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[2011] ZAFSHC 48
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Mothibi v S (A246/2010) [2011] ZAFSHC 48 (10 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A246/2010
In the appeal between:-
THABO ANDRIES
MOTHIBI
….................................................
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MOCUMIE,
J
et
JORDAAN,
J
_____________________________________________________
HEARD
ON:
7 MARCH 2011
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
10 MARCH 2011
_____________________________________________________
[1] The appellant,
accused number 3 in the Court
a quo
, was sentenced to an
effective term of 40 years imprisonment. On 23 September 1999 Lombard
J imposed a sentence of 25 and another
of 15 years imprisonment on
the appellant in connection with the charges of murder and robbery
with aggravating circumstances respectively.
The appellant
unsuccessfully applied to the court
a quo
on the same day for
leave to appeal against the conviction.
[2] He now comes on
appeal against sentence with the leave to appeal granted per H.M.
Musi JP on 19 March 2010. This was so because
Lombard J has since
retired.
[3] The chief ground of
the appeal was that the effective sentence of 40 years imprisonment
was inappropriate regard been had to
the appellant’s personal
circumstances and the mitigating factors in the case.
[4] The respondent
conceded the merits of the appellant’s appeal. Therefore the
sentence imposed on the appellant was not
supported.
[5] The ordained
prescribed minimum sentence in terms of section 51
Criminal Law
Amendment Act, No. 105 of 1997
, for murder, where the offence was
committed by a person or a group or a syndicate acting in the
execution or furtherance of a
common purpose or conspiracy, is life
imprisonment (
vide
part 1
, schedule 2). In the instant case
robbery was the common purpose of the criminal enterprise we are here
dealing with as was evidenced
by the conviction of the appellant and
his group in connection with the second charge.
[6] The prescribed
minimum sentence in terms of
section 51
,
supra
, read with
part
2
, schedule 2 for robbery with aggravating circumstances or for
robbery involving the taking of a motor vehicle, is 15 years
imprisonment
in the case of a first offender.
In casu
, the
victim was robbed of a number of valuable items. Amongst such stolen
goods was a Mazda, a sedan with registration number GBB183FS
with an
estimated value of R35 000,00.
[7] In sentencing the
appellant the court
a quo
found that there were substantial
and compelling circumstances to justify the imposition of a sentence
which was less than the
prescribed minimum sentence in respect of the
murder, but not the robbery. On appeal before us it was not contended
that those
findings were wrong. The only critique which the appellant
levelled against the first sentence was that it was rather stiff or
excessive. Since no serious attack was launched on any of the two
individual sentences imposed, I can see no sound reason to warrant
our interference with any of them on appeal.
[8] Mr. Nkhahle, counsel
for the appellant, and Mr. Pretorius, counsel for the respondent,
were agreed that the effective sentence
of 40 years imprisonment was
too severe a punishment for the appellant in the circumstances of
this particular case. In my view
the concession by the respondent was
correctly made. In the light of the respondent’s concession
that the effective sentence
was indeed excessively severe, the issue
before us becomes a narrow one.
[9] The question in the
appeal is not whether the court
a quo
erred by not directing
that a portion of the second sentence should run concurrently with
the first. Differently put, the critical
question is not whether the
consecutive running of the two sentences effectively resulted in the
punishment which was unduly harsh,
ostensibly inappropriate and
disturbingly disproportionate to the circumstances. That much the
respondent has conceded. It is precisely
that concession which
narrows the issue in the case.
[10] The real issue in
the appeal which falls to be determined, is to what extent does the
effective sentence imposed on the appellant
exceed the reasonable
benchmark of appropriateness. Mr. Nkhahle contended that the court
a
quo
overstepped the mark by 13 years at least, whereas Mr.
Pretorius contended that it did so by 10 years at most. On the one
hand
Mr. Nkhahle accordingly urged us to reduce the effective
sentence down to 27 years imprisonment. On the other hand Mr.
Pretorius
urged us to re-adjust the effective sentence downwards to
30 years imprisonment. Therefore, it will be readily appreciated that
the two gentlemen were three years apart.
