About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 43
|
|
Mshumpela v S (257/10) [2012] ZAFSHC 43 (22 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : 257/10
In the matter between:-
MVULA WONDERFUL
MSHUMPELA
…....................................
Appellant
and
THE STATE
….................................................................
First
Respondent
_______________________________________________________
CORAM:
MOCUMIE, J
et
CHESIWE, AJ
_______________________________________________________
HEARD ON:
13 FEBRUARY 2012
_______________________________________________________
JUDGMENT BY:
MOCUMIE J
et
CHESIWE AJ
_______________________________________________________
DELIVERED:
22 MARCH 2012
_______________________________________________________
[1] The appellant was
convicted in the Regional Court, Bloemfontein, on a charge of robbery
read with section 1 of the Criminal
Procedure Act 51 of 1977 (“the
CPA”) and was sentenced on 21 January 2009 to fifteen years
imprisonment in terms of
the
Criminal Law Amendment Act 105 of 1997
as amended (“the
Criminal Law Amendment Act.&rdquo
;). He sought
leave to appeal against both his conviction and sentence but leave
was granted by the court
a quo
against sentence only.
[2] The undisputed facts
in this matter are briefly that on 7 November 2003 the complainant
was driving in her car in Maitland Street,
city centre, Bloemfontein.
She was with her two young children aged five and two after dropping
off her domestic worker at the
taxi rank down town. She stopped at
the intersection at Maitland and Wes Burger streets as the robot was
red. Just as she was waiting
for the robot to turn green, a man, who
was later identified as the appellant, hit her passenger window and
grabbed her hand bag.
She held onto the bag until he threatened to
stab her by putting his hand inside his pocket as if taking out a
weapon. She let
go of the handbag and the appellant ran away with it.
The handbag contained valuable items: her identity document; Absa
bank cards;
Virgin Active membership card; a Casio calculator and
lipstick all valued at R640, 00 thereby robbing her of her property.
[3] One of the good
Samaritans who witnessed this whole incident followed the appellant
as he went to the vegetable vendors in the
city centre. He called the
police from his cell phone and waited for them not far from where the
appellant was standing making
as if he was busy at the vegetable
stalls in town. The police arrived and he pointed the appellant out
to them and they confronted
him. They found the appellant holding a
white plastic bag and in it they found a handbag which was later
identified as the complainant’s.
They arrested him and took him
to the police station. At the police station when he was searched the
police found the complainant’s
purse in his underpants. The
appellant was later positively identified at an identity parade by
the same state witness that pointed
him out to the police on the day
of the incident. During the trial the appellant was represented by
three different legal representatives.
All attorneys eventually
withdrew and the appellant conducted his own defence.
[4] Advocate Tshabalala,
on behalf of the appellant, in his Heads of Argument and oral
argument submitted that fifteen years imprisonment
is shockingly
inappropriate as the minimum sentence is reserved for the most
serious of cases. That this case was not the most
serious in nature
as no firearm was used and the complaint did not sustain any physical
injuries.
[5] He submitted that the
personal circumstances of the appellant cumulatively amounted to
compelling and substantial circumstances
which justified the court
a
quo
to have deviated from the prescribed sentence. He highlighted
the following:
Appellant is a young man
at the relatively youthful age of 24 years.
He works as a vendor and
has one child.
He is HIV positive.
[6] Advocate Ferreira, on
behalf of the State, conceded that the factors set out by the
appellant were indeed compelling and substantial
circumstances which
justified the trial court to have deviated from the prescribed
fifteen years. She however submitted that the
aggravating factors in
this case far outweighed the mitigatory factors to the extent that
the appellant should be given a lengthy
period of direct
imprisonment. She highlighted the following aggravating factors:
6.1 The appellant was not
a first offender. He had a previous conviction of theft which is
similar to robbery committed during 2003
for which he was given a
fine coupled with direct imprisonment;
6.2 The complainant and
her two young children aged five and two were traumatized by this
incident;
6.3 The complainant’s
car was damaged and she had to replace the window at her own costs;
6.4 Although the goods
were retrieved it was through a member of the society’s sheer
guts and not the appellant’s co-operation.
[7] Both counsel were
ad
idem
that the fifteen years imprisonment was severe in the
circumstances of this case. We agree with them.
[8]
Section 1
of the CPA provides:
“
(
1)
In this Act [The
Criminal Procedure Act 51 of 1977
], unless the
context otherwise indicates-
‘
aggravating
circumstances’,
in relation to
(a) …
(b) robbery, or attempted
robbery, means –
(i) the wielding of a
firearm or any other dangerous weapon’
(ii) the infliction of
grievous bodily harm,
(iii)
a threat to
inflict grievous bodily harm,
by the
offender or an accomplice on the occasion when the offence is
committed, whether before or during or after the commission
of the
offence...”
(Own emphasis)
[9]
Although in our view the appellant’s actions fall squarely
within the ambit of
s1
of the CPA
1
and
covered by the
Criminal Law Amendment Act the
facts of this case
however, depict more of a typical snatch and grab incident instead of
the so-called
“
armed
robbery”
or
robbery with a firearm or any other dangerous weapon which the
legislature had in mind and provided for specifically. Although
this
case is a serious one but, in our view, the dominant intent was
clearly to steal and not to rob. It is the complainant’s
vigilance that made the appellant, cowardly so, to resort to threats.
