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[2018] ZASCA 121
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Bhola and Others v S (800/18; 123/18; 346/18) [2018] ZASCA 121 (21 September 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 800/18; 123/18; 346/18
In
the matter between:
AUBREY THAMSANQA
BHOLA FIRST
APPELLANT
NKOSINGIPHILE PATRICK
MNTHUNGWA SECOND
APPELLANT
LAZARUS
KHOZA THIRD
APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Bhola
& others v The State
(800/18;
123/2018; and 346/18)
[2018] ZASCA 121
(21 September 2018)
Coram:
Shongwe
ADP, Majiedt, Van der Merwe, Molemela and Makgoka JJA
Heard:
24
August 2018
Delivered:
21
September 2018
Summary:
Criminal
Procedure
:
sentence:
offence of attempted robbery with aggravating circumstances falls
within sentencing regime specified in
Criminal Law Amendment Act 105
of 1997
: trial court’s application of provisions of
Criminal
Law Amendment Act 105 of 1997
to attempted robbery with aggravating
circumstances constitutes a misdirection: sentence imposed by trial
court set aside: sentencing
determined afresh.
ORDER
On
appeal from:
Gauteng
Division, Pretoria (De Vos and Basson JJ concurring sitting as court
of appeal.)
1 The appeal is upheld.
2 The order of the high
court is set aside and substituted with the following:
‘
(a)
The sentences imposed by the trial court on the appellants are set
aside and replaced with the following:
Accused
no 1 (Mr Bhola): 13 years’ imprisonment.
Accused
no 2 (Mr Mnthungwa): 8 years’
imprisonment.
Accused
no 3 (Mr Khoza): 8 years’ imprisonment.
(b)
The sentences are antedated to 7 April 2014’.
JUDGMENT
Molemela
JA (Shongwe ADP, Majiedt, Van der Merwe and Makgoka JJA concurring)
[1]
In the late afternoon of 25 February 2013, three male persons entered
a jewellery store in Piet Retief. Their attempt at carrying
out an
armed robbery there was thwarted when the wife of the store owner
pressed the panic button of the alarm system, thereby
activating the
siren. Upon hearing the sound of the alarm, the three perpetrators
fled the jewellery store empty-handed. The circulation
of the details
of their vehicle to the police led to their arrest the next day. The
arrested suspects were later identified as
Mr Bhola, Mr Mnthungwa and
Mr Khoza, respectively (the appellants). They appeared before the
regional court, Piet Retief (the trial
court) on one count of
attempted robbery with aggravating circumstances. They were all
convicted as charged. The trial court found
that the offence of
attempted robbery with aggravating circumstances attracted a minimum
sentence within the ambit of s 51(2) of
the Criminal Law Amendment
Act 105 of 1997 (the Minimum Sentences Act). Having found no
substantial and compelling circumstances
justifying deviation from
the applicable minimum sentences, it sentenced Mr Mnthungwa and Mr
Khoza to 15 years’ imprisonment.
It found that Mr Bhola’s
previous convictions warranted a harsher sentence and thus sentenced
him to 20 years’ imprisonment.
[2]
Aggrieved by the decision, the appellants applied to the trial court
for leave to appeal against their convictions and sentences,
but they
were unsuccessful. They subsequently petitioned the Gauteng Division
of the High Court, Pretoria (High Court), which granted
them leave to
appeal against their sentences only. Their appeal against their
sentences served before De Vos and Basson JJ (the
court a quo) and
was dismissed. Upon consideration of their appeal against their
sentences, the court a quo, labouring under the
same impression as
the trial court that attempted robbery with aggravating circumstances
attracted mandatory minimum sentences
stipulated in the Minimum
Sentences Act, dismissed their appeal on the basis that there were no
substantial and compelling circumstances
warranting deviation from
the applicable minimum sentences. Following the court a quo’s
dismissal of the appeal, Mr Mnthungwa
directed an application for
special leave to appeal to this Court. On 26 April 2017 this Court
granted Mr Mnthungwa special leave
to appeal limited to, first, the
consideration whether the 15 years’ imprisonment sentence which
the trial court had purportedly
imposed as a prescribed minimum
sentence contemplated in s 51(2) of the Minimum Sentences Act was
correctly imposed in law for
the offence of attempted robbery and,
second, to the determination whether the sentences imposed were
appropriate.
