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[2013] ZAGPPHC 266
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Sono v S (A311/2013) [2013] ZAGPPHC 266 (19 August 2013)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO: A311/2013
DATE:19/08/2013
In
the matter between:
HENRICK LILEK SONO
and
THE
STATE
…...............................................
RESPONDENT
JUDGEMENT
DE
VOS J
[1]
In this matter the Appellant was convicted in the Regional Court,
Soshanguve, on two charges of robbery with aggravating circumstances
and sentenced to 15 (fifteen) years imprisonment on each count.
Effectively a sentence of 30 (thirty) years imprisonment was imposed.
The Appellant was granted leave to appeal against both the
convictions and sentences imposed. The Appellant now approaches this
Court on appeal against both the convictions and sentences.
[2]
The conviction on Count 1On the First Count, the State called a
single witness, Mr Themba Skhosana, the Complainant. The Complainant
testified that on the 18th September 2011 he consumed five to six
dumpies of Black Label beer at Derrick’s Tavern in Block
G,
Soshanguve between 22h00 and 01h00 in the morning when he left the
tavern. He testified that he was not drunk and he managed
to leave
the tavern alone and proceeded to his house. It is also common cause
that the Appellant was also present at Derrick’s
Tavern on that
evening and was seen by the Complainant. On his way to his home he
saw three people following him. They were walking
in the same
direction as he was going but on the opposite side of the street.
They were about fifteen metres away from him. He
then realised that
the three persons were following him and they started running in his
direction. When they were about six metres
away from him the
Complainant also started to run. He yelled for help but the three men
apprehended him. Just before they apprehended
him he realised that he
could not run away from them and he turned around to face them. He
then tried to ask them what they are
doing but immediately thereafter
he was struck on his mouth. He fell down. He testified that one of
the assailants was the Appellant.
He knows him very well. I will deal
with this aspect at a later stage. While he was on the ground the
Appellant throttled him for
a period of three to four minutes. He was
also struck by a hard object on his teeth. As a result he lost some
of his teeth. He
testified that the Appellant was the one who struck
him on his mouth. During this period he wrestled with his assailants.
One of
them searched his pockets whilst he was trying to push the
Appellant away from him. He then lost consciousness. Later that night
he was woken up by two men who were wearing ZCC badges. His cellphone
and R280.00 (Two Hundred and Eighty Rand) in cash were missing.
He
lost some teeth and sustained injuries on his head. He then went home
to sleep and the next morning he reported the robbery
to the Police.
[3]
It is not in dispute that the Appellant is well-known to the
Complainant. It is common cause that they grew up together in Block
G, Soshanguve. They used to greet each other when they met. At some
stage they were together in prison at Newlock, before the robbery
took place. On the night of the robbery the Complainant saw the
Appellant at Derrick’s Tavern.
[4]
It is further common cause that on the Complainant’s version
the place where the robbery took place has sufficient lighting.
Some
of the houses in that area have outside lights and there is also an
Apollo light in the area.
[5]
The Complainant conceded during cross-examination and in chief that
he was unable to identify the other two robbers. He recognised
the
Appellant when the group came running in his direction. When he laid
the complaint at the Police he identified the Appellant
to the Police
as one of his assailants.
[6]
The Appellant also testified. He denies that he and two other people
robbed the Complainant. His version is that when the tavern
closed,
he and his girlfriend also left. Outside the tavern they saw four
people fighting/ wrestling. The Appellant then decided
to intervene.
On approaching the men, three of them ran away. It is then that the
Appellant realised that it was the Complainant
who was lying on the
ground. According to him the Complainant then raised his head and
started accusing him that he, the Appellant,
had robbed him. The
Appellant and his girlfriend then left.
[7]
The Appellant’s girlfriend, Edna Ledwaba, also testified on
behalf of the Appellant. She testified that she left the tavern
in
the presence of the Appellant. She testified that she was walking
with the Appellant and when they turned at the corner they
saw people
fighting.
She said that the perpetrators were assaulting the Complainant,
Themba Skhosana. She also said that she saw the attackers
running
away. No-one was lying on the ground and nobody fell on the ground at
any stage. According to her, the Appellant and the
Complainant were
on their feet, busy arguing.
