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1992
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[1992] ZASCA 163
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S v Sobandla (176/91) [1992] ZASCA 163 (22 September 1992)
CASE NUMBER 176/91 H v N
IN THE SUPREME COURT OF SOUTH AFRICA
(APPèLATE DIVISION)
In the matter between
DOUGLAS NOYOSI
SOBANDLA
Appellant
and
THE
STATE
Respondent
CORAM
: VAN HEERDEN, VIVIER, JJA,
et HOWIE, AJA
HEARD:
14 SEPTEMBER 1992
DELIVERED:
22 SEPTEMBER 1992
JUDGEMENT
HOWIE, AJA:
Appellant was convicted in a regional court, firstly, of housebreaking with
intent to rob and robbery and, secondly, of common assault.
The two counts being
taken together for sentence purposes, he was ordered to
2
serve 8 years' imprisonment. Pursuant to the grant of a certificate in terms
of
sec 309
(4) (a) of the
Criminal Procedure Act, 51 of 1977
, appellant appealed
against the sentence to the Eastern Cape Division. The appeal was dismissed but
he was granted leave to appeal
to this court.
Appellant, a man in his early forties, stood trial with three teenage youths.
I shall refer to them as accused nos 2, 3 and 4 respectively.
They were charged
on the first count with breaking and entering the home of George Kaldis, a
Sterkstroom shopkeeper, and robbing
his wife, Irene, of R180 in cash. On the
second count they were charged with attempting to rob George Kaldis in the
course of the
same raid. I have already indicated the result of the case as far
as appellant is concerned. The other accused were convicted as
charged on count
one and accused nos 2 and 3 were convicted of assault on count two.
3
The break-in occurred after dark on a winter's evening at about half past six
while Mr Kaldis was still at his shop. Appellant, who
knew that Mr Kaldis was
not yet home, assembled his young accomplices shortly beforehand. He provided
everyone with balaclavas and
handed accused no 3 a knife. Accused no 2 was also
in possession of a knife. The gang, all wearing their balaclavas, then went to
the front door of the house. The bell was rung. Mrs Kaldis had opened the door
only slightly when it was pushed wider. The gang entered.
Appellant and accused
nos 2 and 3 proceeded to tie up Mrs Kaldis and her two young children with
pieces of rope. Mrs Kaldis was gagged
with a stocking. Accused no 4 went to a
window and not long afterwards jumped out and ran away. Appellant and the
remaining co-accused
took the cash from Mrs Kaldis's handbag and proceeded to
search the home for more money. While they were doing so Mr Kaldis returned
home. He had just entered the
4
front door when his wife broke free and started screaming. At this, appellant
and accused nos 2 and 3 made for the front door. One
of them brushed against Mr
Kaldis. He reached out and grabbed accused no 2 and detained him until help had
arrived. Accused no 2
was then arrested. Appellant and accused no 3 escaped.
At about 4 o' clock the next morning appellant handed himself over to the
police at Sterkstroom. Having been lodged in the police
cells, he asked that Mr
Kaldis be bought to see him so that he could apologise for what had happened.
This was arranged. In tearful
contrition, appellant apologised profusely and in
doing so explained to Mr Kaldis, whom he knew well, that he had planned and
carried
out the robbery because he was in desperate financial straits, with
insufficient money to buy food for his wife and children.
It appears from the evidence that appellant had himself been a shopkeeper and
a regular customer of
5
Mr Kaldis. They had had many business dealings and were friendly towards one
another. In the mid - 1980's unrest in the Sterkstroom
black community, together
with accompanying trade boycotts, ruined appellant's business. He tried to make
money gambling but repeated
losses only worsened his position. Illness in his
family caused mounting medical bills which he was unable to pay. The prospects
were that all his assets would be attached at the instance of his creditors.
The shock of the robbery had an adverse effect on the Kaldis family. Mrs
Kaldis had to take sedatives and wanted to return to their
native Greece. The
elder child's school work slumped and the younger one had nightmares. As a
result Mr Kaldis had put his business
up for sale.
At the trial, contrary to appellant's initial attitude after the crime, he
pleaded not guilty and contested the incriminating evidence
against him
until
6
late in the hearing. It was only during cross-examination by the prosecutor
that he relented and in abject terms admitted his guilt
in all respects.
Three previous convictions were proved against appellant. The first was
rightly ignored. The second occurred in 1986. Appellant was
sentenced to R400 or
100 days for the theft of cigarettes worth R136,32. His third conviction was for
possession of a suspectedly
stolen radio worth R200. For that offence he was
sentenced in January 1989 (not much more than four months before the present
incident)
to a suspended sentence of R600 or 6 months.
