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2014
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[2014] ZAFSHC 213
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Moletsane v S (A13/2013) [2014] ZAFSHC 213 (6 November 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION:
BLOEMFONTEIN
Appeal Number: A13/2013
DATE: 06 NOVEMBER 2014
In the matter between:
MAKHENE STEYN
MOLETSANE
..............................
Appellant
And
THE
STATE
..................................................................
Respondent
CORAM: DAFFUE, J et MOENG, AJ
JUDGMENT:MOENG, AJ
HEARD ON:3 NOVEMBER 2014
DELIVERED ON: 6 NOVEMBER 2014
[1] On 25 November 2011, the appellant
herein was charged in the Thaba Nchu regional court as accused 3
together with two other
accused’s on three counts, being
robbery with aggravating circumstances, contravention of section 3
(possession of an unlicensed
firearm) and contravention of section 90
(possession of ammunition) of the
Firearms Control Act 60 of 2000
.
[2] Accused 1 was found guilty on all
three counts but accused 2 and appellant were convicted on the
robbery count and acquitted
on the possession of an unlicensed
firearm and ammunition counts. The court a quo concluded that
substantial and compelling circumstances
existed that warranted a
lesser sentence. She thereafter sentenced the appellant to 12 years
imprisonment.
[3] The appellant sought leave to
appeal against both his conviction and sentence but was only granted
leave to appeal against sentence
by the court a quo. His petition to
the Judge President for leave to appeal against conviction was
unsuccessful. This appeal is
therefore only directed at sentence. The
appeal by accused 1 has already been concluded but the position with
regard to accused
two is not clear at this stage.
[4] The state alleged in count one that
on 5 September 2008, the accused’s robbed Thato Lithokong of a
Toyota Hi Ace minibus
as well as one cellphone at gun point. A short
factual background disclosed that the complainant was driving the
minibus in question
in the course of his employment as a taxi driver
in Botshabelo.
[5] He was stopped by the appellant and
his co accused’s pretending to be commuters at around 6:00 am.
He proceeded further
on this route and as he was about to pick up
another passenger, the three accused’s pointed firearms at him
and ordered him
to drive in the direction of Dewetsdorp. He was later
forced out of the minibus and robbed of his cellphone.
[6] He was assisted by a passing
vehicle and taken to the Boithuso Police Station where he reported
the incident. The three were
soon thereafter arrested being in
possession of the minibus and the complainant’s cellphone.
[7] In imposing sentence, the regional
magistrate took into account that the appellant was 26 years old,
that he was unmarried with
a 3 year old child and that he was
permanently employed before his arrest. She also took into account
that the accused had been
in custody awaiting trial for 3 years and 5
months and that he was a first offender. She lastly considered that
the victim did
not sustain any physical injuries.
[8] The court a quo was however also
alive to the seriousness of the offence indicating that the mere
inclusion of this offence
under the provisions of
section 51(2)
of
the Act was indicative of the seriousness thereof. She also
concluded that the offence was clearly premeditated and that the
minibus and cellphone were not recovered with their assistance. She
resolved that the ordeal should have been traumatic on the
complainant and that the community had to be protected against such
criminal activities.
[9] The highlight of her conclusion was
that the position of appellant differed from that of accused 1 and 2
as he was a first offender
though also incarcerated as an awaiting
trial prisoner for the same period of time. This in her view was
substantial and compelling
to warrant a deviation from the minimum
sentence and she imposed a sentence of 12 years imprisonment.
[10] I should pause to comment that
accused 1 and 2 were both sentenced to 15 years imprisonment in
respect of the robbery count.
The court a quo concluded that the term
spent in custody awaiting trial could not be regarded as substantial
and compelling in
their case having regard to their previous
convictions.
[11] Accused 1 however successfully
appealed against his sentence. Rampai J held that the accused had
duly paid his debts to society
for his past criminal activities and
that the period spent in custody was a strongly mitigating factor
which could not simply be
ignored on account of his previous
convictions. He concluded that the marginal differences in the degree
of participation between
the offenders did not warrant
differentiation in sentencing and substituted the sentence to 12
years imprisonment.
[12] On behalf of the appellant, Mr.
Pretorius standing in for Mr. Makhene, who compiled the heads of
argument, conceded that the
12 year sentence is not disproportionate
to the offence committed. He however stated that the sentence for
accused 1 was reduced
to 12 years imprisonment by Rampai J and
bearing in mind that appellant was a first offender as opposed to
accused 1, we should
consider reducing his sentence.
[13] Mr. Strauss for the respondent was
however of the view that the circumstances between appellant and
accused 1 did not differ
such that it would warrant different
sentences. He argued that their degree of participation in the
commission of the offence did
not vary to such an extent that would
warrant different sentences.
