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[2012] ZAFSHC 197
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Nkala v S (A161/2012) [2012] ZAFSHC 197 (25 October 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A161/2012
In the appeal between:-
TSHEPO GEORGE NKALA
and
THE STATE
_________________________________________________________
CORAM:
EBRAHIM, J
et
MATLAPENG, AJ
_________________________________________________________
JUDGMENT BY
:
MATLAPENG, AJ
_________________________________________________________
HEARD ON:
8
OCTOBER 2012
_________________________________________________________
DELIVERED ON
:
25 OCTOBER 2012
_________________________________________________________
[1] The appellant was
charged with two counts of robbery with aggravating circumstances in
the Regional Court at Viljoenskroon.
At the conclusion of the trial,
he was found guilty as charged and sentenced to two terms of twelve
years imprisonment in respect
of the two counts. It was however
ordered that the two sentences should run concurrently. The
appellant, with leave of the trial
court, appeals against his
sentence only.
[2] The facts that led to
the conviction of the appellant are briefly as follows: Appellant in
concert with seven other people robbed
the two complainants of two
cellular phones and cash. The evidence was that whilst four people
kept watch outside the shop, the
appellant and three others entered
the shop. One of the assailants had a firearm and the appellant and
others had knives.
[3] During the robbery,
the appellant injured one of the complainants. The injuries are
according to the J88, described as 1,5cm
scratch marks on both the
head and the forehead respectively.
[4] Sentencing is
described as being pre-eminently within the discretion of the trial
court and a court on appeal may only interfere
where it is shown that
the trial court failed to properly exercise its discretion. This is
limited to those instances where there
is an irregularity or a
misdirection or where there is a striking disparity between the
sentence imposed by the trial court and
the one the appeal court
would have imposed. This is explained as follows in the seminal case
of
S v MALGAS
2001 (1) SACR 469
(SCA) paragraph 12:
“
[12] The
mental process in which courts engage when considering questions of
sentence depends upon the task at hand. Subject of
course to any
limitations imposed by legislation or binding judicial precedent, a
trial court will consider the particular circumstances
of the case in
the light of the well-known triad of factors relevant to sentence and
impose what it considers to be a just and
appropriate sentence. A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court,
approach the question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because
it prefers it. To do so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial
court vitiates its exercise of
that discretion, an appellate court is of course entitled to consider
the question of sentence afresh.
In doing so, it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance.
As it is said, an appellate court is at
large. However, even in the absence of material misdirection, an
appellate court may yet
be justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence
of the trial court and the sentence which the appellate
court would have imposed had it been the trial court is so marked
that
it can properly be described as “shocking”,
“startling” or “disturbingly inappropriate”.
It
must be emphasised that in the latter situation the appellate
court is not at large in the sense in which it is at large in the
former. In the latter situation it may not substitute the sentence
which it thinks appropriate merely because it does not accord
with
the sentence imposed by the trial court or because it prefers it to
that sentence. It may do so only where the difference
is so
substantial that it attracts epithets of the kind I have mentioned.
No such limitation exists in the former situation.”
[5] It was submitted in
this court by both the appellant and the respondent that the sentence
imposed by the trial court induces
a sense of shock especially when
one takes into account the criteria laid down for sentencing which
has developed over the years
in our courts.
[6] It is trite that when
a court imposes as suitable sentence, it has to take into account the
nature of the crime, the interests
of the community and the personal
circumstances of the offender and lastly the element of mercy also
comes to the fore.
[7] In mitigation of
sentence the following personal circumstances of the appellant were
placed before the court namely he is 18-years
of age and was 17 years
when he committed the offence, he was not married and had no
dependants. He was still attending school
and doing standard 7 now
known as grade 9. He was a first offender. He had been in custody for
about seven months at the conclusion
of the trial.
[8] The offence with
which the appellant is convicted attracts a minimum sentence in terms
of
Criminal Law Amendment Act, No 105 of 1997
. The trial court
however, correctly found that the provisions of the Act are not
applicable to the appellant as a result it stood
free to impose
whatever sentence it saw fit.
[9] The trial court
although it recognised that the appellant was a youthful offender,
seems to have paid mere lip service to this
aspect when it considered
an appropriate punishment to impose on him. As a result, it sentenced
him to two terms of imprisonment
of twelve years each.
