Summary of Judgment

1. Introduction

This was a criminal appeal to the High Court (North Gauteng High Court, Pretoria) against sentence only following a conviction in the Regional Magistrates’ Court, Heidelberg. The proceedings concerned the appropriate sentence for robbery with aggravating circumstances, in circumstances where the regional court imposed a lengthy term of direct imprisonment.

The appellants were Sipho Owen Tshongweni (first appellant) and Fikile Phile Mdakwende (second appellant). The respondent was the State. The appellants were legally represented at trial, pleaded not guilty, were convicted, and were sentenced to 15 years’ imprisonment.

After sentence, the appellants petitioned the High Court for leave to appeal. Leave was granted in respect of sentence only, and the appeal was heard on that limited basis. The general subject matter of the dispute on appeal was whether the regional magistrate correctly dealt with the minimum sentencing regime and whether substantial and compelling circumstances existed warranting a lesser sentence than the prescribed minimum.

2. Material Facts

The court proceeded from the factual context of the offence as it emerged from the trial record, noting that the appeal was limited to sentence and not conviction. The incident occurred on 20 March 2004 at a tavern that was also the complainant’s home, where the complainant and others were playing pool.

On the State’s version, the two appellants entered the premises, left, and later returned. The first appellant, who was known to the complainant, was alleged to have been in possession of a firearm, and the second appellant to have been in possession of a knife. The second appellant allegedly restrained the complainant by the neck while the first appellant pointed a firearm at him. The complainant was robbed of his identity document, driver’s licence, and cellular phone. The second appellant then allegedly took an iron bar, broke the pool table, and removed coins from the slot, said to amount to approximately R600 to R800 accumulated over about three weeks. A shot was fired outside as the appellants fled. The complainant was not injured during the robbery. The complainant’s version was said to have been corroborated by a second witness, identified as T.M.

The appellants’ trial version differed in material respects. They testified that they were at the tavern playing pool and drinking liquor; that the second appellant broke a pool cue; that they were told the tavern had closed after the cue was broken; that they left with beers; and that they ran upon seeing police because they feared arrest for drinking in public. This version was presented as relating to what occurred inside the tavern.

For purposes of sentence, the High Court highlighted personal circumstances reflected in the record as relevant to mitigation. The appellants were first offenders, unemployed and unmarried, and did part-time jobs. The second appellant had a minor child to support. The appellants had also spent six months in custody awaiting trial. The High Court further regarded it as relevant that the complainant was not physically harmed, notwithstanding the seriousness of the offence and the use of weapons.

3. Legal Issues

The central legal questions concerned the lawfulness and appropriateness of the sentencing process and outcome, rather than the correctness of the conviction. The court was required to determine whether the regional magistrate properly applied the Criminal Law Amendment Act 105 of 1997 minimum sentencing provisions, including whether the appellants had been given adequate notice of the State’s intention to rely on that regime.

Closely linked to that was whether the magistrate properly considered whether substantial and compelling circumstances existed. This involved an application of legal principles to the facts, and also a sentencing value judgment concerning the cumulative weight of mitigating and aggravating factors.

A further issue was whether, given the way sentence was dealt with, the appellants’ sentencing proceedings were substantially unfair, and whether the sentence imposed was shockingly inappropriate on the record as it stood.

4. Court’s Reasoning

The High Court focused on the operation of the minimum sentencing regime and the requirements of a fair sentencing process where the State seeks reliance on the Act. The court accepted that legal representatives often advise accused persons about sentencing consequences, but emphasised that this does not displace the presiding officer’s responsibility to ensure that an accused is aware of the implications of the minimum sentencing legislation in relation to the charge. The court considered that this responsibility should “permeate” the proceedings.

A key factual feature in the High Court’s evaluation was that the charge sheet made no reference to the minimum sentencing legislation. Although the magistrate forewarned the parties after conviction about the Act’s implications, neither the defence nor the prosecution addressed the court on whether substantial and compelling circumstances existed. The magistrate nevertheless made a finding that none existed, without substantiating that finding with reasons, and proceeded to impose sentence accordingly. On the High Court’s reading of the record, it did not appear that the appellants were properly advised of the consequences of the Act in a manner sufficient to secure fairness in sentencing.