[14] In every appeal against sentence
the Court hearing the appeal should be guided by the principle that
punishment is pre-eminently
a matter for the discretion of the trial
Court and the Court hearing the appeal should be careful not to erode
such discretion.
The sentence should only be altered if the
discretion has not been judicially and properly exercised. The court
hearing the appeal
should only interfere if the sentence is vitiated
by irregularity or misdirection or is disturbingly inappropriate.
(See S v Rabie
1975 (4) SA 855
(A).)
[15] One should look at the ultimate
cumulative effect of all the circumstances to see whether they
justify a departure from the
prescribed sentence. Any aggravating
factors may lead to an upward course thereby an increase in the
minimum sentence and conversely,
some mitigating factors, viewed
cumulatively with all other circumstances, may lead to a downward
course, thereby the imposition
of a lesser sentence. What should
ultimately be achieved is for the sentence to be proportionate to the
crime.
[16] As indicated here above the main
factor that the court a quo took into account in deviating from the
prescribed minimum sentence
was that the appellant had been in
custody awaiting trial for 3 years and 5 months and that he was a
first offender.
[17] Time spent in custody while
awaiting trial is traditionally taken into account for purposes of
sentencing. In S v Stevens &
Another
1994 (2) SACR 163
(W) at 168
E to G, the view was that the agonising period of an accused spent
behind bars while awaiting his trial was the equivalent
of a sentence
twice that length. Such time is usually deducted from the sentence
of imprisonment on the grounds that a period
of incarceration has
already been undergone.
[18] This view was however criticized
in S v Radebe and Another
2013 (2) SACR 165
(SCA). The Court held
that there should be no rule of thumb in respect of the calculation
of the weight to be given to the period
spent by an accused in prison
awaiting trial. The circumstances of an individual accused must be
assessed cumulatively in each
case in determining the extent to which
the sentence proposed should be reduced and whether such period
qualifies as substantial
and compelling.
[19] A better approach, so the SCA
held, is that the period in detention pre-sentencing is but one of
the factors that should be
taken into account in determining whether
the effective period of imprisonment to be imposed is justified.
[20] A mathematical calculation of
merely subtracting the period spent in custody from the 15 year
prescribed sentence would therefore
lead to an absurdity as all the
circumstances should be cumulatively viewed and weighed against each
other to determine what would
be suitable under the circumstances.
[20] The court a quo also took into
account that the appellant was a first offender in reducing his
sentence. In this regard,
section 51(2)(b)
provides that a court
shall sentence a person who has been convicted of an offence referred
to in
“(a)
Part II
of Schedule 2, in
the case of-
(i) a first offender, to imprisonment
for a period not less than 15 years;
(ii) a second offender of any such
offence, to imprisonment for a period not less than 20 years; and
(iii) a third or subsequent offender of
any such offence, to imprisonment for a period not less than 25
years;”
[21]
Section 51(2)(b)
creates a
differentiation between the sentences prescribed for first, second,
third or subsequent offenders. The Legislature has
clearly made
provision for first offenders and has provided for their lesser
degree of moral blameworthiness as compared to second
and subsequent
offenders. A first offender therefore already derives the benefit of
a lesser sentence and this factor can in my
view not be taken into
account in further reducing the prescribed minimum sentence.
[22] Argument was advanced in the heads
that the appellant is still of a youthful age. It was also argued
during sentence proceedings
that he was only 22 years of age when
this offence was committed. He is admittedly therefore at an early
and prime stage of his
adulthood.
[23] The main reason why age is
normally considered as a mitigating factor is as a result of the
maturity of the concerned offender,
hence the younger the offender
the more lenient courts would be when sentencing and conversely for
reasons of compassion, old age
would attract leniency.
[24] In S v Mabuza and Others
2009 (2)
SACR 435
(SCA) at par [23] Cachalia JA found that although
youthfulness can in certain circumstances constitute substantial and
compelling
circumstances, the legislature:
“... in requiring a sentencing
court to depart from the prescribed sentence in respect of offenders
who have attained the
age of 18 only if substantial and compelling
circumstances justify this departure... has clearly intended that
youthfulness no
longer be regarded as per se a mitigating factor.”
[25] It was further held in S v
Matyityi
2011 (1) SACR 40
(SCA) that:
“a person of 20 years or more
must show by acceptable evidence that he was immature to such an
extent that his immaturity
can operate as a mitigating factor.”
[26] The appellant conversely appeared
to be mature. He was at age 22 already employed as a floor manager at
Cash Built Botshabelo,
and this position is indicative of the
responsibilities that were upon his shoulders. He further took an
active role in the commission
of the offence. I am therefore of the
view that his age becomes an irrelevant factor and thus not
mitigating having regard to
these factors.
