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[2019] ZASCA 75
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Chonco v S (1247/2018) [2019] ZASCA 75 (30 May 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non reportable
Case
no: 1247/2018
In the matter between:
THOKOZANI
KWAZI
CHONCO APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Chonco
v The State
(1247/2018/)
[2019] ZASCA 75
(30 May 2019)
Coram:
Navsa ADP and
Saldulker JA and Eksteen AJA
Heard:
16 May 2019
Delivered:
30 May 2019
Summary:
Criminal Law –
appeal against sentence above prescribed minimum sentence –
whether justified – failure to provide
reasons – sentence
considered afresh.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Makhanya and
Keightley JJ sitting as court of appeal):
1
The appeal against
sentence is upheld.
2
The order of the high
court is set aside and substituted as follows:
‘
The
appeal is upheld to the extent reflected in the substituted order:’
‘
The
magistrate’s order in relation to sentence is set aside and
substituted as follows:
(a)
The accused is
sentenced to 15 years’ imprisonment.
(b)
The sentence is
antedated to 30 August 2011.’
JUDGMENT
Saldulker
JA (Navsa ADP and Eksteen AJA concurring):
[1]
The appellant,
Mr
Thokozani Chonco
, was convicted in the
Alexandra Regional Court on one count of robbery with aggravating
circumstances and sentenced to 18 years’
imprisonment. An
application for leave to appeal
against both his conviction and sentence was refused. On petition to
the Gauteng Local Division
(the high court) leave to appeal was
granted against sentence only. The appellant’s appeal against
the sentence to the high
court (Makhanya and Keightley JJ) was
however unsuccessful. The appeal before us, against sentence only, is
with the leave of this
court.
[2]
The issue on appeal is whether the sentence of 18 years’
imprisonment imposed by the regional court magistrate (Mr Boshoff)
in
respect of the robbery count was appropriate.
[3]
I turn to consider the facts. On the morning of 27 January 2007, the
complainant, a soft drink wholesaler was robbed at his
business at
gunpoint by the appellant and another perpetrator. They took a
cellular phone, cigarettes and R10 000 cash from
him. None of
those items was recovered. The complainant was unable to identify his
assailants. However the appellant was linked
to the crime by means of
his palm print, found on the drawer in the office where the
wholesaler kept the money. The appellant did
not dispute that the
palm print was his. His version was that he had entered the area as a
result of an invitation from the complainant
because of a dispute
concerning the state of the money tendered and the change given to
him. That version was rightly rejected.
As stated earlier, he was
duly convicted and sentenced by the regional court magistrate.
[4]
At the time of sentencing, the appellant
was
30 years old with three minor children. He and the children resided
with his mother, a pensioner. The children’s mother
was
deceased. The appellant was the sole breadwinner. He is a first
offender in respect of this type of offence. The appellant
was
incarcerated for a period of five months awaiting finalisation of his
trial.
[5]
In sentencing the appellant to 18 years’ imprisonment the
magistrate took into account that the
offence
was serious and prevalent in the court’s jurisdiction, and
drastic measures were called for to curb serious crimes.
The
following comments by him are relevant:
‘
The
court is of the opinion that quite clearly no exceptional or
compelling circumstances are present to justify the imposition
of a
lesser sentence . . .The court is of the opinion that the following
is a well-balanced sentence. You are sentenced to 18 years’
imprisonment in terms of section 51(1) of the [Criminal Law Amendment
Act 105 of 1997] . . .’.
[6]
On appeal, the high court concluded that the sentence imposed by the
magistrate was appropriate and justifiable in that the
court was at
liberty to impose a sentence in excess of the minimum sentence of 15
years’ imprisonment in terms of the Act.
[7]
Section 51 of the Act sets out the discretionary minimum sentence for
certain serious offences. Robbery with aggravating circumstances
falls within Part II of Schedule 2, and within the purview of s
51(2)
(a)
(i) of the Act. The relevant part of this section
provides:
‘
(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or High court shall sentence a person
who has been
convicted of an offence referred to in
(a)
Part II of Schedule
2, in the case of-
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a second offender of any such offence, to imprisonment for a period
of not less than 20 years; and
(b)
.
