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[2008] ZAWCHC 57
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Thys v S (A179/08) [2008] ZAWCHC 57 (17 October 2008)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
REPORTABLE
CASE No: A 179/08
In
the matter of
ROMEO
THYS
Appellant
versus
THE
STATE
Respondent
JUDGMENT DELIVERED : 17 OCTOBER
2008
For
Appellant
:
Adv D C
Theunissen
Attorneys)
:
Legal
Aid Board
For
Respondent :
Adv T Berry
Heard
on 17 OCTOBER 2008
Bench:
Moosa, J et Saner, AJ
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
REPORTABLE
CASE NO: A179/08
In
the appeal between:
ROMEO
THYS
Appellant
and
THE
STATE
Respondent
JUDGMENT DELIVERED ON
17 OCTOBER 2008
SANER A.J:
[1]
In the Parow Regional Court in Cape Town, the Appellant was charged
with one count
of robbery with aggravating circumstances as described
in Article 1 of Act 51 of 1977 read together with the provisions of
Article
51(2)(a) of the
Criminal Law Amendment Act, 105 of 1997
.
He duly stood trial before Regional Magistrate Mr F Botes.
[2]
The Appellant’s defence at the trial was an alibi. He
said he had been
at work, with his father, the entire day, only
knocking off at a time after the crime with which he was charged had
been committed.
[3]
Quite correctly, in my view, assessing the evidence in its totality
(see
R v Hlongwani
1959 (3) SA 337
(A) at 341A
and
R v Khumalo
[1991] ZASCA 70
;
1991 (4) SA 310
(A) at 327H),
and not allowing the onus of proof to shift from the state (see
R
v Biya
1952 (4) SA 514
(A) and
Khumalo’s
case above at 327G-I), the Magistrate found Appellant guilty as
charged.
[4]
I say correctly because, not only was the identification evidence in
the matter convincing
and in line with how such evidence should be
approached (see
S v Jochems
1991 (1) SACR 208
(A);
S v Pretorius
1991 (2) SACR 601
(A);
S v Zitha
1993 (1) SACR 718
(A)), but also
Appellant’s alibi, as the Magistrate pointed out in his
judgment, positively bristled with improbabilities,
anomalies and
blatant untruths. Resting only on Appellant’s say-so,
thin as that was, without any corroborating evidence
which was
supposedly available but not produced by Appellant, the alibi was
unsustainable.
[5]
The Appellant was duly found guilty and sentenced to 15 years’
imprisonment
on 16 January 2008. The trial court decided that
there were no substantial and compelling circumstances persuading it
to
depart from the obligatory minimum 15 year sentence of
imprisonment.
[6]
The Appellant initially appealed against both his sentence and
conviction. Appellant’s
counsel, instructed by the Legal
Aid Board, received instructions from his client on 14 August 2007
telephonically from Brandvlei
Maximum Security Prison, to proceed
only with the appeal against his sentence. This is contained in
Mr
Loots
’ Heads of Argument. The appeal before us
is therefore concerned only with sentence.
[7]
In my view, the withdrawal of the appeal against conviction was
probably wise in the
circumstances as I do not think there would have
been much chance of it succeeding in any event.
[8]
I have already noted that the sentence imposed was the minimum in
terms of the applicable
minimum sentencing legislation, and the
Regional Magistrate found no substantial and compelling circumstances
persuading him not
to impose this sentence.
[9]
The salient facts regarding the commission of the offence were as
follows:
(a)
The Appellant and
another observed the Complainant and one or more school friends (then
school boys) playing with their cellphones
in the back garden of a
house during the late afternoon.
(b)
Later in the same day,
the Complainant and his friends were approached on a street corner by
the Appellant and another. The
other person had a knife. The
Appellant demanded the Complainant’s cellphone from him in a
threatening manner.
(c)
The Complainant refused
to hand it over and swore at the Appellant. The Appellant then
pulled out or showed a gun and the
Complainant threw down his
cellphone and he and his friend ran away.
(d)
The Complainant and his
friend were chased for a short distance by the Appellant and his
accomplice, the Appellant pointing his
firearm at the fleeing
Complainant and his friend. The Appellant and his accomplice soon
gave up the chase and disappeared.
