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[2008] ZAFSHC 126
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S v Nkomo (A129/08) [2008] ZAFSHC 126 (6 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : A129/08
In
the appeal between:
MAKHOSI
NKOMO
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
VAN
ZYL, J
et
MOLOI,
AJ
_____________________________________________________
JUDGMENT
BY:
MOLOI,
AJ
_____________________________________________________
HEARD
ON:
27
OCTOBER 2008
_____________________________________________________
DELIVERED
ON:
6
NOVEMBER 2008
_____________________________________________________
[1] The
appellant was convicted in the Regional Court at Kroonstad on five
counts of robbery with aggravating circumstances read
with the
provisions of
section 51(2)
of the
Criminal Law Amendment Act, No.
105 of 1997
. He was sentenced to the prescribed minimum sentence of
fifteen (15) years imprisonment in respect of count 1 and to two (2)
years
imprisonment on each of counts 2 to 5. In respect of count 1
the trial court found that there were no substantial and compelling
circumstances justifying a lesser sentence than the prescribed
minimum sentence whereas in respect of the other counts such
circumstances
were found to be present.
[2] The appeal served
before us as regards the sentence alone after leave was granted on
petition by this court, the trial court
having refused the same.
[3] The
circumstances of the case are that on 16 January 2005 the appellant
and three others, all armed with fire-arms, attacked
the Manny’s
Supermarket at Kroonheuwel in Kroonstad. The manager was held at
gunpoint by the appellant and robbed of cash,
cellular telephone,
cellular telephone cards, a wrist watch, cigarettes and a necklace.
The other three attackers held at gunpoint
three employees of the
supermarket and a client who happened to be in the supermarket at the
time and robbed them of various items
such as cellular telephones,
cash amounts, golden ring and a necklace. The four attackers left
the scene in the vehicle belonging
to the appellant. The appellant
was later arrested basically through the identification of the
vehicle. When the appellant accompanied
the police to point out his
co-attackers, a shootout ensued and two attackers escaped and one was
killed in the fire exchange.
[4] According
to the evidence the appellant, on entering the supermarket, together
with one of his co-attackers, focused their attention
on the cashier,
Ms Rousseau and demanded money from her. At that stage the manager,
Mr. Menezes, appeared on the scene and the
appellant turned his
attention on him and left his co-attacker to deal with the cashier.
The appellant ordered the manager to
go open the safe in the main
office from which money was taken. The cellphone cards and cigarette
cartons were, in fact, handed
to the other attackers by the other
cashiers and were not taken from the manager who was directly
involved with the appellant.
Mr. Menezes is adamant the appellant
did not assault him save for the initial pointing of a fire-arm to
his side.
[5] On
the hearing of the appeal it was argued that the sentences imposed by
the trial court ought to have been ordered to run concurrently.
In
support of this submission it was stated that the five convictions,
in fact, constituted one continuous criminal transaction
committed by
a group of attackers with common purpose and one intention to rob
who-ever they would find in the business at that
point in time. I
agree with this argument. The very argument further raises the
question of a possible duplication of convictions:
See the judgment
of Streicher JA in
LUVUYO
MANELI v THE STATE
,
case number 494/07 (SCA) delivered on 1 April 2008 yet unreported.
For our purposes, we are to decide on the question of sentence
and
believe the sentence below will cover this aspect as well but will
not do away with that possibility of the duplication of
convictions.
[6] It
was further argued that the trial court erred in not finding that in
respect of count 1 the substantial and compelling circumstances
making a lesser sentence than the prescribed minimum sentence
possible existed. The trial court, in other words, erred in
separating
count 1 from the other counts when considering the
existence or not of substantial and compelling circumstances. In
respect of
counts 2 to 5 the trial court found that the substantial
and compelling circumstances existed and imposed a lesser sentence of
two (2) years imprisonment in respect of each count on the grounds of
the cumulative effect of the following factors: that the appellant
was a first offender; that the appellant spent two years awaiting
trial; that no one sustained any serious physical injury except
shock; that in as far as counts 2 to 5 were concerned the amounts
involved were insignificant and that in as far as those counts
were
concerned, the appellant was not personally involved.
[7] There
is evidence on record showing conclusively that the operation was
planned and executed with a single intent to rob who-ever
would be
found in the supermarket on that night; that the execution plan was
based on the agreed
modus
operandi
that each one of the armed attackers would focus on victims found in
the business; that the loot would be taken to some place for
distribution among the attackers and that the attackers acted with a
common purpose to rob.
