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[2013] ZAGPPHC 226
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Hlungwani v S (A37/2013) [2013] ZAGPPHC 226 (2 August 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT - PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: A37/2013
DATE:02/08/2013
In
the matter between:
YUZA
RICH
HLUNGWANI
..................................................................................
APPELLANT
and
THE
STATE
.........................................................................................................
RESPONDENT
JUDGMENT
N
V KHUMALO J
[1]
The Appellant was arraigned in the Regional Court in Giyani and
convicted of robbery with aggravating circumstances (“Count
1"), 2 Counts of housebreaking with intent to steal and theft
(“Count 2 and 3”) and unlawful possession of a firearm
in
contravention of s 3 of Act 60 of 2000 (“Count 5”). He
was sentenced to a term of 20 years imprisonment with all
counts
taken together for the purpose of sentence.
[2]
Notwithstanding the court a quo granting Appellant leave to appeal
against sentence only, he has proceeded to challenge his
conviction
as well, imploring the court to reconsider and-or review it without
having petitioned this court for leave. Absent such
an Application
this court does not have jurisdiction to hear the matter. S v Gentle
2005 (1) SACR 420
(SCA). Appellants motivates in his heads of
argument for the matter to be considered under the provisions of
Section 304 (4) of
Act 51 of 1977 (“the Act). The alternative
would have been to defer the hearing or determination of the Appeal
on conviction
until such leave has been obtained.
[3]
s 304 (4) of the Act is normally used by magistrates to initiate
review proceedings in terms of that section to have erroneous
convictions and sentences that have come to their notice corrected.
The courts have been found to be always prepared to exercise
their
powers in terms of this section where a defect is brought to their
attention by a prosecutor or an attorney S v Eli
1978 (1) SA 451
(E)
and S v Mmonchanyana 1968 )1) SA 56 (O). Counsel has also referred us
to -the matter of S v Liau
2005 (1) SACR 498
(T) a decision of this
court by Goodey and Du Plessis JJ when it became apparent to the
court that an Appellant who was granted
leave to appeal both
conviction and sentence was clearly also sentenced erroneously by the
magistrate without referring the matter
to the High Court, it then
posed a question if it was in the interest of justice to hear the
Appeal. At that stage the court will
hear argument on the Appeal
against conviction and consider, If Appeal against conviction must
succeed, the Appeal is heard and
the conviction and sentence are set
aside. If at that stage the court is of the opinion that the Appeal
has no prospect of success,
it is struck from the roll. In terms of
the court’s review competency in terms of s 304 (4), the
regional court sentence
is set aside and an order is made which the
regional court should have made.
[4]
In this matter Appellants’ Counsel argued that the conviction
of the Appellant on the charge of robbery with aggravating
circumstances in Count 1 was erroneous as not all the elements of
that crime were admitted in the s 112 statement that was submitted
on
his behalf. In particular alleged that the statement does not contain
an admission so to infer that the assault was aimed at
overcoming any
resistance with regard to the appropriation of the complainant’s
property. He further argues that no admission
was made as to the
presence of a firearm.
[5]
At commencement of the proceedings in the trial court, once Appellant
pleaded guilty, his Counsel read Appellant’s s 112
statement in
explanation of the plea, in which he made the following admissions:
“
I
admit that I was at Home 14C ON 12 October 2010. On this date I did
commit the following offences;
Count
1: I break and open the house of Terra Lesley Sodi. I took Samsung
E20, Nike tekkies, three cartons and cash money. My intention
was to
deprive the owner of his lawful property.
[6]
The magistrate then intervened and requested Appellant’s
representative to discuss and get accused’s signature,
Counsel
did and thereafter read into the statement the following: “on
the day in question, I admit that I was at Homo 14
C on 12 October
2010. On this date i did commit the following offences:
4.1.
Count 1: Is robbery with aggravating, I admit that I assaulted Terra
Lesley Sodi and I took away an amount of R1 200.00, three
cartons and
Nokia cellphone. I used a firearm to threaten him.”
Appellant
was at that point asked if he confirms his plea of guilty on that
charge and all the charges against him and his reply
was “ Yes
I admit your worship”. He was further asked if he confirms the
statement that his attorney has read out in
terms of Section 112 of
the Criminal Procedure Act and his reply was “Yes I confirm”.