[8]
There are serious discrepancies between the Appellant’s and his
girlfriend’s respective versions. For example:
8.1
She saw the Complainant after the Appellant ran towards the group of
people who were busy fighting. When she arrived at the
point where
the Complainant was robbed, the Complainant was accusing the
Appellant that he robbed him and that he was going to
lay a charge of
robbery against him. If her version is to be accepted i.e. that she
never lost sight of the Appellant from the
moment he left her running
towards the group of people until he met up with the Complainant, she
must have seen the Complainant
lying on the ground as the Appellant
and the Complainant testified;
8.2
She said that she cannot say whether the group of people were
fighting or not. In contrast, the Appellant testified that he
ran in
the direction of the group of people because they were fighting;
8.3
She denies the Appellant’s version that she told the Appellant
to go and see what was happening whilst the Complainant
was being
assaulted; whereas the Appellant testified that his girlfriend
prompted him to go and see what was happening. If she
was the one who
prompted the Appellant to go and intervene, there was nothing
preventing the defence witness from seeing the Complainant
on the
ground. Her own evidence was that there was nothing obscuring her
view at the distance of four to five metres and that she
arrived
simultaneously with the Appellant at the scene of the crime;
8.4
She further testified that she never saw any injuries or blood on the
Complainant, whereas the Appellant testified that the
Complainant was
bleeding and it was clearly visible.
[9]
In my view the Appellant’s witness was never at the scene of
the crime. Her evidence about what she observed cannot be
accepted.
It is highly unlikely that she could not see what was happening at
that short distance but conveniently heard the same
thing as the
Appellant when the Complainant blamed him for the robbery and
threatened to report him to the Police. Against this
the evidence of
the Complainant must be weighed up. It is unlikely that the
Complainant was assaulted severely and even lost consciousness
if it
was not true. These contradictions are indicative of the fact that
the defence witness was not at the scene. It is further
unlikely that
the Complainant would accuse the Appellant under circumstances where
he would have welcomed any help to assist him.
[10]
The Court a quo properly evaluated the evidence given at the trial.
The most important factor is that the Appellant places
himself at the
scene of the robbery. The Complainant identified the Appellant as
being present and one of his attackers. The only
question is whether
there was a motive for the Complainant to falsely implicate the
Appellant if he (the Appellant) he came to
his assistance. The Court
a quo correctly, in my view, found the Appellant’s version to
be improbable and that it does not
make sense at all. The Appellant
did not make a good impression on the Court a quo. The Appellant
initially testified that the
Complainant falsely implicated him
because the community once caught the Complainant breaking into a car
and assaulted him in the
presence of the Appellant. The Appellant
then changed his version and testified that the reason that the
Complainant is falsely
implicating him is that he once fought about a
car which the
Complainant
borrowed from him. When cross-examined about this, the Appellant
conceded that the incident happened a long time in
the past and was
water under the bridge. Since that incident they even started
greeting each other. The Court found that the Appellant
kept on
changing his version and tried to adjust his evidence to suit his
version. In contrast therewith, the Court found the Complainant
to be
a reliable and honest witness. He did not try to hide the fact that
he was drinking before the incident. He testified that
he was still
sober enough to make a proper identification of what happened during
the robbery. He identified the Appellant as one
of his robbers. The
Appellant confirms on his own version that he was present at the
scene of the robbery. The Appellant’s
girlfriend contradicts
his version. Applying the provisions of Section 208 of the Criminal
Procedure Act, Act 51 of 1977, the Court
a quo correctly, in my view,
found that the evidence of the Complainant, being a single witness,
was credible and reliable and
accordingly found the Appellant guilty
as charged.