[8] The
question that arises is whether it is possible and, indeed, feasible
to find, in a situation like this, the existence of
substantial and
compelling circumstances in respect of some counts and not in
respect of the others on the grounds that in one
instance the
appellant was directly involved and in others not. The trial court’s
other reasoning was that the amount involved
in count 1 was more
substantial than that involved in other counts clearly overlooking
the fact that it was all, nonetheless, destined
for a common pool
from which each one of the attackers were to share. Furthermore, I
believe the question of substantial amount,
whatever the amount,
would be relevant to the question of sentence and not so much to the
determination of the existence or not
of the substantial and
compelling circumstances required for the deviation from the
imposition of the minimum prescribed sentence.
[9] The personal
circumstances of the appellant require further attention. At the
time of the commission of the offence he was
29 years of age; he was
unmarried and had no children; he was an owner of an electronic
business in Johannesburg from which he
earned approximately R3 000,00
per month; he was an outright first offender and he had spent two
years awaiting trial at the time
of sentencing. He had not caused
any physical injuries to the manager. He assisted the police in
tracing the other culprits though
it was not entirely out of own
volition the circumstances compelling him so to act and through his
efforts most of the goods robbed
were recovered though it also led to
bloodletting. As a result of the conviction he, in addition to the
sentence, suffered a loss
in that his relatively new Ford Bantam van
was forfeited to the State.
[10] Recognising
the fact that the court of appeal may not interfere with the
sentencing discretion of the trial court unless justified
to do so on
the grounds of serious misdirection by the trial court; see
S
v KIBIDO
1998 (2) SACR 213
(SCA) at 216 l – j. See also the judgment of
Howie JA in
S
v MATLALA
2003 (1) SACR 80
(SCA) at 83 e – f where the following was
stated:
“
In the
latter situation interference would only be competent if the
appellate Court were satisfied that the trial court had not
exercised
its sentencing discretion reasonably.”
[11] Considering that the
trial court had found that there were substantial and compelling
circumstances present to justify a departure
from the imposition of
the prescribed minimum sentence of 15 years imprisonment in respect
of the convictions on counts 2 to 5
and considering that all the
counts related to a single criminal transaction carried out with a
single common purpose to rob, I
find it unreasonable to rule out the
existence of substantial and compelling circumstances in respect of
count 1 on the grounds
advanced by the trial court. At the same time
I am mindful of the fact that:
“
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny.”
P
er
Marais JA in
S
v MALGAS
2001 (1) SACR 469
(SCA) at 477 d – e. The trial court ought to
have found that the substantial and compelling circumstances were
present in
as far as count 1 was concerned as well. The court of
appeal is entitled to interfere with the sentence of the trial court
in
this matter.
[12] Bearing
in mind the nature and the seriousness of the offences of which the
appellant was convicted, the interest of the society
as fully covered
by the trial court, the personal circumstances of the appellant as
alluded to above and bearing in mind the purposes
of sentence as set
out in
S
v KHUMALO AND OTHERS
[1984] ZASCA 30
;
1984 (3) SA 327
(A) at 330 D – E where Nicholas JA stated:
“
In the
assessment of an appropriate sentence, regard must be had
inter
alia
to the main purposes of punishment mentioned by DAVIS AJA in
R
v Swanepoel
1945 AD 444
at 455, namely deterrent, preventive, reformative and
retributive...”
I am satisfied that the
sentence imposed in respect of count 1 should be tempered with and
agree that –
“
...
while
each of a number of mitigating factors when viewed in isolation may
have little persuasive force, their combined impact may
be
considerable.”
S
v MALGAS
,
supra
,
at 477 g – h.
[1
3] The
following order is consequently made:
1. The
appeal on sentence is upheld.
2. The
sentence of 15 years imprisonment in respect of count 1 is set aside
and substituted by the sentence of ten (10) years imprisonment
which
sentence is antedated to 2 February 2007.
3. The
sentences imposed in respect of counts 2 to 5 are ordered to run
concurrently. They are in addition ordered to run concurrently
with
the sentence in 2 above.
_____________
K.J. MOLOI, AJ
I
concur.
____________
C.
VAN ZYL
,
J
On
behalf o
f
appellant: Adv. T.B. van Rensburg
Instructed by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On behalf of
respondent: Adv. D.W. Bontes
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/sp