[27] The appellant has a minor child;
no evidence was led to determine whether this child was residing with
him and to determine
whether he could be regarded as the primary care
giver of the said child. It was merely indicated that he has a
girlfriend and
that he was maintaining the child. It is not clear
from the record whether the mother to the child is employed or not.
[28] Even if he may be regarded as the
primary care giver, the view expressed in S v M (Centre for Child Law
as amicus curiae)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC), that parents should not be
allowed to use their children as a pretext for escaping the otherwise
just consequences of their
own misconduct since this would be a
mischaracterization of the interests at stake, will be appropriate
under the circumstances.
[29] One should in addition take into
account that hijacking of motor vehicles is prevalent country wide.
This minibus taxi was
used to generate an income and was out of
operation during this ordeal. Taxi drivers are an easy target of this
kind of robbery
and are at the mercy of commuters who stop them. This
incident is indicative of the fact that their safety is never
guaranteed
since they cannot choose the commuters that board their
taxis.
[30] I am satisfied that there was no
misdirection on the part of the court a quo based on the cumulative
effect of the factors
that she took into account and based on the
concession by Mr. Pretorius that the sentence imposed by the regional
magistrate is
proportionate to the offence.
[31] The issue that remains, although
only raised during the appeal deliberations, is whether the sentence
of imprisonment for 12
years warrants interference on the ground of
its disparity from the sentence imposed on accused 1 by Rampai J on
appeal.
[32] The argument in casu is that the
sentence of accused 1 and appellant should differ based on the
previous convictions of accused
1 as opposed to the clean slate that
appellant has. It should be noted that this was also a factor that
the court a quo took into
account in imposing a lesser sentence on
appellant.
[33] It is a well-established principle
that justice is best seen to be done in the matter of sentence, if
participants in an offence
who have equal degrees of involvement are
punished equally, if there are no personal factors warranting
disparity.
[34] In S v Giannoulis
1975 (4) SA 867
(A) Holmes JA, after having reviewed a number of judgments over the
past 60 years, concluded that there was a distinct and fairly
consistent thread running in the same general direction in
determining the parity of sentences between co participants.
[35] The following principles were set
out:
1. In general, sentence is a matter for
the discretion of the trial court. Disparity in the sentences imposed
on participants in
an offence (whether tried together or in separate
courts) will not necessarily warrant interference on appeal.
Uniformity should
not be elevated to a principle, at variance both
with a flexible discretion in the trial court and with the accepted
limitation
of appellate interference therewith.
2. Where, however, there is a
disturbing disparity in such sentences, and the degrees of
participation are more or less equal, and
there are not personal
factors warranting such disparity, appellate interference with the
sentence may, depending on the circumstances,
be warranted. The
ground of interference would be that the sentence is disturbingly
inappropriate.
3. In ameliorating the offending
sentence on appeal, the Court does not necessarily equate the
sentences: it does what it considers
appropriate in the
circumstances.
[36] The manner of approaching such
disparity of sentence on appeal, where two or more accused are
jointly tried and are sentenced
by the same court, or in this
instance where the sentence of the co participant was reduced on
appeal, will be to determine the
degrees of involvement and any
factors personal to each accused, affecting his sentence.
[37] The facts in casu revealed that
all three accused were in possession of firearms, appellant searched
and removed the victim’s
cellphone and he drove off in the
company of his accomplices. His personal circumstances and that of
accused 1 were similar in
that both were in their mid-twenties when
they were sentenced, both were unmarried, were gainfully employed and
both had one minor
child.
[38] The only difference related to
their past criminal conduct. Rampai J in my view correctly concluded
that accused 1 had paid
his dues to society through the sentences
that were imposed. As indicated here above, the Legislature has
clearly made provision
for first offenders and has provided for their
lesser degree of moral blameworthiness as compared to second and
subsequent offenders.
A first offender therefore already derives the
benefit of a lesser sentence through the provisions of
section
51(2)(b).
[39] What is noteworthy is the
conclusion by Rampai J that the marginal differences in the degree of
participation between the offenders
did not warrant differentiation
in sentencing. He thereby ensured that there was parity between the
two sentences and also imposed
a sentence of 12 years on accused 1.
[40] I am therefore satisfied that the
sentences imposed on appellant and accused 1 are proportionate having
regard to the factors
I mentioned here above. I am also satisfied
that the sentence of 12 years was appropriate in the circumstances of
the case.
ORDER
[41] The appeal against sentence is
dismissed.
L.B.J. MOENG, AJ
I concur.
J.P. DAFFUE, J
On behalf of the appellant: Mr. K.
Pretorius
Instructed by: Justice Centre
BLOEMFONTEIN
On behalf of the respondent: Adv. M.
Strauss
Instructed by: Director: Public
Prosecutions
BLOEMFONTEIN