[3]
The granting of special leave to Mr Mnthungwa was subsequently
brought to the attention of Mr Bhola and Mr Khoza, which prompted
them to also apply for special leave against their sentences. Their
application for condonation for the late filing of the application
for special leave to appeal was successful. They, too, were granted
leave to appeal against their respective sentences on the same
limited basis alluded to above. The three matters were heard
simultaneously. At the commencement of the appeal hearing, Mr
Mnthungwa’s
delay in filing the notice of appeal and the record
was condoned. For the sake of convenience, Mr Bhola will be referred
to as
the first appellant, while Mr Mnthungwa and Mr Khoza will be
referred to as the second and third appellants, respectively.
[4]
The salient common cause background facts are set out hereunder. The
evidence adduced by the state witnesses during the trial
showed that
in attempting to rob the jewellery store, the three appellants seemed
to have been acting in concert with a fourth
person, an unidentified
woman who was never arrested and prosecuted. According to the state
witnesses, the woman in question entered
the complainant’s
premises immediately before the attempted robbery occurred and
requested a new battery for her wrist watch.
After the battery had
been inserted, she paid but did not leave the store. The second and
third appellants then entered the store.
The second appellant
loitered around the store while the third appellant requested to be
allowed to look at various rings. While
the owner’s wife was
assisting the third appellant with the fitting of different rings,
the first appellant entered the shop.
Shortly thereafter, the first
appellant suddenly took out a firearm, cocked it and pointed it at
the complainants. He then instructed
everyone in the store to quietly
move towards the back section of the store and threatened to shoot
those who would not co-operate.
The third appellant also pulled out a
firearm, brandished it and repeatedly stated that they (the
appellants) wanted money. In
the intervening period, the second
appellant immediately moved towards the door and tried to close it.
At some stage, the unidentified
woman who had shown interest in watch
batteries was seen fiddling behind the counter. As the complainants
were moving backwards
in compliance with the first appellant’s
instructions, the wife of the store-owner managed to activate the
alarm by pressing
the panic button. At the sound of the alarm, the
first appellant shouted that he was going to kill the complainants.
He, however,
hurriedly fled the scene together with his
co-perpetrators. The next morning, the three appellants were arrested
by the police
at a nearby filling station. They subsequently appeared
before the trial court and were charged with attempted robbery with
aggravating
circumstances. They all pleaded not guilty.
[5]
The first appellant conducted his own defence, while the second and
third appellants were legally represented. Their version
amounted to
a denial of all the allegations against them. The trial court found
that the state witnesses had positively identified
the three
appellants as the perpetrators of the attempted robbery with
aggravating circumstances and thus convicted them.
[6]
The key issue is whether the offence of attempted robbery with
aggravating circumstances attracts a minimum sentence. The starting
point should be the specific provision relied upon by the trial
court, namely section 51(2) of the Minimum Sentences Act. Section
51(2) of that Act provides:
‘
Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a 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 not less than 20 years; and
(iii) a third or subsequent offender
of any such offence, to imprisonment for a period not less than 25
years.
. . . ’. (My emphasis.)
[7]
The language used in the section is clear and unambiguous. The
ordinary grammatical meaning of the words used in the aforesaid
text
leaves one with a clear impression that only the offences that are
‘referred to’ in Part II of Schedule 2 attract
the
specified mandatory sentences. The plain language used in that
provision is not capable of any other interpretation. A perusal
of
Part II of Schedule 2 reveals that, whereas the offence of robbery
with aggravating circumstances is included in the list of
the
offences specified in that part of Schedule 2, attempted robbery with
aggravating circumstances is not. The only reference
to attempted
robbery with aggravating circumstances in the Minimum Sentences Act
is found in Part I of Schedule 2 in relation to
a murder that was
committed during an attempted robbery, which indicates that it was
not intended to include attempted robbery
with aggravating
circumstances in Part II thereof. The omission of a failed attempt to
commit offences from the provisions of the
Minimum Sentences Act has
been subjected to judicial scrutiny in a number of High Court
decisions. This Court in
S
v Nkosi & another
[1]
acknowledged
that ‘there is no specific provision for the offence of
attempted robbery’ in the Minimum Sentence Act
[2]
.
It follows that the state’s concession that the provisions of s
51(2) of the Minimum Sentences Act are not applicable to
the offence
of attempted robbery with aggravating circumstances was correctly
made. Insofar as the trial court approached the sentencing
of the
appellants on the basis that minimum sentences were statutorily
prescribed by the Minimum Sentences Act in respect of the
offence of
attempted robbery with aggravated circumstances, it materially
misdirected itself in relation to the applicable legal
prescripts. It
follows that the only issue remaining for this court’s
determination is whether the sentences imposed by the
trial court
were appropriate.