. . .’
[8]
A proviso to s 51(2) of the Act reads as follows:
‘
Provided
that the maximum term of imprisonment that a regional court may
impose in terms of this subsection shall not exceed the
minimum term
of imprisonment that it must impose in terms of this subsection by
more than five years.’
[9]
The magistrate cannot be faulted for finding that there were no
substantial and compelling circumstances
[1]
justifying a sentence of less than 15 years imprisonment. He
sentenced the appellant to a period beyond the prescribed minimum
sentence, ostensibly in terms of the proviso to s 51(2). The problem
is that he provided no basis for doing so.
[10]
It remains a salutary
principle of our law that judicial officers should give reasons for
every decision they make, particularly
if it has adverse consequences
for the accused. This principle, a
s stated
by Navsa JA in
S v
Maake
[2010] ZASCA 51
;
2011 (1) SACR 263
(SCA) paras 19-28, is deserving of consideration:
‘
It
is not only a salutary practice but obligatory for judicial officers
to provide reasons to substantiate conclusions. The magistrate
did
not do so in respect of the maximum sentence imposed by him. In an
article in
The
South African Law Journal
entitled “Writing a Judgment”, former Chief Justice M M
Corbett pointed out that this general rule applies to both
civil and
criminal cases. In civil cases it is not a statutory rule but one of
practice . . .’
(See
the decisions referred to in
S
v Maake
)
[11] In
S v Msimango
[2017]
ZASCA 181
;
2018 (1) SACR 276
(SCA) para 24, this court in dealing
with the imposition of a sentence beyond the prescribed minimum
sentence in terms of the proviso
said the following:
‘
In
terms of s 51(2) of the CLAA, the appellant should have been
sentenced to a period of not fewer than 15 years’ imprisonment
in the absence of substantial and compelling circumstances. It is
true that the regional magistrate had the power to add a further
five
years to the minimum sentence of 15 years’ imprisonment.
However, the increase is not to be done whimsically but on
sound
legal principle which can withstand scrutiny. This requires any
presiding officer who intends to invoke this power to give
reasons
therefore. Regrettably, the regional magistrate gave no reasons for
increasing this sentence with an additional five years.
On the
evidence as it stands, the increase is not justified.’
[12]
It must be understood that the minimum sentencing regime was a
legislative measure to deal with increased criminality. As stated
above, the magistrate rightly concluded that there were no
substantial and compelling factors. The magistrate failed to identify
and record any facts or circumstances which justified a sentence of
imprisonment in excess of the prescribed minimum sentence of
15
years’ imprisonment. The magistrate’s failure entitles us
to interfere with the question of sentencing afresh. There
is no
basis on the record to conclude that the robbery in question was such
as to attract a sentence greater than the prescribed
minimum. One
should also not lose sight of the fact that the appellant has spent
five months in custody awaiting finalisation of
his trial. The
prescribed minimum sentence of 15 years’ imprisonment was
therefore the appropriate sentence. Counsel on behalf
of the state
was rightly constrained to agree that this was so.
[13]
In light of the conclusions
reached, the following order is made:
1.
The
appeal against sentence is upheld.
2.
The order of the high
court is set aside and substituted as follows:
‘
The
appeal is upheld to the extent reflected in the substituted order:’
‘
The
magistrate’s order in relation to sentence is set aside and
substituted as follows:
(a)
The accused is
sentenced to 15 years’ imprisonment.
(b)
The sentence is
antedated to 30 August 2011.’
______________________
H K Saldulker
Judge of Appeal
Appearances:
For
Appellant: W A Karam
Instructed
by: Legal Aid SA Johannesburg Office
Johannesburg
For
Respondent: N P Serepo
Instructed
by: Director of Public Prosecutions
Johannesburg
[1]
In regard to what constitutes substantial and compelling
circumstances: See para 9 of
S
v Malgas
2001
(2) SA 1222
(SCA).