About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1999
>>
[1999] ZASCA 26
|
|
S v Riba (395/97) [1999] ZASCA 26 (12 May 1999)
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE NUMBER: 395/97
In the matter between:
ISAAC RIBA
APPELLANT
and
THE STATE
RESPONDENT
CORAM
:
GROSSKOPF,
PLEWMAN JJA and FARLAM AJA
DATE OF HEARING
:
7
MAY 1999
DATE HANDED DOWN
:
12
MAY 1999
REASONS FOR JUDGMENT
PLEWMAN JA
This is an appeal, with leave
granted by this Court, against the sentences imposed on the
appellant in respect of his conviction
on charges of murder and
robbery with aggravating circumstances. At the conclusion of
argument and subject to one alteration
in the sentence, the appeal
was dismissed with reasons to be filed later. These are the
reasons. Appellant was indicted on
these charges in the
Witwatersrand Local Division of the High Court together with three
other accused persons. Appellant and
two of his co-accused pleaded
guilty to the charges and their trial was separated from that of the
remaining accused. The sentence
in appellant’s case was one
of life imprisonment in respect of the murder charge and fifteen
years imprisonment on the
robbery charge. In so sentencing the
appellant, the learned judge directed that the effective term of
appellant’s imprisonment
would be life imprisonment “plus
fifteen years”. While this formulation of the sentence is not
addressed in the
heads of argument filed on appellant’s
behalf, I will presently have to return to that aspect. The heads
of argument address
the question of sentence only on the basis that
it must be reconsidered because the court
a
quo
(so it was
argued) over emphasised the seriousness of the offence and the
retributive aspects of punishment and perhaps with
less conviction,
on the ground that the sentence induced a sense of shock.
The facts may be garnered from the statement made by
appellant. There were, as has been stated, originally four accused.
It seems that appellant and his three co-accused were approached
by a person identified as Shaun Mason, obviously the principal
wrongdoer in this unhappy affair, to procure by a robbery a BMW 325
motorcar of a specific colour and year in return for a cash
payment
of R3000. Mason had already (by what means is unknown) located a
vehicle which met his requirements. He instructed
the four accused
as to where this vehicle could be found. He provided them not only
with the registration number of the vehicle
but also with the name
and address of the owner, a Mrs Marion Moore, wife of the deceased
in the murder charge, her husband Mr
Alfred George Moore, at the
time a seventy two year old man. All four accused, who are
relatively young men, fell in with the
plan seemingly without any
misgivings or qualms. This is a frightening indication of the state
of affairs presently obtaining
in this country.
The appellant and his co-accused gathered on the date
of the commission of the offences and proceeded to execute their
commission.
Appellant provided a vehicle in which they could travel
to Mrs Moore’s home and in which they could, as needs might
dictate,
escape if the occasion arose. At least two of the accused
were armed at the time of the attack. At some earlier time the
appellant
himself had been in possession of a firearm but it is not
established on the record that he was in possession of it at the
time
of the attack. He denied that he was. In his Section 112
statement appellant conceded that he foresaw the possibility that in
the course of the robbery the victim or other persons might be shot
and that he had reconciled himself to that possibility.
On their arrival at Mrs Moore’s home the robbers
established that the vehicle was not at that time parked at the
premises.
They therefore circled the surrounding area and as chance
(or mischance) would have it observed the vehicle as it was being
driven away from the local post office by Mrs Moore. They followed
her. When she reached her home she activated the remote control
which opened the garage and she drove into the garage. The accused
parked their vehicle and three of them, including appellant,
entered
the Moores’ garage before the automatic door could close and
accosted her. Her response was to scream and her
screams alerted
the deceased who was elsewhere in the residence. He hastened to her
assistance. There was obviously little
that he could do but he was
in any event given no real opportunity to achieve much because one
of the other assailants (accused
no 1 at the trial), when he himself
was not being attacked or threatened by the deceased, at a short
distance shot him in the
head killing him. Appellant and another of
the assailants thereafter drove away in Mrs Moore’s vehicle.
Appellant was
accommodated in the passenger seat. The getaway
vehicle followed. The BMW was parked at a pre-arranged spot where
it was to
be collected by or for Shaun Mason. Indeed appellant
later assisted in the recovery of the vehicle by Mason. The robbery
and
the killing it is clear were executed with cold blooded
savagery.
A life sentence for a callous, senseless and brutal
murder does not induce a sense of shock. Nor does a sentence of
fifteen
years imprisonment for robbery with aggravating
circumstances. On this leg therefore the appeal cannot succeed.
This leaves
the question of whether the learned judge overemphasised
the interests over the community. The corollary of that proposition
would be that he paid too little attention to the appellant’s
personal circumstances. The appellant is a 25 year old man,
unmarried but the father of a ten month old child whom he does not
maintain. What is also important is that appellant is a matriculant
and to that degree more fortunate than many other persons in the
labour market, however difficult it may be at the present time.
He
had a clean record but this again suggests that he had every reason
to keep it so. I recite these facts merely for completeness
sake.
It is clear from the learned judge’s judgment on sentence that
he was aware of all these facts and properly took
them into account.
He also had before him evidence of the appalling incidence of this
type of offence in, particularly, the
Gauteng region. Given that
high incidence of crime and the shocking facts of this case, I am by
no means satisfied that he weighed
the various factors to be taken
into account in relation to sentence incorrectly. Quite apart from
the consideration that the
trial court is in the best position to
assess the appropriate sentence, I believe that on the facts, the
learned judge did not
misdirect himself in any respect. Subject to
a final consideration with which I will now deal, the appeal could
not succeed.
The final issue is the direction that the sentences
are to be cumulative. It would seem to me that the learned judge’s
attention could not have been directed to the provisions of s
32(2)(a) of the Correctional Services Act no 8 of 1959. This
provides that separate sentences are, unless the court otherwise
directs, to be served successively. There is however a proviso
in
the following terms:
“
Provided -
(a) that any determinate sentence of imprisonment to be
served by any person shall run concurrently with a life sentence or
with
an indeterminate sentence of imprisonment to be served by such
person in consequence of being declared an habitual criminal or
dangerous criminal.”
It follows that the learned judge’s direction to
the contrary had to be deleted. The Court’s order was
therefore
one dismissing the appeal but correcting the sentence so
as to bring it into compliance with the Act.
PLEWMAN JA
Concur:
Grosskopf
JA)
Farlam
AJA)