[8]
The State counsel contended that notwithstanding the trial court’s
misdirection on the applicable legal prescripts, the
sentences it had
imposed on all the appellants remained appropriate, given the
seriousness of the offence they had been convicted
of. As authority
for this view the State relied on the following remarks made in
Nkosi
:
‘
Section 51(1) read with Part I
of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
prescribes a minimum sentence of 15 years imprisonment, which was
imposed here, for the completed offence of robbery but makes
no
specific provision for attempted robbery of which the second
appellant was convicted on count 2. In my opinion, there
is little
in
the circumstances of this case
to distinguish between a completed robbery and the heinous foiled
robbery by the second appellant, who runs a seemingly decent
paving
business, and his associates, which involved the use of heavy
artillery and gratuitous violence with no regard for the safety
of
innocent civilians or police. The offence of robbery was all but
completed and it is a miracle that Humphries survived and more
people
were not maimed or killed. The offences committed in this case count
among the most violent and, unfortunately prevalent
in this country.
The harshest form of punishment is undoubtedly warranted.’ (My
emphasis.)
[9]
Counsel for the appellants, in pleading for more lenient sentences,
contended that a lesser punishment is usually imposed for
an attempt
than for the completed offence.
[3]
I do not regard the aforesaid
dictum
in
Nkosi
to constitute a departure from that trite principle. Rather, that
dictum
makes it plain that in circumstances where an attempt to commit a
particular offence is not specified in the Minimum Sentences
Act but
the completed offence is, nothing precludes a court convicting an
offender of the failed attempt from, within its sentencing
discretion
and in appropriate circumstances, imposing the same sentence such
court would have been entitled to impose in respect
of the specified
completed offence.
[10]
With specific reference to the first appellant, on whom the trial
court imposed a sentence of 20 years’ imprisonment,
the state
counsel initially contended that the aforesaid sentence ought not to
be tampered with, as a harsher sentence was justified
by his previous
convictions. Following debate with members of the bench, the state
counsel ultimately conceded that the basis for
the trial court’s
imposition of a sentence in excess of the Regional Court’s
penal jurisdiction of 15 years’
imprisonment
[4]
was an erroneous belief that the provisions of the Minimum Sentences
Act gave it an increased penal jurisdiction. It follows
a
fortiori
that such a sentence can no longer be sustainable once it is found
that the provisions of the Minimum Sentences Act are not applicable.
Given my earlier finding that the provisions of the Minimum Sentences
Act are indeed not applicable to the offence of attempted
robbery
with aggravating circumstances, it follows that the 20 years’
imprisonment sentence imposed on the first appellant
does not pass
muster as it is in excess of the Regional Court’s penal
jurisdiction.
[11]
Turning to the circumstances of this matter, although the brazen
wielding of firearms was accompanied by threats of violence,
none of
the persons inside the jewellery store and the onlookers were
physically harmed during the attempted robbery or during
the
appellants’ escape. I am of the view that the circumstances of
this case vary markedly from those delineated in
Nkosi
,
where the offence committed was a heist and, despite being a failed
attempt, was coupled with extreme aggravation, including commission
of further offences involving gratuitous violence brazenly aimed at
the police. Consequently, I am of the view that the sentence
imposed
by the trial court on the appellants is totally disproportionate to
the gravity of the offence they have been convicted
of. It is clear
that the trial court’s sentencing discretion was not judicially
exercised.
[5]
Where a material misdirection by the trial court has vitiated its
exercise of the sentencing discretion, an appellate court is
at large
to consider the question of sentence afresh
.
I
turn now to consider the appropriate sentence.
[12]
It is a trite principle of our law that punishment must fit the
criminal, the crime and the interests of society. Although
the
appellants were in essence convicted of a failed attempt, aggravating
factors are extant. The appellants attempted to rob a
jewellery store
in broad daylight. Not only were firearms brandished during the
attempted robbery, it was made clear that the complainants
would
actually be shot if they did not co-operate. The store-owner suffered
psychological trauma as a result of the incident and
had to undergo
therapy. All these aspects highlight the gravity of the offence the
appellants were convicted of. The prevalence
of offences involving
the use of firearms has caused a lot of consternation in our
communities countrywide. Courts must take the
interests of society
into account and, through the sentences they impose, assure the
communities that even a mere attempt to commit
a robbery with
aggravating circumstances will not be tolerated.