[11] The sentencing of an
offender is primarily the discretionary business of a court of first
instance. Because the determination
of a proper sentence for an
accused person falls primarily within the discretion of a trial
judge, we, sitting as we are in an
appellate mode, cannot interfere
with the exercise of such a discretion, merely because we would have
exercised that discretion
differently if we had been seized with the
matter as the court of first instance. That is the basic principle of
appeals.
[12]
However, a court with appellate jurisdiction is entitled to interfere
with a sentence imposed by the trial court in a case
where the
sentence is disturbingly inappropriate or is totally out of
proportion to the gravity of the offence or is vitiated by
misdirection of a nature which shows that the trial court did not
exercise its discretion reasonably or properly.
S v
SALZWEDEL AND OTHERS
1999 (2) SACR 586
(SCA) at 591 par.
[10];
S v PILLAY
1977 (4) SA 531
(AD) at 535 D –
G.
[13]
In sentencing the appellant, the court
a
quo
took into account the following
aggravating factors: that the entire episode was a criminal
enterprise orchestrated by a criminal
gang of which the appellant was
an active member; that the defenceless victim was surprised and
attacked by the criminal gang;
that the appellant, like his fellow
gangsters, was armed with a lethal weapon
viz
a firearm; that the harmless victim
hardly offered any resistance, yet he was cold-bloodedly executed by
dangerous bandits; that
the incident internationally damaged the
image of the RSA; that violent crimes in particular and levels of
lawlessness in general
were on the increase in the country and that
the appellant willingly allowed his firearm and motor vehicle to be
unlawfully used
in the furtherance of a common criminal objective. I
may add that the victim was a doctor from Cuba and that his car was
never
recovered. Instead it was subsequently set alight by his
killers.
[14]
The court
a quo
also
took into account the following mitigating factors in sentencing the
appellant: that he was a first offender and that he was
incarcerated
for 14 months before he was sentenced. As regards the appellant’s
age the court
a quo
made
a general comment that the ages of the accused, and there were five
of them, ranged from between 47 and 21.
[15] It is trite that the
person of the convicted offender always becomes the focal point of
the sentencing phase of a criminal
trial. In a case where two or more
accused have been convicted, as in this case, it is incumbent upon a
trial judge to have each
and every accused adequately profiled. It is
of vital importance for the trial judge to have a full conspectus of
the offenders’
personal circumstances during the course of the
presentation of a plea in mitigation. Sentencing is an
individualistic exercise.
Unless an offender is sufficiently
individualised, (s)he cannot be properly sentenced.
[16]
In this instant case the personal circumstances of the appellant were
clearly not properly investigated, canvassed and assessed.
Precisely
how old he was at the time he and his gang committed the offences,
did not appear
ex facie
the
sentence component of the judgment. As a result of the way the court
a quo
fleetingly
dealt with his personal circumstances, we are unable to say what his
correct age was at the relevant times. Was he the
47 year oldest
member of the gang or the 21 year youngest member of the gang? Must
we guess that he was somewhere in the middle
(34 years of age) or
somewhere between 34 and 47 years of age or somewhere between 34 and
21 years of age? All these questions
compound the problem.
[17]
Obviously we cannot speculate about such an important factor, which
can be a strongly mitigating factor at times. Although
we are
uncertain about his correct age, it was not contended on behalf of
the appellant that he became involved; that he allowed
his motor
vehicle to be used in tailing the victims, and that he allowed his
firearm to be used as a murder weapon as a result
of intellectual
immaturity emanating from his youthful age -
S v
MATYITYI
2011 (1) SACR 40
(SCA) on 47 par. [14].
[18]
Moreover the court
a quo
overlooked the fact that each of the two crimes
was a genus of a single criminal transaction. Both of them were very
closely linked
in terms of time and place. The scene of the crime was
the same and there was no significant lapse of time between the
commission
of the first and the second crimes. In such circumstances
it is usual to direct that the shorter sentence should wholly or
partially
run concurrently with the longer.
