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1989
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[1989] ZASCA 104
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S v Goldman (63/88) [1989] ZASCA 104; [1990] 1 All SA 317 (A) (14 September 1989)
63/88 N v H
LISLE GOLDMAN v THE STATE
SMALBERGER, JA
63/88
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between
LISLE
GOLDMAN
Appellant
and
THE STATE
Respondent
CORAM
:
SMALBERGER, STEYN et GROSSKOPF, JJA
HEARD
: 5 September
1989
DELIVERED
: 14 Septemher 1989
JUDGMENT
SMALBERGER, JA :-
This is an appeal against sentence. The appellant was
convicted in the Regional Court in Pretoria on two counts of robbery. On each
count he was sentenced to 6 years imprisonment, half of which was conditionally
suspended for 5 years. His appeal against his sentence
to the Transvaal
Provincial Division was dismissed. His present appeal
2/
2 is with leave of this Court.
The appellant was initially
charged with three other accused. His co-accused were accused 1, 3 and 4
respectively, and I shall refer
to them individually as such. At the original
hearing the appellant pleaded not guilty; his co-accused pleaded guilty. A
separation
of trials was ordered. The cases against the appellant's co-accused
were duly disposed of. The appellant's trial subsequently proceeded
before a
different magistrate. At the commencement thereof the appellant changed his plea
to one of guilty on both counts of robbery
with which he was charged.
The
facts relevant to the convictions of the appellant and his co-accused are the
following. On 20, 22 and 24 August 1986 respectively
robberies occurred at three
filling stations in the Pretoria area. On
3/
3 each occasion a loaded crossbow was used to threaten and
subdue the attendants at the vanous filling stations. They were thereafter
robbed of the money in their possession. The total amount taken on the three
occasions amounted to just under R700-00.
The appellant participated in the
second and third robberies, but not in. the first, Accused 1 participated in all
three robberies;
accused 3 and 4 in the first and second only. At the time when
the offences were committed the appellant was 18 years and 7 months
of age.
Accused 1 had just turned 19; accused 3 was 19 years and 8 months old; and
accused 4 was 16 years and 10 months of age. Accused
3 was married with one
child.
The magistrate who tried accused 1, 3 and 4 sentenced them as
follows:
4/
4
Accused 1
: 5 years imprisonment and 5 cuts.
The whole
of the sentence of
imprisonment was conditionally
suspended for 5
years.
Accused 3
: A fine of Rl 000-00 or 12 months
imprisonment,
plus a further 3
years imprisonment conditionally
suspended for 5
years.
Accused 4
: A moderate correction of 5 cuts
with a light cane, together with 2
years imprisonment
conditionally
suspended for 5 years.
Before the appellant was sentenced
the
presiding magistrate was advised of the ages of the
appellant's
co-accused and the sentences imposed upon
them. When leave was granted by
this Court to the
appellant to appeal against his sentence, he was
5/
5
simultaneously granted leave to lead further evidence
by placing before
this Court the record of the
proceedings at the trial of his co-accused.
The
record of those proceedings has duly been incorporated
in the appeal
record.
At his trial the appellant handed in a signed
statement outlining the circumstances of the two
robberies in which he
participated. The State
apparently accepted the correctness of the
facts
alleged in the statement. The statement reads as
follows:
"I am the accused in the present matter and I am aware of all the facts
contained in this statement. I was initially a co-accused
with three other
persons in respect of three robberies that took place. I was present during two
of the three robberies that were
committed.
I took part in the second robbery that was committed under the following
circumstances:
6/
6
1. We drove to a garage in Pretoria
East in one of the other accused's
car
which car was driven by the
owner of the said vehicle.
I was sitting at the back of the car holding a cross-bow. We stopped at the said
garage and I got out of the car and held the two
petrol attendants up with the
cross-bow. I however saw to it that the cross-bow was never pointed at them and
I also saw to it that
the cross-bow's safety-catch was on. I then forced the two
petrol attendants to lie on the ground while my co-accused took some money
and
Coke from the garage and the driver filled his car up with petrol.
2. The third robbery took place under
exactly the same circumstances
apart
from the fact that the garage
involved was in Pretoria North. I
once more
made sure that the cross-
bow was never pointed in the
direction of the
petrol attendants
7/
7
and care was taken that the safety-catch of the cross-bow was on during the
actual robbery. 3. I have no knowledge as to what took
place during the first
robbery."
