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2014
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[2014] ZAFSHC 4
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Kganare v S (A83/13) [2014] ZAFSHC 4 (23 January 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. : A83/13
In
matter between:
TSHOLOFELO
MOSES KGANARE
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI,
AJP
et
MONALEDI, AJ
HEARD
ON:
25
NOVEMBER 2013
JUDGMENT
BY:
THE
COURT
DELIVERED
ON:
23
JANUARY 2014
[1]
This is an appeal against the sentence only. The appellant
stood trial in the Bloemfontein Regional
Court on two counts of
robbery with aggravating circumstances. Following his
conviction he was sentenced to 10 years imprisonment
in respect of
each count. The trial court specifically directed that the
sentences should run consecutively. The respondent
supported
the sentences imposed on the appellant.
[2]
The appellant was aggrieved. He applied for leave to appeal
against the sentence. On 7 December
2012 he was granted leave
to appeal.
[3]
The first charge against the appellant read as follows:
“
In
that upon or about 2010/01/14 and at or near Regional Division of
Free State, in the unlawfully and intentionally assault one
Lerato
Nkwe and did then with force take the following items from her, to
wit cellphone Sony Erricson W395, handbag, cash and toiletries.
All valued at R2800.00 her property or property or property in her
lawful possession, aggravating circumstances being that she
was
threatened with a screw driver which Tsholofelo put to her neck.”
[4]
The second charge against the appellant read as follows:
“
In
that upon or about 21/ 01/ 2010 and at or near Bloemfontein, in the
Regional Division of Free State, the accused did unlawfully
and
intentionally assault one Confidence Mtshungwane and did then and
with force take the following items from her, to wit Samsung
cellphone U700, wrist watch and Handbag all valued at R3 820.00
that she was threatened with a screwdriver pointed to her
neck.”
[5]
The appellant pleaded not guilty to both counts. He gave no
explanation of his plea.
[6]
The first complainant was Ms Lerato Miriam Nkwe. She testified
that she met the appellant in Bloemfontein
on 14 January 2010.
He was operating as a taxi driver. She stopped him and boarded
his taxi. Her aim was to come
to the city. The appellant
deviated from the correct route under a false pretext. Instead
of driving to the city, the
appellant drove the other way, left the
township, stopped at a secluded spot in the veld, threatened her with
a screw driver and
robbed her of her belongings. He then speed
away from the scene of the crime.
[7]
Ms Confidence Mtshumgwane was the second complainant. By and
large her version was substandially
similar to that of the first
complainant. The appellant used the pretty much the same
modus
operandi
to get the second complainant into his seemingly pirate
taxi and to lure her away. That being the case, it will serve
no
useful purpose to narrate it here.
[8]
The appellant elected to remain silent. Moreover, he called no
one to testify on his behalf.
Therefore the evidence tendered
by the prosecution was unchallenged when the appellant’s case
was closed.
[9]
The appellant was thereafter convicted as charged on both counts of
robbery with aggravating circumstances
as defined in
section 1
of the
Criminal Procedure Act 51 of 1977
. The robbery counts are
listed under
Part 2
Schedule
2 Act 105
of 1977 as amended.
[10]
The prescribed minimum sentence for a first offender who is convicted
of robbery with aggravating circumstances
is 15 years imprisonment
unless there are substantial and compelling circumstances to justify
the imposition of a lesser sentence.
[11]
The trial magistrate found in favour of the appellant that there were
substantial and compelling circumstance which
warranted deviation
from the prescribed minimum sentence of 15 years imprisonment.
It then deviated to the extent of 5 years
in respect of each count.
The appellant was therefore sentenced to 10 years imprisonment per
count. The direction by
the trial magistrate that the two
sentences should not run concurrently practically meant that the
appellant was sentenced to an
effective custodial term of 20 years.
[12]
Mr Nel, counsel for applicant, submitted that the effective sentence
of 20 years imprisonment was shockingly severe
and excessive –
and thus inappropriate. Counsel submitted that the trial court
failed to takes into account the extremely
harsh cumulative effect of
the two senteces imposed on the appellant. By so failing,
counsel concluded, the trial court committed
material misdirection.
