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[2015] ZAFSHC 207
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Khombelayo and Another v S (A110/2015) [2015] ZAFSHC 207 (15 October 2015)
THE
HIGH COURT
OF SOUTH
AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No. A 110/2015
In
the matter between:
LAZARUS
KHOMBELAYO
1
st
Appellant
MOEKETSI
MOTLOKOA
2
nd
Appellant
and
THE
STATE_
Respondent
CORAM:
MOLEMELA JP
et
NAIDOO, J
JUDGMENT
B
Y:
NAIDOO,J
HEARD
O
N:
5
OCTOBER 2015
DELIVERED
ON:
15
OCTOBER 2015
NAIDOO
J
[1] The appellants were charged in the
Regional Court, Petrus Steyn with one count of robbery. They pleaded
not guilty but were
convicted, as charged, on 12 September 2014 and
sentenced on 17 October 2014 to Thirty Six (36) months' imprisonment,
Eighteen
(18) months of which were suspended for Five (5) years on
condition that they are not, during the period of suspension,
convicted
of robbery or any competent verdict thereon. The appellants
are before us on appeal against their sentences, after the trial
court
granted them leave to appeal against sentence only. Ms L Smit
appeared for the appellants and Mr FJ Pienaar appeared for the State
in this court.
[2] By way of background, the
complainant left his mother's home after a birthday party in her
honour and was walking alone to his
sister's home at about 3h30 in
the morning of 6 July 2014. He noticed two males approach him from
behind and as he tried to jump
over a fence they accosted him,
assaulted him and robbed him of his money. He then used his cellular
telephone to call his family
and advise them of what had happened. A
few minutes later the two males returned, threw the complainant to
the ground and robbed
him of his cellular telephone. He was stabbed
three times with a sharp object during this incident. His money was
not recovered
but his cellular telephone was recovered some time
later. The complainant was able to identify the two appellants as his
assailants
as the lighting in the area was good.
[3] The version of the appellants
is that at the relevant time, they were returning from a tavern and
were on their way to
another tavern, when the first appellant
insulted the second appellant. The complainant thought he was the
target of the insults
and attacked the first appellant. The second
appellant then intervened and had to assault the complainant in order
to stop
him from assaulting
the first appellant. The
complainant then
got up and ran away, dropping his cellular telephone
in the process. At this stage the second appellant recognised the
complainant
as someone he knew. He picked up the complainant's
cellular telephone for safekeeping and intended to return it to him.
It seems
that the cellular telephone was claimed before he could
return it to the complainant. The complainant denied this version,
asserting
that he did not know the appellants and it was they who ran
away when the owner of a nearby house switched on the lights of her
house to investigate the commotion. The version of the appellants was
rejected, resulting in their conviction.
[4] I turn now to deal with the issue
of sentence. Both appellants contend that the sentence in this matter
is inappropriate and
shocking, in that it was out of proportion to
the accepted facts of the case and the personal circumstances of the
appellants.
4.1
The personal circumstances of the first appellant are that:
•
he was 20
years old at the time of the commission of the offence;
•
he is single
and has no children;
•
he is
unemployed and lives with his father
•
he is a first
offender
4.2
The second appellant's personal circumstances are that:
•
he was 18
years old at the time of commission of the offence;
•
he is single
and has no children;
•
he is a Grade
11 student at a secondary school;
•
he lives with
his grandmother
Both appellants were assessed by a
Correctional Services Officer who compiled reports in respect of each
appellant. The Correctional
Officer recommended that a sentence of
Correctional Supervision be imposed on both appellants for a period
to be determined by
the court, while acknowledging that this type of
crime is very serious and that there is an outcry in the community
against violent
and aggressive crimes such as in the present matter.
The Correctional Officer also acknowledged that the sentence must be
in line
with the seriousness of the crime.
[5] Ms Smit argued that the trial
court erred in not accepting the recommendations of the Correctional
Officer and in not imposing
a sentence of Correctional Supervision.
She asserted that this is an appropriate case for the imposition of
Correctional Supervision,
given the ages of the two appellants and
that the second appellant was still attending school at the time of
commission of the
offence.