[11]
The conviction on Count 2
The
conviction on this charge is based on the evidence of a single
witness, Ernest Monare. The Complainant testified that he knew
the
Appellant by sight, as he used to see him around Block G, Soshanguve,
and also around the tavern in Block G. On the 8th October
2011,
around 22h30, the Complainant was walking from Block F after
consuming liquor at the tavern. When he crossed the road from
Block F
to Block G, he was approached by three people from the direction of
Majembeni Tavern. The three males then asked him for
a match. While
the Complainant was still talking to them, two other people arrived
and made the number five. One person then choked
the Complainant from
behind in a vice grip position. The Complainant alleged that he saw
the Appellant and that they then started
assaulting him with a hard
object, like an iron rod, on his face until he became unconscious. He
testified that the Appellant hit
him with fists and one of his
accomplices
hit him with the iron rod on the left eye. As a result of the injury
to his eye the Complainant cannot see properly.
After regaining
consciousness around midnight, he found himself to be naked. His
tracksuit and t-shirt were gone and he was only
dressed in his
underpants and socks. His Samsung cellphone, R44,00 (Forty Four Rand)
in cash and his tracksuit were missing. The
Complainant further
testified that it was dark but not very dark, as he could still
identify the Appellant. The Appellant also
testified in his defence.
He denied the allegations made by the Complainant.
[12]
The identification of the Appellant on this Count is doubtful.
According to the Complainant’s version he only saw the
Appellant for a second or more. It is trite law that the evidence of
a single witness should be clear and satisfactory in all material
aspects. Having regard to the fact that the robbery took place when
it was fairly dark, it was at night, and that there were five
assailants present of which only one is identified, a Court must be
very careful before making a finding that an accused’s
identity
has been proven beyond a reasonable doubt. It is common cause that
the Complainant conceded that he consumed six bottles
of 750
millilitres beer between 17h00 and 22h00 on that day. According to
the Complainant, he was choked from behind. He only recognised
the
Appellant after he was choked.
[13]
In view of the standard of proof, the Court does not have to be
convinced that every detail of the accused’s version
is true.
If the accused’s version is reasonably possibly true in
substance, the Court has to decide the matter on the acceptance
of
that version. The accused’s version can only be rejected on the
basis of inherent improbabilities, not because it was
merely
improbable but because it was so improbable that it could not
reasonably possibly be true. See in this regard S v Shackell,
2001(4)
SA 1 (SCA). The Appellant’s defence is based on the denial of
his presence at the scene of the crime. The legal position
with
regard to an alibi is that there is no onus on an accused to
establish it, and if it might be reasonably possibly true, he
must be
acquitted. See in this regard S v Hlongwane, 1995(3) SA 337 (A). The
Appellant gave an explanation that he was at home
with his girlfriend
watching television. In my view, the Court had no reason to reject
the Appellant’s version. I am also
not convinced that the
Complainant properly identified the Appellant as one of his
assailants. Because of the fallibility of the
human observation,
evidence of identification is approached by the Courts with some
caution. It is not enough for the identifying
witness to be honest;
the reliability of his observation must also be tested. This depends
on the various factors such as lighting,
proximity of the witness,
opportunity of observation, extent of prior knowledge of the accused,
corroboration, etc. See S v Mthethwa,
1972(3) SA 766 (AD). I have
serious doubts whether it can be said that seeing a man for a second
or two constitutes a proper identification
at all.
[1]
In my view the conviction on the second Count cannot be confirmed and
should be set aside.
[2]
I now turn to the question of sentence. It is not necessary to deal
with the sentence imposed on Count 2. I have already said
that the
conviction on Count 2 cannot be confirmed. It follows that the
sentence imposed on Count 2 must be set aside. I will deal
therefore
with the sentence imposed on Count 1 only. When the appeal was noted,
the thrust of the appeal against sentence was that
the Court a quo
erred in sentencing the Appellant to 30 (thirty) years imprisonment
without taking the cumulative effect into consideration.
That ground
of appeal has now fallen away. In the alternative it is submitted
that the Trial Court overemphasised the seriousness
of the offence
which the Appellant committed and the interest of society whilst the
personal circumstances were underemphasised.
It is also contended
that by imposing a lengthy period of 15 (fifteen) years imprisonment,
the Court a quo erred as the sentence
is shockingly harsh and induces
a sense of shock. It is further contended that the Court a quo failed
to properly investigate the
Appellant’s background in regard to
his previous convictions, his level of education, and the fact that
he grew up in an
abusive relationship. It is also contended that the
Learned Magistrate did not take into account the time period that the
Appellant
had spent in custody awaiting trial.