That record and the obvious aggravating features of the case were rightly
emphasised by the trial court in assessing sentence. However
the magistrate went
on, despite the absence of evidence that knives were brandished, or even
produced, at any stage of the events,
to treat the case as one of armed
7
robbery. He also considered that the pursuit of a false defence until an
advanced stage of the proceedings rendered appellant's professed
remorse
equivocal. Weighing up the aforegoing factors against the mitigation inherent in
appellant's financial predicament, the trial
Court was of the opinion that the
prevalence of housebreaking and robbery in its area of jurisdiction warranted a
gaol sentence of
exemplary duration to deter others and to protect society.
It goes without saying that appellant was grossly misguided in seeking, by
these reprehensible means, to try to ameliorate his financial
position and, into
the bargain, to embroil innocent and probably gullible youths in participation.
(Accused nos 2 and 3 had no previous
convictions.) It is also plain that the
situation which appellant precipitated in raiding the Kaldis home carried the
grave potential
for very serious violence. Despite that, it seems to me that
the
8
magistrate over-stated the nature of the case in viewing it as one of armed
robbery. No weapon was used either to intimidate or to
achieve, in any other
respect the entry, the robbery or the getaway. And although the shock to the
victims was considerable, the
violence used was relatively slight.
The magistrate borrowed the quotation from the unreported Eastern Cape
Division decision in D. B. Batchelor v The State CA and R 667/1987
that "robbery
is the ultimate resort of desperate men". Robbery is indeed resorted to by
desperate men but for purposes of sentence
it will always require examination
whether their desperation stemmed from innate criminality or, on the other hand,
from circumstances
beyond their control. The collapse of appellant's business
was, by all accounts, certainly beyond his control. So were the medical
problems. The desperation thus engendered prompted his futile, but possibly
understandable,
9
gambling, and his despair only deepened.
The last of his previous convictions was sustained after appellant had
already fallen on hard times. The preceding one occurred at
about the stage that
the unrest, which led to the demise of his fortunes, was at its height.
As to appellant's remorse, the matter is, of course, clouded by his
ill-considered attempt at the trial to deny his guilt. However,
there can be no
gainsaying the genuineness of his attitude in giving himself up to the police on
the night in question and immediately
making a full apology to Mr Kaldis. These
are strong pointers to the nature of the offender who stood before the
magistrate for sentence.
His later
volte-face
was at least consistent
with the desperation already mentioned and the realisation that his crime had
served only to aggravate it.
As to the magistrate's view of the need for a
10
strongly deterrent sentence, the peculiar circumstances of the present case
do not, in my assessment, suggest the risk of a repeated
robbery or
housebreaking by appellant. Essentially what the trial Court had in mind was, in
the interests of the community, a sentence
which would deter others who might,
given the prevalence referred to, contemplate similar serious criminal conduct.
Having regard
to all the facts of the present matter, however, it seems to me
that appellant's counsel (who appeared at the court's request, and
for whose
assistance we are grateful) was right in contending, in effect, that appellant
was sacrified on the altar of deterrence,
thus resulting in his receiving an
unduly severe sentence. Where this occurs in the quest for an exemplary sentence
a trial court
exercises its descretion improperly or unreasonably:
S v
Collett
,
1990 (1) SACR 465
(A) at 470 i - 471 a.
It follows, in my view, that appellant ought
11
to have succeeded in the Court below.
It remains to consider an appropriate sentence in substitution for the one
imposed. Had it not been for the particular mitigating
circumstances present
here, the magistrate's sentence might well have been appropiate. Once those
circumstances are accorded due
weight, however, I think that all the
jurisprudential aims of punishment would be achieved by a sentence of 5 years of
direct imprisonment
and 3 years of suspended imprisonment. In the latter regard,
although I do not consider that there is really a risk of appellants'
future
resort to robbery or other violence, his past and present resort to dishonesty
is a factor justifying the imposition of a
deterrent suspension.
The appeal is allowed. The order of the court
a quo
is set aside and
replaced by the following:
"The appeal succeeds. The sentence imposed by the magistrate is altered to
read as follows:
12
'8 years' imprisonment of which 3 years are suspended for 5 years on
condition that during the period of suspension the accused commits
no offence of
which, intent to steal is an element and for which he is sentenced to
unsuspended imprisonment without the option of
a fine.'"
C T HOWIE ACTING JUDGE OF APPEAL
VAN HEERDEN, JA ) CONCUR VIVIER,
JA )