[6] The position regarding the ability
of an appeal court to interfere in a sentence has been well settled
through the cases over
the years. It is generally accepted in our law
that an appeal court should interfere with the sentence imposed by a
trial court
only if the trial court has misdirected itself in the
imposition of sentence, resulting in a sentence which is so
inappropriate
that it induces a sense of shock. Mr Pienaar, on behalf
of the respondent, in his Heads of Argument, referred us to the case
of
S
v
Pillay
1977
(4)
SA 531
(A)
at
p
535
E-F
where
principle
in
this
regard
1s
expressed
as
follows
by Trollip
JA
"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
not
by
itself
sufficient to entitle the
Appeal Court
to interfere with the
sentence; it must be of such a nature, degree, or
seriousness
that
it
shows,
directly
or
inferentially,
that
the Court did
not exercise
its discretion
at all or exercised
it improperly or
unreasonably. Such a misdirection is usually and conveniently
termed
one
that
vitiates
the
Court's
decision
on sentence."
[7]
In the
case
of
S
v
Rabie
1975
(4)
SA
855
(A), which
we
were also referred
to by
the respondent,
Holmes
JA
set
out
on page
857
the
following
guiding
principles
with regard
to interference
with
a sentence
on appeal:
"1.
In every appeal against sentence, whether imposed by a magistrate or
a
Judge, the Court hearing
the appeal
-
(a)
should be
guided by
the principle
that punishment is
"pre-eminently a
matter
for
the
discretion of
the
trial
Court";
and
(b)
should be
careful not
to erode such discretion:
hence the further principle that the sentence should only
be
altered
if
the
discretion
has
not
been "judicially and
properly exercised".
2.
The test under (b) is whether the sentence
is vitiated
by irregularity or
misdirection or is disturbingly
inappropriate."
This
principle was followed by Holmes JA
in
S
v
Giannoulis
1975 (4) SA
867 (A).
[8] The trial court balanced the
personal circumstances of the appellants against the aggravating
circumstances that it considered
were present in this matter, namely,
that the offence is very serious,
that the
interests of society demanded
stern sentences in such matters and that the appellants showed
no remorse. It is
apparent from the reasons for sentence
that the trial court also took into account that the appellants
were before
it as first offenders and that they had
spent approximately five
weeks
in custody from the day they were
convicted to the day they were sentenced.
[9] The trial court correctly pointed
out that the appellants ought to have been charged with two
counts of robbery (with
aggravating circumstances, given the injuries
sustained by the complainant), which would have brought the matter
within the jurisdiction
of the Regional Court, where the Criminal Law
Amendment Act 105 of 1997 (Minimum Sentences Act) would have been
applicable. The
Minimum Sentences Act prescribes a minimum sentence
of Fifteen (15) years' imprisonment for robbery with aggravating
circumstances.
The trial court stated that it had the option of
referring the matter to the Regional Court for sentencing but
refrained from doing
so because the appellants were not, at the
outset, informed of the impact of the Minimum Sentences Act or
the option
of referring the matter to the Regional Court for
sentencing. I agree with Mr Pienaar's submission that the appellants
should consider
themselves fortunate that they were not charged with
two counts of robbery with aggravating circumstances because there
were two
separate incidents. Likewise, they are fortunate that the
trial court did not refer the matter to the Regional Court for
sentencing.
[1
0]
To my mind, the trial court appropriately interrogated the
mitigating as well as the aggravating factors relevant to this case.
I cannot find that that the court over-emphasised the aggravating
factors or attached too little weight to the personal circumstances
of the appellants, as argued by Ms Kruger. The trial court was
required to perform a fine balancing act in considering the various
competing factors to determine an appropriate sentence.
[11] In my view, the court properly
balanced the seriousness of the offence, the interests of society and
the interests of the appellants.
The court was not persuaded by the
recommendations of the Correctional Officer, as it was of the view
that the seriousness of the
offence was watered down and underplayed
in the pre-sentence reports compiled by the Correctional Officer. The
court was also of
the view that Correctional Supervision was not an
appropriate sentencing option as it would have the effect of
over-emphasising
the personal circumstances of the appellants to the
detriment of the other two relevant factors, namely the interests of
society
and the seriousness of the offence. I agree with this
reasoning. It must also be borne in mind that it was the second
appellant
who stabbed the complainant, thus increasing the
seriousness of the offence significantly. I cannot, therefore, find
any misdirection
on the part of the trial court which warrants the
interference of this court in the sentences that it imposed.
[12] In the circumstances, the
following order is made:
12.1 The appeal against
sentence is dismissed.
12.2 The convictions and
sentences of the appellants are confirmed
________________________
NAIDOO, J
I agree
________________________
MOLEMELA, JP
On
behalf of the Appellant: Ms L Smit
Instructed
by:
Bloemfontein Justice Centre
Ground
Floor, Office
No
11
2nd
Floor, St Andrew
Centre
St
Andrew
Street
Bloemfontein
On
behalf of the Respondent: Mr FJ Pienaar
Instructed
by:
The State
Bloemfontein