[7]
The Appellant was very much alive to the amendment made to his
initial statement and further that he was admitting to assaulting
and
using a firearm to threaten the complainant with an intention to
deprive him of his property. It was apparent that he committed
the
offence as charged and the admissions therefore appropriate to the
charge. The word “evidence”, to a charge is
said to
include answers furnished by an accused in terms of s 112 (1) (b).
See S v Andrews
1984 (3) SA 306
(E) and S v Adam
1993 (1) SACR 444
(ECG). There was therefore enough evidence on the charge upon which
the court a quo returned a verdict of guilt.
[8]
The same complaint was proffered with regard to the 2nd and 3rd Count
of housebreaking with intent to steal. The Appellant clearly
admitted
to breaking and opening the house of Solane Sylvia Ngobeni and
Johanna Tiyane taking an amount of R1 200.00 and R1 100,00
respectively, Nokia cellphone and used a firearm to threaten. His aim
being to deprive the owner her property. The Appellant argued
that
there was no averment relating to entry into the house. The admission
clearly indicates that after breaking the house he obtained
from
therein the stolen goods intending to deprive the owner of its
possession. It is evident that the goods were obtained from
the
house, so there is no doubt that he gained entry after
breaking into the house. He also made
his intention known that he intended to deprive the owner of his or
her property.
[9]
The Appellant lastly challenged his conviction on the last count on
the basis that there is no admission if the object referred
to in
Appellant’s statement is a fire arm. The statement on that
count reads: "Possession of a firearm: I admit I was
at Homo 14
C on 4 February 2011. I was found in possession of a 9 millimeter
Parabeilum and I did not have a licence thereof. He
makes reference
to the type of firearm that was found in his possession that can
hardly be referred to as failure to indicate if
what is described is
a firearm. Appellant is really clinging on straws.
[10]
It is therefore clear that there was enough evidence before the court
that established Appellant’s guilt beyond reasonable
doubt on
all the charges for the court a quo to convict. The submission on
behalf of Appellant is devoid of merit.
[11]
Furthermore, Appellant is appealing against the globular sentence of
20 years imprisonment imposed by the trial court as shockingly
inappropriate alleging that the court a quo emphasized the
seriousness of the offences and failed to identify certain mitigating
factors* in favour of the Appellant that reduces his moral
blameworthiness.
[12]
It is trite that punishment is within the trial court’s
province to pronounce upon and the Appeal Court will not interfere
unless there has been a misdirection or an abuse of the discretion.
In S v Rabie
1975 (4) SA 855
(A) at 857D-F, the Appeal Court is
cautioned not to erode the discretion of the trial court and to alter
the sentence imposed by
the court only if the discretion has not been
judicially and properly exercised.
[13]
The scope of discretion that the courts enjoy in imposing punishment
has now been curtailed by the implementation of the mandatory
minimum
sentencing provisions in the Criminal Law Amendment Act 105 of 1997
(“the Amended Act”), that warrants departure
therefrom
only if the trial court were to find that there were substantial and
compelling circumstances. A judge's failure to abide
by these
sentencing guidelines in issuing a sentence would constitute an abuse
of judicial discretion. The Act might be limiting
but has not
eliminated the court’s discretion in imposing sentence in
respect of those offences. So all the factors traditionally
taken
into account continue to play a role (whether or not they diminish
moral guilt) to arrive at a proportional sentence as confirmed
by a
statement in S v Malgas
2001 (2) SA 1222
(SCA) that:
“
The
proportionality of a sentence cannot be determined in the abstract,
but only upon a consideration of all material circumstances
of the
particular
case, though bearing in mind what the legislature has ordained and
the other strictures referred to.”
[14]
To avoid any misdirection and to be fair to the offender and to
society when considering a sentence, a court, must then give
due
consideration to ail relevant factors, biended with a measure of
mercy, strike a balance between all the mitigating and aggravating
factors to come to a just and a proportionate sentence that a
particular offender deserves and meet the interest of society.