[13]
The next consideration in the triad of sentence is the appellants’
personal circumstances. The mitigating factors presented
on behalf of
the appellants are as follows. The first appellant is married. As at
the time of his arrest, he had three adult children
who were
financially dependent on him. He used to work as a builder, earning
R250-00 per day. He spent just over a year in custody
pending
finalisation of his trial, as did the second appellant who is a first
offender. He was 27 years old at the time of the
commission of the
offence. He passed grade 12 at school and worked as a builder for
R150-00 per day. He is married, with three
minor children aged 8, 5
and 1 years, respectively. He was the sole breadwinner in the family.
His motor vehicle was sold in order
to pay for his legal fees at the
trial. It was submitted that he had, therefore, already suffered some
consequences from his actions.
The third appellant is a first
offender. He was 47 years old at the time of commission of the
offence. He is not married but lived
with the mother of his three
children, the youngest of whom was approximately 4 years of age at
the time of sentencing. He used
to work as a builder and earned
R300-00 per day. He, too, spent just over a year in custody pending
finalisation of his trial.
[14]
The appellants’ criminal record is another important
consideration when determining an appropriate sentence, for it serves
as a good indicator of an offender’s ability to be
rehabilitated. Whereas the second and third appellants are first
offenders,
the first appellant has four relevant previous
convictions, namely two counts of murder, robbery, attempted murder
and the possession
of a firearm and ammunition. The trial court also
pointed out that one of the offences reflected in the first
appellant’s
record of offences was committed while he was on
parole. His criminal record is a serious aggravating factor which, as
correctly
pointed out by the court a quo, puts the first appellant on
a different footing than that of his co-perpetrators. His previous
incarceration for serious offences has clearly failed to rehabilitate
him. This calls for a harsher sentence to be imposed on him.
[15]
Although the appellants’ counsel contended that a more lenient
sentence ought to be imposed on the second appellant as
he was not
armed during the incident, was significantly younger than the other
two appellants and played a lesser role in the commission
of the
offence, the evidence paints a different picture. The conspectus of
the evidence depicts three persons acting with a common
purpose and
playing different but equally important, carefully planned roles. The
second appellant strategically loitered around
the shop while the
third appellant was pretending to be interested in buying a ring. As
soon as the first appellant started brandishing
the firearm, the
second appellant immediately attempted to close the door. Indeed, as
correctly argued by the state counsel, the
ineluctable inference from
all the evidence is that the large backpack that the second appellant
was carrying was intended for
the loot in the event of a successful
robbery which, unfortunately for the appellants, did not materialise.
It was also not disputed
that he is the one who conveyed the two
other appellants to the complex where the jewellery store was
situated in his vehicle.
The same car was later used as a getaway
vehicle. On the whole, the second appellant played a crucial role in
the foiled attempt
to commit robbery with aggravating circumstances.
His counsel’s contention that his actions were influenced by
his older
co-perpetrators is not borne out by the record. The age
difference between him and his co-perpetrators is therefore a neutral
factor.
I can find no reason why his sentence must be more lenient.
As for the first appellant, he is a recidivist and deserves a harsher
sentence than the second and third appellants. In arriving at the
appropriate sentence, it has been taken into account that all
the
appellants spent one year in custody while awaiting finalisation of
their trial.
[16]
For all the reasons outlined above, the following order is made:
1 The appeal is upheld.
2 The order of the high
court is set aside and substituted with the following:
‘
(a)
The sentences imposed by the trial court on the appellants are set
aside and replaced with the following:
Accused
no 1 (Mr Bhola): 13 years’ imprisonment.
Accused
no 2 (Mr Mnthungwa): 8 years’
imprisonment.
Accused
no 3 (Mr Khoza): 8 years’ imprisonment.
(b)
The sentences are antedated to 7 April 2014’.
___________________
M
B Molemela
Judge
of Appeal
Attorney
for the appellants: H L Alberts
Instructed
by: Pretoria Justice Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
Counsel
for the respondent: M J Makgwatha (Ms)
Instructed
by: Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
S v Nkosi &
another
[2011]
ZASCA 83
;
2011 (2) SACR 482
(SCA) at para 36.
[2]
This acknowledgment is obviously in
line with the approach of those judgments that found that the
application of the minimum sentencing
regime to offences not
included in Schedule 2 to the Minimum Sentences Act was simply
incorrect.
See S v Louw
2007 (1) SACR 539
(NC) at
para 7;
S v Qwabe
2012
(1) SACR 347 (WCC).
[3]
C R Snyman
Criminal
Law
6 ed (2014) at 294.
[4]
Section 92(1)
(a)
of the Magistrates Court
Act, Act 32 of 1944.
[5]
S v Salzwedel
1999
(2) SACR 586
(SCA) at 591F-G.