(e)
Attempts to find them
immediately after by the Complainant and his friends, assisted by
some adults, were unsuccessful.
(f)
The Appellant was
arrested the next day. He denied all complicity with the crime
and said that he had been at work the entire
day on which the crime
was alleged to have been committed.
(g)
The value of the
cellphone stolen was approximately R2 000,00.
(h)
No one was injured in
the robbery and no overt physical violence was used. There was
some vague evidence as to some possible
“
shirt-grabbing
”
at the start of the incident, but that is all.
[10]
The personal circumstances of the Appellant were that he was 25 years
old at the time of the
commission of the crime. He had been in
casual employ more or less continuously as a labourer with one
employer for some
5½ years prior to the commission of the
crime. He lived at home with his parents and was a joint
breadwinner with
his father for the family vis-à-vis their
joint household. His father is also a labourer. He was
described by
his mother as a quiet and withdrawn individual.
[11]
The Appellant had no relevant previous convictions. In fact he had
only one previous conviction,
namely a fine of R100,00 for possession
of two “
stops
” of dagga. He is therefore,
for all intents and purposes, a first offender.
[12]
Despite the peremptory wording of
Section 51(2)(a)
of Act 105 of
1997, as amended, nevertheless the trial court retains a discretion,
as it must, with respect to deciding if substantial
and compelling
circumstances are present in each particular case.
See: The unreported
judgment of
Griesel J
in
S v Frans
Case
No A564/07 CPD para 14, where he said the following:
“
Al
die oorwegings waarom ‘n Hof van Appèl tradisioneel
traag is met die uitoefening van ‘n verhoorhof se diskresie
ten
opsigte van vonnisoplegging in te meng is ook aanwesig by die
beoordeel of die vraag of wesenlike en dwingende omstandighede
in ‘n
spesifieke geval aan of afwesig is. Die verhoorhof het normaalweg –
soos in die huidige geval – die voordeel
om eerstehands die
onderskeie persoonlikhede van die beskuldigde sowel as die
slagoffer(s) waar te neem, asook die effek wat die
betrokke misdade
gehad het – nie alleen op die individuele slagoffers daarvan
nie, maar ook op die plaaslike gemeenskap.
... In hierdie
omstandighede is ek van oordeel dat dit meer korrek en ook meer
sinvol sou wees om die beslissing ten opsigte van
wesenlike en
dwingende omstandighede aan die diskresie van die verhoorhof oor te
laat en om op appèl slegs weens beperkte
gronde met daardie
beslissing in te meng
”
.
[13]
It is settled law that a court of appeal will only interfere with the
exercise of the discretion
by a trial court if the exercise of such a
discretion is vitiated by a misdirection. (See:
S v
Oosthuizen
2007 (1) SACR 321
(SCA) at 324h –
325b;
S v Kibido
1998 (2) SACR 213
(SCA)
216g – j). When weighing the facts of this matter against
the 15 year sentence imposed, I find the latter startlingly
inappropriate (see
S v Ivanisevic
1967 (4) SA
572
(A) at 575H) and that the Magistrate misdirected himself in not
finding substantial and compelling circumstances.
[14]
In deciding to interfere with the sentence in this matter, I do not
lose sight of the fact that,
as was said in
S v Valley
1998 (1) SACR 417
at 420C–D by
Hoffmann AJ
:
“
The
crimes which the Appellant committed are extremely serious. We
live in a society which is becoming increasingly lawless;
firearms are frequently used in robberies and victims are not
uncommonly shot to death or badly wounded. Persons who
perpetrate
such crimes must be punished severely. Society
demands this and it is absolutely necessary that the message go out
to the
world that people who commit these sorts of crimes will be
dealt with severely
”.
[15]
I have also borne in mind, and taken note of, the judgment in the
leading case in this regard
of
S v Malgas
2001
(1) SACR 469
(SCA) at para 25 concerning the reasons why the
Legislature saw fit to pass the minimum sentencing legislation.
