentence for all the offences.’ …
In effect, the accused normally receives a
‘discount’ for
bulk offending, particularly where the various counts are similar in
nature, for the imposition of a
separate and consecutive sentence for
each individual charge would result in a very high aggregate penalty
which would be disproportionate
to the moral blameworthiness of the
accused having regard to his line of conduct as a whole.’
and added that:
Reducing
the cumulative effect is part of the sentencing decision as a whole,
which is determined by the sentence discretion, based
on all
circumstances of the case. The mere fact that there is more than one
offence does not mean that the court has to impose
lesser sentences.
The sentencing officer should consider all the circumstances, look at
the totality of the criminal behaviour
and determine how the
cumulative effect should be prevented.”
[23]
The court
a
quo
therefore
correctly took into consideration several weighty mitigating
circumstances, such as the Appellant’s youthful age
and the
fact that he was a first offender to temper the totality of the
sentences by ordering them all to run concurrently rather
than to
impose lesser than the prescribed sentences. The cumulative
effect of all of the sentences, namely a 100 years’
imprisonment was indeed shocking enough for the court
a
quo
to
have to find such a way of bringing about a fair and adequate
sentence
[11]
. As
Theron JA said in
S
v MOSWATHUPA
[12]
:
“
Where
multiple offences need to be punished, the court has to seek an
appropriate sentence for all the offences taken together.
When dealing with multiple offences a court must not lose sight of
the fact that the aggregate penalty must not be unduly severe.”
[24]
Even though
in
casu
we
are dealing with an effective sentence achieved by ordering
concurrency, Plasket J’s reference in
S
v VELEBHAYI
[13]
to
Trollip J’s remark in
S
v Young
[14]
would still be applicable, namely:
‘
Despite
the gravity of the individual offences, is the cumulative effect of
these sentences too harsh?”
For,
as Chetty J in
S
v DUBE
[15]
stated,
where the cumulative effect of a number of sentences strikes one as
excessive, appellate interference is warranted.
No doubt
the same would apply if the end result of an order that a number of
sentences are to run concurrently still strikes one
as excessive.
[25]
In
S
v MULLER
[16]
where the appellants were 24 and 29 years old when they committed the
crimes, for instance, the Supreme Court of Appeal held that
‘
[a]n
effective sentence of 30 years’ imprisonment was an extremely
severe punishment that should be reserved for particularly
heinous
offences.’
The
appellants in that case had originally been convicted on three counts
of robbery with aggravating circumstances, after three
businesses
within a two kilometre radius were robbed at gunpoint in one month.
In all of the robberies the victims were threatened
with a firearm
and in the third the 77-year old victim who was recovering from
broken ribs sustained in an accident was punched
in the head, thrown
on the floor and repeatedly kicked in the ribs while the appellants
threatened to shoot him. He was traumatised
and still suffered from
nightmares a year later at the trial. The court
a
quo
had
sentenced the accused to 10 years’ imprisonment on each of the
three counts. That resulted in an effective sentence of
30 years’
imprisonment.
[26]
In setting aside the effective sentence of 30 years, which he
found to be
‘
far
too severe and disturbingly inappropriate … the effect of
which is more likely to destroy than to reform’
and
imposing one of 18 years instead by ordering concurrency, Leach JA
described the offences as ‘not falling within the upper
echelons of the scale of severity’. He held the offences,
‘
even
viewed in their totality’, not to be the
‘
particularly
heinous’
offences
which would justify the extremely severe punishment of an effective
sentence of 30 years’ imprisonment
[17]
.
He concluded that, although severe, they were not associated with the
level of extreme violence or loss of life that all too often
occurs
in armed robberies.
In
casu
the
offences also did not fall in the category of the most heinous
crimes, but they were certainly more serious than those in
S
v Muller.
[27]
Leach JA cautioned that a sentencing court, when dealing with
multiple offences, must have regard
to the totality of the offender’s
criminal conduct and moral blameworthiness in determining an
effective and proportional
sentence.
[18]
With reference to what Holmes JA said in
S
v Harrison
[19]
namely
that mercy and not a sledgehammer is the concomitant of justice, he
stated that while punishment and deterrence are indeed
of utmost
importance when imposing sentences for armed robbery, a judicial
officer in doing so
‘
should
approach his task with a humane and compassionate understanding of
human frailties and the pressures of society which contribute
to
criminality’
[20]
.
He warned, furthermore, that an offender should not be sacrificed on
the altar of deterrence even though it is in
the interest of the
community that a sentence for armed robbery should act as a deterrent
to others.
[28]
He relied, furthermore, on Nicholas JA’s remark in
S
v Skenjana
[21]
that:
“
A
sentence of 20 years’ imprisonment is undoubtedly very severe …
My personal view is that the public interest is not
necessarily best
served by the imposition of very long sentences of imprisonment.