[19]
The court
a quo
underplayed
the appellant’s personal circumstances and lamentably
overplayed the gravity of the crime. This was evidenced
by the
following remarks:
“
Hierdie Hof
is van oordeel dat ‘n
baie
lang periode
van gevangenisstraf hierin vir al die beskuldigdes aangewese is en is
verder van oordeel dat die beskuldigdes gelyke behandeling
by
vonnisoplegging moet ontvang
ongeag
die ouderdoms en/of ander verskille met betrekking tot vorige
veroordelings en so meer wat daar mag bestaan. Dit kan net
volledigheidshalwe
genotuleer word dat daar geen betoë tot die
teendeel was nie.”
[
20]
Since the personal circumstances of the appellants and his co-accused
were glossed over, it becomes difficult to determine whether
painting
all of them with the same brush, as the court
a
quo
did, was justified or not.
Moreover, where an offender is not adequately profiled so as to
individualise him, the balancing act
between the mitigating and
aggravating factors cannot be done in a fair, just and equitable
manner. The practical danger of such
deficient profiling is that it
may have an adverse impact on the complex judicial process of
determining whether substantial and
compelling circumstances exist or
not.
[21]
The overemphasis of the magnitude of the crime or the underestimation
of the person of the appellant constitutes an appealable
misdirection
which justifies appellate interference –
S v ZINN
1969 (2) SA 537
(A) at 540 F - G.
I would
therefore set the cumulative sentence aside. It is my considered view
that the court
a quo
overstressed
the retributive objective of sentencing. I am of the firm view that
the retributive purpose of sentencing would still
have been attained
if it were directed that a specified portion of the shorter sentence
run concurrently with the longer.
[22]
Mr. Nkhahle further contended that the court
a
quo
did not attach sufficient weight to
the period of the appellant’s pre-sentencing incarceration. It
has been held that it would
be most unjust if such a period was not
brought into account in any custodial sentence that is imposed on an
accused -
S v VILAKAZI
2009 (1) SACR 552
(SCA)
on 574 par. [60]
. The submission is not without
substance. If double that period is taken into account, it may be
persuasively argued that the effective
sentence imposed on the
appellant, was well over 41 years imprisonment.
[23]
In
S v MASEOLA
2010 (2) SACR 311
(SCA)
the
accused had been convicted on two counts of murder, among others. The
murder victims were police officers. The trial court imposed
an
effective sentence of 43 years imprisonment. The SCA intervened and
reduced the sentence on the grounds that the cumulative
sentence was
excessively long and disproportionate. The sentence was reduced from
43 to 30 years imprisonment.
[24]
In this case I am persuaded that the court
a
quo
erred by failing to properly or
adequately individualise the appellant, thus underemphasising his
personal circumstances; by overemphasising
the magnitude of the
crime; by disregarding factors, which should have been taken into
account and by ultimately imposing very
long and, worse still,
completely consecutive sentences on the appellant. The misdirection
was so material that it vitiated the
sentencing discretion entrusted
to the trial judge. We are therefore entitled to interfere with such
injudicious exercise of the
discretion. In my view a reduction of the
effective sentence by at least 13 years would strike a proper balance
and restore justice
in a sentence which was unduly harsh, ostensibly
disproportionate and excessively severe – and thus
inappropriate in the
circumstances.
[25]
It is well to remind oneself that the object of sentencing is to
serve public interest and not to satisfy public opinion -
S
v MHLAKAZA AND ANOTHER
1997 (1) SACR 515
(SCA) at 518 e per
Harms JA.
[26] Accordingly I make
the following order:
26.1 The appeal against
sentence succeeds.
26.2 The two individual
sentences are confirmed, but the effective sentence is declared
inappropriate and it is accordingly set
aside.
26.3 It is directed that
the thirteen years of the shorter sentence (fifteen years
imprisonment) should run concurrently with the
longer sentence
(twenty five years imprisonment). The excessive effective sentence of
forty years imprisonment is thus substituted
with an effective
sentence of twenty seven years imprisonment.
26.4 The aforesaid twenty
seven years imprisonment shall be deemed to have been imposed on 23
September 1999 being the date on which
the sentence was originally
imposed on the appellant.
______________
M.H. RAMPAI, J
I
concur.
_______________
B.C. MOCUMIE, J
I
concur.
_______________
A.F. JORDAAN, J
On
behalf of appellant: Adv. R.J. Nkhahle
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. Danie J. Pretorius
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp