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[2008] ZAWCHC 192
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S v Nkomonde (A784/2004) [2008] ZAWCHC 192 (9 May 2008)
JUDGMENT
IN
THE SUPREME COURT OF SOUTH AFRICA
CCAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A784/2004
DATE:
9
MAY 2008
In
the matter between:
BONGANI
NKOMONDE
Appellant
and
THE
STATE
Respondent
JUDGMENT
THRING,
J
:
The
appellant in this matter was charged in the regional magistrate's
court where he faced two charges. The first was robbery
with
aggravating circumstances, it being alleged that on the 16th
November, 2000, at a place called Pitstop, in Woodstock, he
robbed
the complainant, a certain Ganiefa Ismail, of R100 000 in cash by
pushing her and grabbing the money from her and threatening
her with
a firearm. Charge 2 was that on the same date and at the same place
the appellant contravened section 2{1) of the Dangerous
Weapons Act,
No. 71 of 1968 by being in possession of a dangerous weapon, being
an object so resembling a firearm that in the
circumstances in which
it was possessed by the appellant it would probably be mistaken for
a real firearm. To these charges the
appellant pleaded not guilty.
He was represented at his trial by an attorney, He was convicted on
both charges, save that aggravating
circumstances were not found to
be present. The magistrate took both charges together for the
purposes of sentence and sentenced
the appellant to eight years'
imprisonment. With the leave of the regional magistrate the
appellant appeals against his sentence
only.
This
is a sad and difficult case. At the time of the commission of these
crimes the appellant was still a young man, being only
24 years of
age. He had a clean record. He was born in Ladysmith, KwaZulu-Natal,
but he grew up in Malawi with his father. He
studied mechanical
engineering successfully at the University of Malawi and graduated
there as an engineer. In 1997, at the age
of about 22 years, he
returned to South Africa. He first went back to Ladysmith and later
came to Cape Town. Here he obtained
employment as a driver with
Pitstop. He also assisted sometimes in Pitstop's workshops, but was
paid no extra remuneration for
this work. He worked for Pitstop for
about two years before the incident occurred which is here in
question. He seems from all
the evidence to have been a law-abiding,
hardworking, useful, productive member of society. In his judgment
on sentence the magistrate
says that the appellant made a very
favourable impression on him as a person. He went on to say that he
coul believe that a person
like the appellant would commit a crime
such as this. The magistrate's impressions are borne out by a
reading of the record.
The appellant comes across in his evidence as
an essentially intelligent, diligent, decent young man, even if
somewhat garrufous.
He exhibited great contrition in his evidence
for what he had done. That remorse appears to be sincere.
However,
he was unable to explain satisfactorily why he had acted as he did,
save to say that he felt "cheated" by his
employer because
he was not paid overtime or extra for working in the workshop, and
that at the time he felt depressed and helpless.
He also made
mention in his evidence of the devil. These, of course, are not
acceptable explanations for his crimes. Nevertheless,
one gets the
clear impression that the magistrate had a large measure of sympathy
for the appellant and that he was most reluctant
to send him to
prison. He said in his judgment that he found no pleasure in what he
had to do and that he "loathed"
imposing a sentence of
direct imprisonment on the appellant because of his "very
favourable personal circumstances".
To
this must be added that the appellant's present employer, a Mr Dylan
Johnson, was called in mitigation of sentence. The appellant
worked for him as a driver for about three years whilst his trial
was pending. Johnson said that the appellant was a good worker
and
had never been a problem; that he had frequently been entrusted with
large sums of cash, sometimes as much as R30 000, but
that he had
never misappropriated any of it. He said that the appellant's
services were valued by him and that they would be
retained, if
possible. He clearly has confidence rn the appellant. He says that
he has always trusted him and that his trust
has never been abused
by him,
That
all said, the offences of which the appellant has made himself
guilty here of are undoubtedly very serious ones, especially
charge
1, the charge of robbery, even without aggravating circumstances
being present as defined in
section 1
of the
Criminal Procedure Act,
No. 51 of 1977
. The circumstances in which the crimes were committed
are also to some extent aggravating in the usual sense of the word.
As
the appellant himself frankly admitted in his evidence, he
planned the robbery very carefully, down to the last detail. First
he took leave of absence from his employer as from the 15
th
November, 2000. However, instead of going home that evening, he
concealed himself in his employer's premises and waited there
all
night until the next morning. He had with him a bag in which was a
realistic-looking toy pistol. He said that this pistol
was
coincidentally in the bag and that he had no intention of using it.
However, the magistrate correctly rejected this evidence
as untrue.