[10] There are good
policy reasons why youthful offenders are treated differently to
adult offenders. This is based amongst others
on their immaturity and
lack of judgment. Because of their immaturity they lack judgment and
are prone to irrational and reckless
behaviour. This was aptly put as
follows in
S v Z en Vier Ander Sake
1999 (1) SACR 427
(E) at 430f:
“
Besondere
omstandighede geld by die bestrawwing van jeugdige oortreders, juis
vanweë die feit van hul jonkheid. Die jeug is
kenlik van kosbare
waarde vir die gemeenskap - soos weerspieël word in art 28 van
die Grondwet. Hulle is ons toekoms. Verbandhoudend
hiermee is die
feit dat jeugdiges se persoonlikhede in die algemeen nog nie ten
volle ontwikkel is nie. Hulle is meer buigsaam
as volwassenes en dus
uiteraard meer vatbaar vir beïnvloeding, ten goede sowel as ten
kwade. Kriminele wangedraginge deur
'n jeugdige voorspel àl te
dikwels (maar nie noodwendig nie) 'n kriminele volwassenheid.
Jeugdiges wat misdrywe pleeg is
dus potensiële volwasse
misdadigers en is as sulks 'n bedreiging nie net vir die gemeenskap
nie, maar ook vir hul eie welsyn
en toekoms. Dit is derhalwe die dure
plig van elke persoon en instansie gemoeid met jeugdiges, ook dan die
howe, om te poog om
jeugdige oortreders vir die geledere van
wetsgehoorsames te win.”
[11] Youthful offenders
are more amenable to rehabilitation and a sentencing court has to
take this into account. In
S v NKOSI
2002 (1) SACR 135
(W) at 143b the following is said:
“
The fine
balance that needs to be struck between society's need to punish
crime while not overlooking the interests of a juvenile
offender was
emphasised by Botha JA in
S
v Jansen and Another
1975 (1) SA 425
(A) at 427
in
fine
- 428A in the following terms:
'The
interests of society cannot be served by disregarding the interests
of the juvenile, for a mistaken form of punishment might
easily
result in a person with a distorted personality being eventually
returned to society.'”
[12] Whilst the interest
of the society has to be taken into account when an appropriate
sentence is imposed, this should not be
at the expense of the
offender. In this matter, it is clear that the interest of the
community took a much more central role at
the expense of the
offender’s personal circumstances with the resultant loss of an
appropriate balance between them.
[13] In
S v FAZZIE
AND OTHERS
1964 (4) SA 673
(A) at 684B – C the
following is said:
“
Where,
however, the dictates of justice are such as clearly to make it
appear to this Court that the trial Court ought to have had
regard to
certain factors and that it failed to do so, or that it ought to have
assessed the value of these factors differently
from what it did,
then such action by the trial Court will be regarded as
a misdirection on its part entitling this Court
to consider the
sentence afresh.”
I am of the view that
failure by the trial court to accord due weight to the personal
circumstances of the appellant especially
his youthfulness which
stood out like a sore thumb screaming for attention has sadly led to
this shockingly inappropriate sentence.
This in my judgment
constitutes a misdirection as a result this court is entitled to
interfere in the sentence imposed by the trial
court.
[14] It cannot be
emphasised enough that the appellant has been convicted of a very
serious and violent offence. Regard can be taken
to the fact that our
country is in the grip of a violent crimes epidemic which more often
than not are committed by youthful offenders.
The robbery was
committed in a brazen manner and one of the complainants was injured
especially by the appellant. The goods that
were robbed were not
recovered.
[15] Taking into account
both mitigating and aggravating factors, I am of the view that an
appropriate sentence would be one of
imprisonment part of which
should be suspended.
ORDER
[16] In the circumstances
I make the following order:
1. The appeal against
sentence is upheld.
2. The sentence imposed
by the Magistrate is set aside and replaced with the following:
(a) On count (i) the
accused is sentenced to twelve years imprisonment, five years of
which is suspended for a period of five years
on condition that the
accused is not found guilty of robbery or theft committed during the
period of suspension.
(b) On count (ii) the
accused is sentenced to twelve years imprisonment, five years of
which is suspended for a period of five years
on condition that the
accused is not found guilty of robbery or theft committed during the
period of suspension.
(c) It is hereby ordered
that the sentence in count 1 shall run concurrently with the sentence
in count 2.
(d) The sentences are
antedated to 24 November 2011.
___________________
D. I. MATLAPENG, AJ
I concur.
__________________
S. EBRAHIM, J
On
behalf of appellant: Adv. T B van Rensburg
Instructed
by:
Jacques
Groenewald Attorneys
KROONSTAD
On
behalf of respondent: Adv. E Liebenberg
Instructed
by:
The Director:
Public Prosecutions
BLOEMFONTEIN
/eb