He then urged us to interfere.
[13]
Mr Hoffman, counsel for respondent, disagreed. Counsel
submitted that the trial court did not materially
misdirect itself in
sentencing the appellant as it did. He then articulated his
argument by saying:
“
12.
Die
vonnis gesien is swaar, maar gegewe die omstandighede van hierdie
saak was die landdros geroepe om ‘n vonnis wat werklike
afskrikkingswaarde het, op te lê.”
[14]
In
S v Moswathupa
2012 (1) SACR 259
(SCA) at 263g it
was stated:
“
When
dealing with multiple offences a court must not lose sight of the
fact that the aggregate penalty must not be unduly severe.”
See
also
S
v Muller
2012 (2) SACR 545
(SCA) at 549d and
S
v Kruger
2012 (1) SACR 369
(SCA) at 373b-c.
[15]
Ordering two or more sentences to be served concurrently is a
convenient method of ensuring that the cumulative
effect of sentences
imposed on an offender is not too severe in the light of the
aggregate sentence. See
S v Cele
1991 (2) SACR
246
(A) at 248j.
[16]
In
S v Coales
1995 (1) SACR 33
(A) at 37a-d it was
stressed that the cumulative effect of the sentences imposed must be
taken into account.
[17]
During the course of sentencing the appellant the trial court
commented:
“
You
should not think I am overemphasising its seriousness. Violence
has plagued and bedevilled the community of South Africa.
The
people are outraged by it.”
[18]
The trial court laid undue emphasis on the seriousness of the offence
of robbery in general and its adverse impact
on the interest of
society. Compare p 253: 12 – 15 record. The
violence empoloyed by the appellant in respect
of each incident was
so minimal that it could not be fairly described in such a strong
language as used by the regional magistrate.
See
S v
Rabie
1975 (4) SA 855
(A) at 861D,
S v Toms
;
S
v Bruce
[1990] ZASCA 38
;
1990 (2) SA 802
(A) at 806H-J.
[19]
The magistrate failed to properly individualise the sentence and has
failed to deal with the matter on its own
peculiar facts.
“
Circumstances
vary and punishment must ultimately fit the true seriousness of the
crime.”
See
S
v Samuels
2011 (1) SACR 9
(SCA) at 13c-d and
S
v Ingram
1995 (1) SACR 1
(A) at 8j-9a.
That
salient principle was, in our view, overlooked in this matter.
As with all crimes, the crime of robbery has a variety
of shades and
grades. See
S
v Collins
1990 (1) SACR 577
(A) at 581c.
[20]
Mr Nel contended in para 3 of the applicant’s heads of argument
that:
“
The
trial court committed the error of merely reciting the
well-established principles that ought to be taken into account when
determing an appropriate sentence, but failed to apply these
principles to the particular circumstances in this matter.
Compare:
S
v Moswathupa
2012 (1) SACR 259
(SCA) at 262e-f.”
In
our view the critique was justified. The trial court failed to
demonstrate that it appreciated that salient principle as
laid down
in
S
v Collins
,
supra
and
S
v Cele
,
supra
in making the direction that the appellant serve the sentences
consecutively.
[21]
In the course of passing sentence the trial magistrate made some
unfortunate remarks and drew some questionable
inferences which could
not be sustained by the proven facts. The following instances
illustrate the point:
“
4.4.1
‘… you were almost a serial robber”
[Record p 253 / 21]
The appellant had no
previous conviction of robbery. On the facts, he could not be
fairly said to have any criminal propensity
to rob.
4.4.2 ‘I do believe
that had [the complainants] offered any resistance of some nature …
you could have
inflicted some bodily injuries.’
[Record
p 257 / 6 - 9]”
The
foundation for the belief was very dubious.
[22]
Although severe, the indicents
in casu
were not associated
with the level of extreme violence or loss of life that unfortunately
all too often occurs in armed robberies.