In this regard,
I refer particularly to the words of
Marais JA
where he said:
“
While
the emphasis has shifted to the objective gravity of the type of
crime and the need for effective sanctions against it, this
does not
mean that all other considerations are to be ignored … the
ultimate impact of all circumstances relevant to sentencing
must be
measured against the composite yardstick (‘substantial and
compelling’) …
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust and that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.
In
so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment and
that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed paying due regard to the benchmark which
the Legislature
has provided
”
.
[16]
Nevertheless, I believe that imposing a 15 year jail sentence on a
relatively youthful accused,
essentially a first offender, for a
robbery where no shots were fired, no physical violence was used, no
physical harm was caused
and where a single cellphone worth
approximately R2 000,00 was stolen, would work an injustice. I
find in those circumstances
substantial and compelling reasons not to
impose the minimum sentence, as the Magistrate should have done. In
this regard I am
guided by the majority judgment in the case of
S
v Nkomo
2007 (2) SACR 198
(SCA), and particularly at
paras 13 and 14, where
Lewis JA
said that:
“
The
factors that weigh in the Appellant’s favour are that he was
relatively young at the time of the rapes, that he was employed,
and
that there may have been a chance of rehabilitation. No
evidence was led to that effect, however … nonetheless
these
are substantial and compelling circumstances … A sentence of
life imprisonment – the gravest of sentences that
can be passed
even for the crime of murder – is in the circumstance unjust
and this court is entitled to interfere and to
impose a different
sentence, one that it considers appropriate
”.
[17]
I mention also that, at para 24, the majority of the Court in the
Nkomo
case noted that, even though “
it may be
difficult to imagine a rape under much worse conditions … the
prospect of rehabilitation and the fact that the
Appellant is a first
offender must be regarded as substantial and compelling circumstances
justifying a lesser sentence
”. I am of the view
that similar considerations apply here.
[18]
In the
Nkomo
case, the majority therefore reduced the
life sentence to one of 16 years’ imprisonment.
[19]
I am therefore of the opinion that the 15 year sentence should be set
aside and that a suitable
sentence should be imposed in its place.
In doing so, I must of course consider the triad of the crime, the
interests of
society and the personal circumstances of the criminal.
(See
S v Zinn
1969 (2) SA 537
(A)). In the
assessment of an appropriate sentence I must have regard,
inter
alia
, to the main purposes of punishment, namely deterrence,
prevention, reformation and retribution. These considerations
have
been followed and laid down as the bedrock of all sentencing in
our courts for many years, and are set out in:
R
v Swanepoel
1945
AD 444
at 455
S
v Whitehead
1970
(4) SA 424
(A) at 436E – F
S
v Rabie
1975
(4) SA 855
(A) at 862
[20]
As was pointed out in
S v Khumalo
[1984] ZASCA 30
;
1984 (3) SA
327
(A) the possibility of reformation and rehabilitation should not
be sacrificed at the altars of retribution and deterrence.
As
Nicholas JA observed in
Khumalo’s
case:
“
It
is the experience of prison administrators that unduly prolonged
imprisonment, far from contributing towards reform, brings about
the
complete mental and physical deterioration of the prisoner
”.
I am respectfully of the
view that, in the present case, these remarks are particularly
applicable. The few facts we have
to hand indicate that the
Appellant is not yet a hardened criminal and I would hesitate to risk
making him so by imposing an unduly
lengthy sentence in the
circumstances. In my judgment, a 15 year sentence will
over-emphasise the deterrent and retributive
aspects of punishment
and will leave little scope for rehabilitation.
[21]
Taking all of the above into consideration, I think an appropriate
sentence, which would send
a correct message to society that the
crime of robbery is considered very seriously by the courts, would be
8 years imprisonment
with 3 years thereof suspended for 5 years, on
condition that the Appellant is not convicted of a crime during the
time of suspension,
of which theft, assault or robbery are elements.
[22]
The sentence of 15 years imprisonment is accordingly set aside.
It is replaced with a sentence
of 8 years imprisonment with 3 years
thereof suspended for 5 years on condition that the Appellant is not
convicted of a crime
of which robbery, assault or theft are elements,
within the time of the suspension, and is sentenced to imprisonment
without the
option of a fine.
J SANER
MOOSA, J: I
agree and it is so ordered.
E MOOSA