Although it is trite that sentences should
be individualised, our courts generally strive for uniformity of sentences in
cases where
there has been a more or less equal degree of participation in the
same offence or offences by participants with roughly comparable
personal
circumstances. In sentencing the appellant it was incumbent upon the magistrate
to have regard to the sentences imposed
upon his co-accused. If he had proper
regard thereto, as he professes to have done, it is difficult to explain the
obvious and striking
disparity between the sentence imposed upon the appellant
(an effective 6 years imprisonment) and those imposed on his co-accused
(which
avoided direct
8/
8 imprisonment). The disparity may to some extent be
accounted for on the basis of a misdirection by the magistrate with regard to
the age of accused 1. He appears to have been under the mistaken impression that
accused 1 was only 16 (and therefore much younger
than the appellant) at the
relevant time, whereas he was in fact slightly older than the appellant.
A
comparison between the role played by the appellant and his co-accused
(particularly accused 1) in the commission of the offences,
and their respective
personal circumstances, establishes that the striking disparity in their
sentences is not justified. As previously
mentioned, the appellant only
participated in the second and third robberies. The idea to rob did not
originate with him, nor was
he party to the planning and execution of the
initial robbery. The second and third robberies followed on the successful
9/
9 execution of the first. By contrast accused 1 was party to
the planning of the first robbery, and participated in all three. The
finding by
the court a
quo
that "die appellant volgens sy eie verklaring die leier
van die bende was wat 'n gewetenlose aanval op petroljoggies uitgevoer het"
is
not supported by the evidence. It does not follow from the fact that on two
occasions he was in possession of the only weapon,
that the appellant was the
leader of the group. His non-involvement in the initial robbery rather suggests
the contrary. The appellant
handled the crossbow at the second and third
robberies; accused 1 did so at the first. The robberies represented a joint
effort between
those participating on each occasion. The appellant and his
co-accused each had a specific role to play. In the circumstances the
moral
guilt of the person handling the crossbow would not appear to be any
10/
10 greater than that of the other participants. Furthermore,
the appellant handled the crossbow with care to avoid causing injury.
There is
accordingly nothing in the circumstances surrounding the robberies to justify a
disparity of sentence between the appellant
and accused 1 - if anything, the
role of accused 1 is deserving of greater moral stricture than that of the
appellant.
Turning to a comparison of their personal circumstances one finds
little to choose between the appellant and accused 1. They were
both of a
roughly similar age. The appellant has a previous conviction for hindering the
police in the execution of their duties
for which he was sentenced to a juvenile
whipping of 5 strokes. Accused 1 is a first offender but, as I have pointed out,
he was
involved in all three robberies. The appellant comes from a more
11/
11
stable and prosperous environment than accused 1, but both are prone to
outside influence, and each experienced psychological and
other problems during
his formative years. I do not propose to canvass the evidence in this regard in
detail. Suffice it to say that
there are no significant, or sufficiently
significant, differences in their personal circumstances to justify the one
being imprisoned
and the other not.
Despite the serious nature of the crimes
committed the sentence imposed upon accused 1 cannot be said to be unreasonable
or clearly
inappropriate. Having regard to their relatively equal degrees of
participation and moral blameworthiness, and their comparable personal
circumstances,' the sentence imposed upon the appellant, compared with that of
accused 1, is disturbingly inappropriate, and interference
therewith
12/
12 is fully justified (
S v Marx
1989(1) SA 222 (A) ).
A comparison with the sentence imposed on accused 3 leads to the same
conclusion.
It was also strenuously argued on appeal that the magistrate had
misdirected himself in failing to give due and proper consideration
to the
evidence of the clinical psychologist, Mrs du Toit, who testified on the
appellant's behalf. The contentions that were advanced
are not without merit,
but in view of the conclusion already reached it is not necessary to consider
them further, nor to analyse
the evidence of Mrs du Toit, or the magistrate's
approach thereto, in any detail. In arriving at what I consider to be an
appropriate
sentence I shall have regard to the salient features of Mrs du
Toit's evidence.
The appellant spent 9 months in gaol serving his sentence before he was
admitted to bail pending the
13/
13
present appeal. The actual imprisonment already
undergone by him is
relevant in determining what
sentence should be substituted for that of
the
magistrate, and what order should be made to do proper
justice to the
appellant. In my view the appellant
does not merit a heavier sentence than
that imposed on
accused 1. On a conspectus of all relevant
considerations
a fully suspended sentence of
imprisonment would be appropriate.
The appeal succeeds and the following order
is
made:
1) The sentences imposed upon the
appellant are set
aside. There is substituted in their stead the following sentence:
"Both counts taken together for the purposes of sentence -
5
years imprisonment, the whole of which is suspended for
5
14/
14
years on condition that the accused is not convicted of robbery or theft, or
any attempt thereto, committed during the period of suspension."
2) It is further ordered that, if the suspended sentence is at any time
brought into force, it is to be borne in mind that the appellant
(accused) has
already served 9 months imprisonment which period is then to be taken into
account.
JUDGE OF APPEAL J W SMALBERGER
STEYN, JA)
) CONCUR GROSSKOPF JA)