[16]
It is trite law that a lesser sentence than the minimum sentence of
15 (fifteen) years imposed by the Magistrate can only be
imposed if
there were substantial and compelling circumstances, justifying a
deviation from the prescribed minimum sentence.
[17]
In my view, the Trial Court took all the relevant factors into
consideration when imposing an appropriate sentence. The sentence
imposed commensurate with the gravity of the offence and does not
induce a sense of shock and is not shockingly harsh for the following
reasons:
17.1
The Appellant has been convicted of a very serious offence as set out
in the charge sheet. The Act on minimum sentences is
applicable to
this conviction;
17.2
The offence the Appellant was convicted of is prevalent in the
Republic of South Africa;
17.3
The Appellant left his victim unconscious;
17.4The
Appellant did not show any remorse;
17.5
The Appellant has a previous conviction;
17.6
The offence was pre-planned, executed at night, and substantial force
was used;
17.7
The Complainant sustained serious injuries i.e. he lost his teeth and
he was throttled to such an extent that he became unconscious.
[18]
Against these aggravating circumstances, the following mitigating
factors were recorded:
18.1
The Appellant was 33 years old;
18.2
The Appellant is not married;
18.3
He has a minor child aged 13 years old;
18.4
He is presently unemployed;
18.5
He is staying with his mother;
18.6
His parents were divorced in 2000;
18.7
The Appellant grew up in an abusive relationship at home;
18.8
He is a member of the ZCC church;
18.9
He went to school up to grade 4; and
18.10
He was in custody awaiting trial for 15 months.
[19]
In my view none of these personal circumstances recorded constitute
substantial and compelling circumstances as required by
the Act. No
evidence was lead to show that the abusive relationship in his
parental home was the cause of his criminal behaviour.
It can also
not be found on the facts that his low level of education contributed
to his disregard for law and order. The Magistrate
duly considered
these factors and duly concluded that no compelling and substantial
circumstances were proven, entitling him to
impose a lesser sentence.
I agree with the conclusion arrived at by the Magistrate.
[20] The only substance in the appeal
against sentence is the question whether the Magistrate should have
taken the time period
that the Appellant has spent in custody
awaiting trial, in consideration. See in this regard S v Vilakazi,
2009(1) SACR 552 (SCA)
and S v Kruger, 2012(1) SACR 369 (SCA). In
contrast thereto, the decision of Radebe v
S,
(726/12) (2013) SA (SCA) 31 (27 March 2013) at p6, paragraph 13-14,
must be considered. In that case it was held:
“
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 awaiting
trial... The circumstances of an individual accused must be assessed
in each case in determining the extent to which the sentence
proposed
should be reduced”.
If
I understand this decision correctly the extent to which the sentence
should be reduced, having regard to the period in detention,
is only
but one of the factors that should be taken into account in
determining whether the effective period of imprisonment imposed
is
justified. The test is not whether on its own that period of
detention constitutes a substantial and compelling circumstance,
but
whether the effective sentence proposed is proportionate to the crime
or crimes committed, in other words, whether the sentence
in all the
circumstances, including the period spent in detention prior to the
conviction and sentencing, is a just one.
[19]
In my view, a sentence of fifteen years imprisonment imposed as in
the present case cannot be said to be unjust. It cannot
be said that
the Magistrate misdirected himself when he applied his discretion and
decided to impose the minimum sentence. In my
view, therefore, the
appeal against sentence on Count 1 must be dismissed.
I
THEREFORE MAKE THE FOLLOWING ORDER:
1.
The appeal against the conviction on Count 1 is dismissed;
2
The appeal against the conviction on Count 2 is upheld and the
conviction and sentence on Count 2 are set aside.
3.
The appeal against sentence imposed on Count 1 is dismissed and the
sentence of fifteen years imprisonment is confirmed.
I
agree.
CAMBANIS
AJ
ACTING
JUDGE OF THE NORTH AND SOUTH GAUTENG HIGH COURT
It
is so ordered.
DE
VOS J
JUDGE
OF THE NORTH AND SOUTH GAUTENG HIGH COURT