So far as deterrence is concerned, there
is no reason to believe that
the deterrent effect of a prison sentence is always proportionate to
its length. Indeed,
it would seem to be likely that in
this field there operates a law of diminishing returns: a point is
reached after which additions
to the length of the sentence produce
progressively smaller increases in deterrent effect, so that, for
example, the marginal deterrent
value of a sentence of 20 years over
say 15 years may not be significant.
…
Nor
is it in the public interest that potentially valuable human material
should be seriously damaged by long incarceration.
As I
observed in
S v Khumalo and Another
[1984] ZASCA 30
;
1984
(3) SA 327
(A) at 331, it is the experience of prison administrators
that unduly prolonged imprisonment brings about the complete mental
and
physical deterioration of the prisoner.”
[29]
The effective 18 years’ imprisonment, Leach JA stated, would
reflect the public’s
righteous indignation, act as a deterrent,
punish the appellants and hopefully induce them to walk a straight
path when released
back into society. I am of the view that in
the instant case where the Appellant was 23 when he committed the
offences and
was a first offender, in view thereof that there were
more offences and that the offences grew progressively more violent,
an effective
sentence of 25 years’ imprisonment would be the
most appropriate and proportional to the crimes, while still
accomplishing
all the feats described by Leach above. In my
view it would encompass a measure of mercy and allow for
rehabilitation. It
would, in addition, allow the setting
aside of the 5 year sentence erroneously imposed on Count 5 to have a
practical effect on
and be reflected in the effective sentence.
[30]
Binns-Ward, J, in
S
v Fortune
[22]
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
Criminal Procedure Act 51 of 1977
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”.
[31]
The structure of the concurrency order would allow, in my view, for
the gradation of the different ever more violent manifestations
of
the aggravating circumstances in the robberies
in
casu
to be reflected in the order.
[32]
An effective sentence of 25 years’ imprisonment will be
achieved by adding a further order of concurrency and ordering
5
years of count 6 to run concurrently with count 10.
WHEREFORE
THE FOLLOWING ORDER IS MADE:
1.
The appeal succeeds. The order of the court
a quo
is
set aside and replaced with the following:
a.
The appeal succeeds only to the extent set
out in (b) and (c) below;
b.
The conviction on Count 5 and the
concomitant sentence of 5 years’ imprisonment imposed on Count
5 are set aside.
c.
The sentences are otherwise confirmed as is
the order of concurrency, with an additional order that 5 years of
the sentence on count
6 is to run concurrently with the sentence on
count 10 to result in an effective term of imprisonment of 25
(TWENTY-FIVE) years.
H
MURRAY, AJ
I
concur and it is so ordered.
B
C MOCUMIE, J
For
the Appellant: Mr P L van der Merwe
Bloemfontein
Justice Centre
1
st
Floor, South Wing
Southern
Life Plaze Building
41
Charlotte Maxeke Street
BLOEMFONTEIN
For
the State: Mr R Hoffman
Counsel
for the State
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
1975(4)
SA 855 (A) at 857d-f
[2]
2005(2)
SACR 350 (WLD) at 352I-J
[3]
2013
(1) SACR 1
(CC) at [41]. See also S v Madiba
[2014] ZASCA 13
(unreported, SCA case
497/2013,
20 March 2014).
[4]
Hiemstra’s
Criminal Procedure, Issue 6 at 17-4.
[5]
2013(2)
SACR 533 (SCA) at [20].
[6]
2001
(1) SACR 469 (SCA)
[7]
2013
(2) SACR 505
(WCC) at [71]
[8]
2001
(1) SACR 469
(SCA) at par [12].
[9]
Guide
to sentencing in South Africa, 2
nd
Edition, at 179
[10]
1985
(4) SA 322
(ZHC) at 324 G.
[11]
S
v Pute 1990 (1) SACR 339 (C)
[12]
2012
(1) SACR 259
(SCA) at [8].
[13]
2015
(1) SACR 7
(ECG) at [32]
[14]
1977
(1) SA 602
(A) at 611 C - D
[15]
2012
(2) SACR 579
(ECG) at [11]
[16]
2012
(2) SACR 545
(SCA) at [10]
[17]
Supra,
at
[10] at 550b-c
[18]
Supra,
at
[9] at 549c-i
[19]
1970
(3) SA 684
(A) at 686A.
[20]
Corbett
JA in S v Rabie
1975 (4) SA 855
(A) at 866B-C.
[21]
1985
(3) SA 51
(A) at 541I – 555J
[22]
S
v Fortune,
supra,
at [12] at 187h-i