The court relied on the approach articulated in S v Ndlovu (with reference to S v Legoa) that a fair trial will generally require that the State’s intention to rely on the minimum sentencing regime be pertinently brought to the accused at the outset, whether on the charge sheet or in another form that allows the accused to appreciate in good time both the charge and the potential sentencing consequences. On this reasoning, inadequate notice may undermine the accused’s ability to conduct a proper defence, including in relation to sentence.

The High Court also addressed the scarcity of information placed before the sentencing court relevant to mitigation. It held that where there is scant information from which to determine the presence or absence of substantial and compelling circumstances, it is incumbent upon the presiding officer to engage with the legal representatives, including whether the accused was advised about testifying in mitigation and the consequences of not doing so. The court considered that, given the potential for a long term of imprisonment, the sentencing court could have requested pre-sentencing reports to obtain background information and other factors relevant to sentence.

On that basis, the High Court concluded that the sentencing stage of the trial was substantially unfair and that the sentence was shockingly inappropriate, warranting interference on appeal. Turning to the appropriate sentence, the court stated that substantial and compelling circumstances are assessed by considering the cumulative effect of mitigating factors and other relevant considerations.

While acknowledging the seriousness of the offence and the use of a firearm and knife, the High Court held that the magistrate did not take into account that the complainant was not injured. It also noted circumstances suggesting the offence was committed against a complainant known to the appellants, in a context where they frequented the premises. The court took into account the appellants’ status as first offenders, their personal circumstances including the second appellant’s child, and the period spent in custody awaiting trial. In dealing with awaiting-trial detention, the court referred to S v Brophy and Another, which treated such time as particularly weighty because it is served without remission and without the benefits typically available to sentenced prisoners.

Having weighed these considerations cumulatively, the court held that substantial and compelling circumstances were present and that a materially lesser sentence than 15 years was justified. The court also considered that the circumstances warranted consideration of a partially suspended sentence, but ultimately substituted a sentence of seven years’ imprisonment and antedated it to the date of the original sentence.

5. Outcome and Relief

The appeal against sentence was upheld. The sentence of 15 years’ imprisonment imposed by the regional court was set aside and replaced with a sentence of seven years’ imprisonment, antedated to 1 September 2004.

The judgment did not record any separate or special order as to costs.

Cases Cited

S v Ndlovu 2003 (1) SACR 331 (SCA)

S v Legoa 2003 (1) SACR 13 (SCA)

S v Abrahams 2002 (1) SACR 116 (SCA)

S v Brophy and Another 2007 (2) SACR 56 (W)

Legislation Cited

Criminal Procedure Act 51 of 1977

Criminal Law Amendment Act 105 of 1997

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the sentencing proceedings were substantially unfair because the record did not show that the appellants were properly apprised, in a manner consistent with fairness, of the State’s reliance on the minimum sentencing regime, and because the magistrate found the absence of substantial and compelling circumstances without engaging with the parties or providing substantiated reasons.

The High Court held further that, on a cumulative assessment of relevant mitigating factors, substantial and compelling circumstances were present, including the appellants’ status as first offenders, personal circumstances, the absence of physical injury to the complainant, and the period spent in custody awaiting trial. The sentence was accordingly reduced and antedated.

LEGAL PRINCIPLES

A sentencing court applying the minimum sentencing regime under the Criminal Law Amendment Act 105 of 1997 must ensure that an accused has fair notice that the State intends to rely on that regime, ordinarily at the outset of the proceedings or in another timely manner that enables the accused to appreciate the sentencing consequences and conduct the defence properly.

The presiding officer bears an ongoing responsibility to ensure procedural fairness in sentencing, including ensuring that the parties address the question of substantial and compelling circumstances, and that any conclusion on that question is supported by reasons grounded in the material before the court.

Whether substantial and compelling circumstances exist requires a cumulative assessment of mitigating and other relevant factors; the enquiry is not confined to any single factor in isolation.

Time spent in custody as an awaiting-trial prisoner is a relevant mitigating consideration and may carry enhanced weight because it is served without remission and without access to certain benefits typically available to sentenced prisoners, as recognised in the authority cited by the court.

Where information relevant to sentence is scant and the likely sentence is severe, a sentencing court may require additional information, including by obtaining pre-sentencing reports, to ensure an informed and fair sentencing determination.