[15]
In S v Sometha
2001 (1) All SA 456
(EC) the court stated that:
“
An
appropriate sentence should thus reflect the severity of the crime
while at the same time give full consideration to all the
mitigation
and aggravating factors surrounding the person of the offender”
taking
into account the triad referred to in S v Zinn 1969 (2A) SACR at 537
(A) that is, the crime, offender and the interests of
society. The
interest of society is served by taking the main purpose of
sentencing, which is deterrence, rehabilitation, prevention
and
retribution, into consideration; see S v Swanepoel
1945 AD 444
at 455
and S v Whitehead
1970 (4) SA 4243(A).
[16] The emphasis or degree of
emphasis to be placed upon any of the factors is a matter within the
discretion of the trial court,
to be exercised judicially as well. If
the degree of emphasis is disturbingly inappropriate, in that it
cannot be said that the
sentencing court exercised its discretion
judicially, the court of appeal will interfere; See S v Makhaye
2011
(2) SACR 173.
[17]
The court a quo in sentencing the Appellant, confirmed its duty to
approach sentence with great care, to look at the Appellant’s
personal circumstances, the offence committed as well as the interest
of the community; the Zinn approach. With regard to his personal
circumstances the court took note that he is a first offender, 25
years old, only passed Standard 5 and was employed generating
an
income of R400 per month and noted to his credit his plea of guilt,
even though it inferred that the plea was not motivated
by remorse
but due to being found in possession of the stolen goods most of
which were recovered.
[18]
Then again, correctly so, the court took into account as well, the
seriousness of the offences that Appellant has committed,
the use of
a firearm and that he was on a criminal spree (all offences committed
in one day) depriving people of their property
and the prevalence of
the offences as aggravating. In balancing these factors, it arrived
at a conclusion that the element of violence
did not reduce the moral
guilt of the Appellant and therefore could not find any substantial
and compelling circumstances that
justify the deviation from the
prescribed minimum sentence as per the Act. It alluded to the fact
that if the matter is as serious
as this the status or persona!
circumstances of Appellant need not be the most important in
determining sentence, clearly persuaded
by the seriousness of the
offence and its nature not to deviate from the minimum prescribed
sentence. It confirmed sending a message
of intolerance of such
crimes to offenders but at the same time not destroying the person
and the need to balance the sentence
with mercy.
[19]
The court’s stance was endorsed in S v Vilakazi
2009 (1) SACR
552
SCA ON P547 by a statement that:
“
Once
it becomes clear that the crime is deserving of a substantial period
of imprisonment the questions whether the accused is married
or
single, whether he has two children or three, whether or not he is in
employment, are in themselves largely immateriai to what
that period
should be, and those seem to me to be the kind of ‘flimsy’
grounds that Malgas said should be avoided.
But they are nonetheless
relevant in another respect. A material consideration is whether the
accused can be expected to offend
again.”
[20]
it is clear that the personal circumstances gain a weighty
consideration for the purpose of sentence to determine if the
offender
is rehabilitative which the trial court I believe was
sensitive to, evident from its confirmation that its sentence is not
meant
to destroy the person but also to reflect the element of mercy
and for that purpose having considered the imposition of a globular
sentence for all 4 charges even though all had an element of violence
with force or threat of violence being used. Clearly recognising
the
guidance in S v Luke and Others
2012 ZAWC HC 9
16 Feb 2012 WCHC where
Gamble J with reference to Holmes JA in Rabie at 861-2 reminded:
“
judicial
officers of the importance of being fair to both the accused and to
society in handing down sentence. Justice, it was said,
includes the
element of mercy which is the hallmark of a civilized and enlightened
criminal justice system.”
[21]
I therefore find that there is no “weighty justification”
(to borrow from Gamble J’s language in S v Vilakazi)
to
interfere with the sentence of the court a quo. The sentence is fair
to the Appellant and society.
[22]
Under the circumstances I propose the following order:
[22.1]
Appeal is dismissed
------------------------------
N
V KHUMALO J
JUDGE
OF THE NORTH GAUTENG HIGH COURT I agree and it is so ordered
N
V KHUMALO JUDGE IN THE HIGH COURT
I
AGREE.
G
WEBSTER JUDGE IN THE HIGH COURT
Date
of Hearing : 29 July 2013
Counsel
for the Appellant : AdvVZNel
Legal
Aid SA
Counsel
for the Respondent : AdvJJKotze