See
S v Muller
2012 (2) SACR 545
(SCA) at 550c:
“
The
offences in question therefore cannot be regarded as falling within
the upper echelons of the scale of severity.”
The
same can be justly said about the offences in the instant appeal.
[23]
The only “violence” apparent during the two incidents
entailed the following:
As regards the incident
of
14 January 2010:
(i)
Screwdriver
against the neck of the complainant. See p4: 11 – 12
record.
(ii)
“
Pushing”
the complainant out of the vehicle. See p 5: 19.
As regards the incident
of
21 January 2010:
(i)
Screwdriver
pointed towards the neck of the complainant. See p25: 15 –
16 record.
(ii)
Grabbing
the clothes of the complainant. See p25: 22 – 23 and also
p35: 22 – 24.
In brief, that was the
sum-total of all the violence the appellant had inflicted on the two
victims.
[24]
The value of what was stolen on each occasion was by no means at the
level that is so often the case in many of
the robberies which daily
entertain the courts. Compare:
S v Muller
2012
(2) SACR 545
(SCA) at 550b-c. There the loot was tens of
thousands of rands. Here the total value of the loot less than
R7 000,00.
In
casu
the two incidents were substantially less severe than those in the
Muller
case
supra
.
[25]
The following erroneous remarks by the trial magistrate regrettably
created the perception that the trial court
was obviously not just
angry but that retribution, and retribution alone, was in the
forefront of the regional magistrate’s
mind:
“…
my offenders like
you would know their targets …”
[Record
p 254: 24]
“…
I believe you must
have committed other similar offences without a trace.”
[Record
256: 21 - 22]
[26]
In our view the trial court overplayed the magnitude of the crime and
overstressed the interest of society at the
expense of the
appellant’s person as an individual in conflict with the law.
See
S v Mhlakaza
1997 (1) SACR 515
(CC) at 518e-g and
S
v Maseola
2010 (2) SACR 311
(SCA) at 315a-b.
In
the result we hold the firm view that the magistrate imposed a
sentence that is not fair to the appellant or in the interest
of
justice. See
S v Jimenez
2003 (1) SACR 507
(SCA)
at 519b and
S v L
1998 (1) SACR 463
(SCA) at 468f –
j. The cumulative sentence is not commensurate to the
magnitudes of the crimes committed.
[27]
In sentencing the appellant the following mitigating factors and the
value to be attached to each of them were
of vital significante:
- He
was26 years old.
- He
was unmarried.
- He
completed standard 8 as highest qualification.
- He
was in incarcerated from 21 January 2010 to 24 November 2011.
- He
was a first offender.
[28]
On the facts we are persuaded that the effective sentence of 20 years
imprisonment or the cumulative effect of
the two sentences was
disturbingly severe and thus inappropriate. The trial
magistrate’s direction that the two sentences
should run
consercutively constituted a material and appealable misdirection.
In view of such a misdirection, appellate interference
is warranted.
It is our respectful view that 4 years of the sentence imposed in
connection with the second charge should
run concurrently with the
sentence imposed in connection with the first charge. An
effective sentence of 16 years imprisonment
appears to us to be
fitting and appropriate punishment for the appellant.
[29]
Accordingly we make the following order:
29.1 This appeal
succeeds;
29.2 The conviction
stands unchallenged;
29.3 The two
individual sentences of 10 years imprisonment are confirmed;
29.4 The direction
by the trial court that the two sentences should run consecutively is
set aside and substituted with the
direction stated below;
29.5 The 4 years of
the sentence imposed in respect of the second count shall run
concurrently with the sentence imposed in
respect of the first count;
29.6 The appellant
shall accordingly serve an effective sentence of 16 years
imprisonment which shall be deemed to have been
imposed on 24
November 2011.
________________
__________________
M.H.
RAMPAI, AJP
S.R.
MONALEDI, AJ
On
behalf of the appellant: Adv. S. J. Nel
Instructed
by:
Mpobole
& Partners
LOEMFONTEIN
On behalf
of the defendant: Adv. R. Hoffman
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/ebeket