The appellant also took with him a pair of surgical gloves so as not
to leave any fingerprints and a ski mask or woollen
cap which he
pulled over his face so as not to be recognised. When a member of
his employer's staff, Mrs Ganiefa Ismail, arrived
at Pitstop in the
morning and opened the safe the appellant, wearing the mask or cap,
surprised her, pushed her to the ground
and seized some bags which
contained about R100 000 in cash which she was clutching to her
breast, having just removed them from
the safe. He made off with
these, but fortunately he was almost immediately apprehended by
other members of the Pitstop staff
before he could make his getaway.
As
the appellant conceded in his evidence, Mrs Ismail is old enough to
be his mother. To his credit he did subsequently express
concern
about her to the police after his arrest and he apologised in his
evidence for what he had done to her. Fortunately she
sustained no
physical injuries in the robbery but she was greatly traumatised by
the event. The magistrate accepted, correctly,
that on the evidence
the appellant did not in fact use the toy pistol in committing the
robbery, nor did he threaten anybody
with it. All the money in the
bags was recovered, but this, of course, was not through any act of
remorse or change of heart
on the part of the appellant.
A
further aggravating factor is that the appellant chose for his
victim his employer. He abused his position as an employee and
his
knowledge of the
modus
operandi
which
was followed regarding the money in his employer's safe.
It
is against this background that the sentence imposed by the
magistrate must be considered. I am quite satisfied that the
magistrate has not misdirected himself in any way in this matter.
Both his judgments on the merits and on sentence are painstakingly
careful and thorough. He considered all the possible sentencing
options at his disposal. In essence he exercised his discretion,
albeit with reluctance, and decided that he had to impose a sentence
of direct imprisonment on the appellant.
The
question which we now have to ponder on appeal is whether that
sentence is heavier than that which we would have imposed and,
if
so, whether it is so much heavier as to justify our interfering with
it.
Normatly
robbery of this kind could be expected to attract a sentence of
unqualified direct imprisonment for a medium to long
term, even in
the case of a first offender. However, in my view, the appellant's
exceptional personal circumstances call for
something of a departure
from the normal in this case. I say this mainly for the following
reasons.
The
appellant, starting from apparently humble beginnings, has been
industrious and enterprising enough over a period of some
years to
obtain a tertiary education and to qualify himself as a graduate in
mechanical engineering. Since then he has been gainfully
employed
almost all the time, earning an income with which he has contributed
to the support of his mother and his sister. He
has improved his
position even during the pendency of his trial to the extent that at
the time of his trial, he was earning approximately
R3 000 per week
working for Johnson, which is considerably more than he was paid at
Pitstop, where he received only R350 a week.
Over
the last ten years or so, then, both before and after his
conviction, and since the appellant reached adulthood, he has shown
himself in a number of respects to be basically a useful,
hardworking, responsible member of society, and he has not fallen by
the wayside, save in this one instance As a result it would not, in
my view, be in the interests of society for him to be incarcerated
on a long or medium term basis, unless good reason therefor should
be found to exist. Insofar as may be acceptable, other forms
of
punishment ought to be sought for him. One of these is correctional
supervision in some or other form. The magistrate did,
indeed,
consider it, but he came to the conclusion that correctional
supervision in terms of
section 276(1}(h)
of the
Criminal Procedure
Act was
inappropriate in this case because its duration was
restricted to a maximum of only three years. It was therefore not a
suitable
sentence, he found.
As
for imprisonment in terms of
section 276(1
)(i), the magistrate also
found that that would not be an appropriate sentence because it was
restricted to a maximum of only
five years which, in his view, would
not reflect the seriousness of the offence.
In
normal circumstances I would agree with all that the magistrate has
said in his judgment. However, as I have said, \ am of
the view that
the circumstances of this case are not normal, but are exceptional,
especially the appellant's personal circumstances.