It is only right that the differences in seriousness should
receive
recognition when it comes to meting out of punishment. (Compare with
the
dictum
in
Rammoko
v Director of Public Prosecutions
2003(1)
SACR 200 at 205b-c
albeit
it in
the context of rape.)
[10] In
S v Rabie
1975 (4) SA 855
(A) at 857 D-F the Appeal court stated:
“
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.”
From
this
dictum
of
over 37 years and recent decisions of the Supreme Court of Appeal
2
it is
now trite that an appeal court can only interfere with a sentence of
a trial court in a case where the sentence imposed was
disturbingly
inappropriate.
[11]
When imposing a sentence a sentencing court must consider the basic
Zinn
triad
as
propounded in
S
v Zinn
3
:
the accused person’s personal circumstances, the nature and
gravity of the offence and the interests of the community. These
factors must be balanced against each other. In order to reach an
appropriate sentence, the court should not place too much emphasis
on
one factor and ignore the others. In addition, the court must bear in
mind the objectives of sentencing which are prevention,
retribution,
rehabilitation and deterrence. Not only retribution and deterrence.
[12] Rehabilitation as an
objective of sentencing is aimed at rehabilitating and reforming an
accused person to make him or her
a valuable citizen. The fact that
the appellant has a previous conviction(s) does not mean he cannot be
rehabilitated if given
an opportunity to do so. It may be that the
appellant has not been given such opportunity to rehabilitate as the
previous convictions
show that he was never given correctional
supervision in terms of
section 276(1)
(h) or
section 276(1)
(i) as
provided for in the CPA when he was still young in order to mend his
ways at that tender age. A fine which he evidently
could not afford
nor could anyone raise it on his behalf as he has no parents coupled
with imprisonment or direct imprisonment
has always been the norm in
his case.
[13]
Appellant was 23 years when he committed the offence. He has one
previous conviction similar to this offence he has been convicted
of
i.e. theft committed during 2003. The other previous convictions
older than ten years must be ignored and not taken into account
upon
imposition of sentence as is provided in the CPA.
4
He is
not married and has one child. He worked as a vendor. He is HIV
positive. At the time of the imposition of sentence in January
2009
he had been in custody for at least eight months. It is now trite
that the court imposing sentence should take that period
into account
when imposing any custodial sentence.
5
The
complainant retrieved all her property.
[14] In our view, the
trial court in this case clearly underplayed the appellant’s
personal circumstances and lamentably overplayed
the gravity of the
crime. Critically it blatantly disregarded the appellant’s
moral blameworthiness which plays an important
role which a
sentencing court ought to take into account. The overemphasis of the
magnitude of the crime or the underestimation
of the person of the
appellant constitutes an appealable misdirection .The sentence
imposed offends against our sense of justice
which justifies
interference by this Court.
[15] We are of the view
that an appropriate sentence for the appellant is a term of eight
years. This will strike a proper balance
and restore justice in a
sentence which was excessive and inappropriate in the circumstances.
[16] Lastly, although not
canvassed in the Heads of Arguments by both Counsel but it was raised
by this Court: this is one case
where the trial court should have
sought a presentence report. The appellant has been in conflict with
the law since 1999 when
he was only seven years of age. He was a
difficult person to assist during the trial after he fired three
capable attorneys of
the Justice Centre he was provided with. He
refused to follow the court procedures even when same were explained
to him at every
stage of the trial. As a result he ended up without
putting enough facts before the trial court or even pleading for
mercy in a
proper manner or at least showing remorse for what he has
done.
[17] In the circumstances
the following order is made:
1. The appeal against
sentence succeeds.
2. The sentence
imposed is set aside, and substituted with the following:-
1. 8 (eight) years
imprisonment.
2. In terms of
sec 282
of
Criminal Procedure Act 51 of 1977
the sentence is predated to 21
January 2009.
_______________
B.C. MOCUMIE, J
______________
S. CHESIWE, AJ
On behalf of appellant:
Adv. L.M. Tshabalala
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. A. Ferreira
Instructed by:
Office of the Director:
Public Prosecutions
BLOEMFONTEIN
SC/BCM/sp
1
(Du
Toit et al, Commentary on the
Criminal Procedure Act
,
Definitions, DEF 2.)
2
S
v Salzwedel and Others
1999 (2) SACR
586
SCA at 588 a-b.
3
1969
(2) SA 537
(A)
4
Section
271A
of the
Criminal Procedure Act 51 of 1977
provides :
“
Where
a court has convicted a person of :
…
(not
relevant)
Any
offence in respect of which a sentence of imprisonment for a period
not exceeding six months without an option of a fine
,may be
imposed,
That conviction shall
fall away as a previous conviction if a period of 10 years has
elapsed after the date of conviction of the
said offence…”
5
S
v Vilakazi
2009 (1) SACR 552
(SCA) at
574 para [60].