in
S
v R
,
1993(1) SA 476 (A),
Kriegler,
AJA
sard the following at
488G-J
about
the generat policy which Courts ought to adopt in these matters:
"Die
Wetgewer het dus duidelik onderskei tussen twee soorte misdadigers,
naamiik die wat deur gevangesetting van die gemeenskap
afgesonder
moet word en die wat stafwaardig is maar nie uit die gemeenskap
verwyder hoef te word nie. Wat meer is, die Wetgewer
het
ondubbelsinnig deur die klemverskuiwing, wat uit die Wysigtngswet as
geheef spreek, aangedui dat straf, hervormend maar desnoods
hoog
bestraffend, nie noodwendig of selfs primer deur opsluiting in
gevangenis haalbaar is nie. Waar die wetgewende gesag so
duidelik sy
wens uitgespreek het-en waar die uitvoerende gesag (blykens die
wetsinwerkingstellende proklamasies) paraat is om
die nodige
administratiewe rugsteuning te verskaf, is dit die plig van
regsprekers om die middele wat so vrylik tot hulle beskikking
is as
daadwerklik op te neem. In die besonder moet daar ingesien word dat
daar nou gevoelige straf toegemeet kan word sonder
gevangesetting,
met al die bekende nadele aan laasgenoemde verbonde vir beide die
prisonier en die bree gemeenskap. 'n Vonnis
van korrektiewe toesig
kan tewens so saamgestel word dat dit vir die veroordeelde meer
beswaar
as
korttermyn
In
subsequent decisions in our Superior Courts it has repeatedly been
held that even in the case of serious offences, correctional
supervision may sometimes be an appropriate sentence. Of course, the
facts of each case differ, and each case must be decided
on its own
merits. There can be no rigidity in these matters, but correctional
supervision has been found suitable, for example,
in cases of
robbery with aggravating circumstances (
S
v Booysen
,
1993{1) SACR 698 (A)); murder
(
S
v
Potqieter
.
1994(1) SACR 61 (A)) and rape (S
v
A en 'n Andert
1994(1) SACR 602 (A)).
Whilst
I agree with the magistrate that correctional supervision under
section 276(1
)(h) would not be appropriate in the present case
because of its restriction to a maximum period of three years, I am
unable
to agree with him that the maximum period of five years
attached to a sentence in terms of
section 276(1)(i)
renders it
inadequate in the special and exceptional circumstances of this
case. The latter sentence entails a period of direct
imprisonment,
which I think is inevitable for the appellant. However, it need not
be a long period, provided that he is a suitable
candidate for
correctional supervision. The Commissioner of Correctional Services
may release him quite soon to serve the balance
of his term of
imprisonment in society, where he can continue to perform a useful
function and advance himself. Such a sentence,
it seems to me, is
called for in this case, not only because it would best serve the
interests of the appellant (such a reason
is seldom sufficient by
itself in a serious case such as this), but also because society in
general would, in my view, probably
benefit from it. The corrupting
influence of imprisonment is well known. Society probably has more
to gain in this matter, in
my judgment, from the appellant being
kept out of prison than it has from htm being incarcerated for a
medium to long term.
In
addition, provided that the period of imprisonment imposed under
section 276{1)(i)
of the
Criminal Procedure Act is
less than the
maximum period of five years, the balance can be imposed in the form
of imprisonment which is conditionally suspended.
Such suspended
imprisonment can then hang over the appellant's head, as it were,
and act as a further deterrent to any repetition
of his crimes which
he may be tempted to commit in the future.
For
these reasons, had I been sitting as the Court of first instance in
this matter, I would have imposed a period of imprisonment
of
substantially less than eight years under
section 276(1
)(i),
together with a further period of imprisonment, conditionally
suspended. The difference between that sentence and the eight
years'
direct imprisonment imposed by the magistrate is very substantial.
I think that it is more than substantial enough to
justify
interference with the sentence by us on appeal.
The
appellant has already served some seven months of his sentence. He
was sentenced on the 5
Eh
February, 2004, and we are informed that he was released on bail by
order of this Court on the 8
th
September, 2004. In addition, he spent about six weeks in custody
after his conviction, awaiting sentence. The Court expresses
the
strong hope that, in terms of
section 276(1)(i)
of the
Criminal
Procedure Act, the
Commissioner of Correctional Services will see
fit to place the appellant under correctional supervision within a
very short
time after this judgment has been handed down, subject,
of course, to him being found to be a suitable candidate therefor,
which
he appears to be.
In
the result, the appeal will be upheld. The sentence imposed on the
appellant by the regional magistrate is set aside and is
substituted
with the following:
"The
charges are taken together for the purposes of sentence.
The
accused is sentenced to 42 months' imprisonment in terms of
section
276(1
}(i) of the
Criminal Procedure Act, No. 51 of 1977
.
In
addition, he is sentenced to imprisonment for a further period of 18
months, which iatter imprisonment is suspended for five
years on
condition that he is not convicted of any offence of which an
element is violence against the person of another, or
of
contravening section 2(1) of the Dangerous Weapons Act, No. 71 of
1968, committed during the period of suspension. In terms
of section
12 of the Arms & Ammunition Act, No. 75 of 1969, the accused is
declared to be unfit to possess a firearm".
THRING,
J
MATOJANE,
AJ
:
I agree.
MATOJANE,
AJ