About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2013
>>
[2013] ZAWCHC 179
|
|
Fortune v S (A(R) 48/13) [2013] ZAWCHC 179; 2014 (2) SACR 178 (WCC) (22 November 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no.A(R) 48/13
In the matter between:
GANIEF FORTUNE
..............................................................................................
Appellant
And
THE STATE
...............................................................................................
Respondent
Coram
: BINNS-WARD J
et
MANCA AJ
JUDGMENT DATED 22 NOVEMBER 2013
BINNS-WARD J:
The appellant was convicted of robbery with aggravating
circumstances. The trial court found that there were no substantial
and compelling circumstances to justify a departure from the minimum
sentence of 15 years’ imprisonment prescribed for the
offence
in terms of the
Criminal Law Amendment Act 105 of 1997
and
therefore, as it was then bound to do, imposed the prescribed
sentence. The appellant has come to this court on appeal against
the
sentence imposed on him. The appeal was brought with leave given by
the trial court. In his judgment granting leave to appeal
the
magistrate remarked on what he described as ‘
certain trends
that have emerged, more specifically
[in]
the Western Cape
High Court, where a number of people who have been convicted of the
same type of offence and the same type of
sentences having
[been]
imposed have had their sentences reduced by the High Court
’.
The magistrate expressed the hope that this matter would afford the
opportunity for this court to ‘
provide some guidance with
regard to how
[it]
sees the question of substantial and
compelling circumstances
’. The magistrate appears to have
considered that he and his colleagues in the Regional Court would
benefit from the provision
of ‘
a far greater degree of
legal clarity
’ in this regard.
The perception that there is a need for greater clarity on the
proper approach to sentencing in matters subject to the prescribed
sentencing regime under Act 105 of 1997 is unfortunate, but perhaps
not so surprising because, as will be apparent from references
to
some Supreme Court of Appeal judgments to be mentioned later,
disparities in the application of the legislation have been
noted.
The applicable principles were clearly stated in
the seminal judgment in
S v Malgas
2001
(2) SA 1222
(SCA).
1
That statement of principle received the affirmation of the
Constitutional Court in
S v Dodo
2001
(3) 382 (CC). In
Dodo
,
at para 40, the Constitutional Court endorsed the statement in
Malgas
that
‘
If the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs
of society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence
’
.
The
principles described in
Malgas
are so well established in our criminal law jurisprudence that it
would be a supererogation to rehearse them. In
Director
of Public Prosecutions, KwaZulu-Natal v Ngcobo and others
2009
(2) SACR 361
(SCA), atpara 12,
they
were referred to as ‘
enduring and
uncomplicated
’
.
The difficulty has lain in their
application. What appear to be incommensurate sentences are in many
cases explicable by the realities
that no one case is exactly like
another, and the applicable principles, although they contain a
recognition that the legislation
enjoins standardised rigour and
severity, nevertheless emphasise that the statutory provisions do
not derogate from the duty
on sentencing courts in prescribed
sentence matters to have appropriate regard to the individual
characteristics of each case.
Indeed it is the latitude allowed to
courts by the legislation to depart from the prescribed minimum
sentences in appropriate
cases that resulted in it passing
constitutional muster.
However, rather as used to be the case in the dark days of mandatory
death penalties, the individualisation of the sentencing
process in
matters in which the prescribed minimum sentences apply does result
to some extent in the sentences imposed reflecting
the individual
attitudes of judicial officers towards the legislative dispensation.
The impression that some judicial officers
have been inclined to
discount the effect of the minimum sentence legislation in the
sentences they impose in matters in which
the legislative scheme is
applicable is impossible to ignore. The tendency has been remarked
upon and deprecated in judgments
of the Supreme Court of Appeal
(‘SCA’); see, for example,
S v Matyityi
2011
(1) SACR 40
(SCA),
[2010] 2 All SA 424
, in which it was remarked that
‘
one notices all too frequently a
willingness on the part of sentencing courts to deviate from the
minimum sentences prescribed
by the legislature for the flimsiest of
reasons
’
;
and the very
recently delivered decision in
S v Nkunkumaand others
[2013]
ZASCA 122
(23 September 2013).
In
Matyityi
the appeal court held ‘
As Malgas
makes plain courts have a duty, despite any personal doubts about
the efficacy of the policy or personal aversion to
it, to implement
those sentences. Our courts derive their power from the Constitution
and like other arms of state owe their
fealty to it. Our
constitutional order can hardly survive if courts fail to properly
patrol the boundaries of their own power
by showing due deference to
the legitimate domains of power of the other arms of state. Here
parliament has spoken. It has ordained
minimum sentences for certain
specified offences. Courts are obliged to impose those sentences
unless there are truly convincing
reasons for departing from them.
Courts are not free to subvert the will of the legislature by resort
to vague, ill-defined concepts
such as ‘relative youthfulness’
or other equally vague and ill-founded hypotheses that appear to fit
the particular
sentencing officer’s personal notion of
fairness. Predictable outcomes, not outcomes based on the whim of an
individual
judicial officer, is foundational to the rule of law
which lies at the heart of our constitutional order
’
.
2
In
S v
Kwanape
[2012]
ZASCA 168
, at para 15, the SCA reiterated that ‘
courts
are duty-bound to implement the sentences prescribed in terms of the
Act and that ‘ill-defined concepts such as relative
youthfulness or other equally vague and ill-founded hypotheses that
appear to fit the particular sentencing officer’s personal
notion of fairness’ ought to be eschewed
’
.
These sentiments echo what was said concerning the finding of
‘substantial and compelling circumstances’ in
Malgas
at para 9: ‘
The
specified sentences were not to be departed from lightly and for
flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offender, maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy
of
the policy implicit in the amending legislation, and like
considerations were equally obviously not intended to qualify as
substantial and compelling circumstances. Nor were marginal
differences in the personal circumstances or degrees of
participation
of co-offenders which, but for the provisions, might
have justified differentiating between them.
’
That notwithstanding, there is a manifest
tension between the concept of ‘predictable outcomes’ or
‘standardisation’
of sentences and the notion, also
confirmed in the
Malgas
principles, that a just sentence depends
on the individual characteristics of each case and that even in
prescribed sentence cases
there should not be an
à
priori
disposition in favour of the
appropriateness of the prescribed minimum sentence. In the result
the application of the minimum
sentence legislation is unavoidably
going to be affected to a greater or lesser degree by judicial
nuance.
The duty to apply the legislation in a
constitutionally compatible manner entails that that the
aforementioned inherent tension
must be resolved with especial
regard to the peculiarly individual features of every case. Those
features have to be assessed
in the context of the applicable
legislation.
3
Judgments such as those in
Matyityi
and
Nkunkuma
supra, fall to be understood as bearing
critically on the failure of the trial courts in question to
adequately acknowledge the
contextual role of the legislation in
their formulation of the sentences imposed and the flimsiness in the
peculiar factual context
of the cases of the bases asserted for
departing from the precepts of the legislation.
The prescribed sentencing regime does not exclude
consideration of the factors ordinarily taken into account for the
purposes
of sentencing. They are factors that a court must weigh in
determining whether circumstances do exist that justify a deviation
from the applicable prescribed sentence. As Marais JA noted in
Malgas
,
at para 9,
‘…
I can
see no warrant for deducing that the legislature intended a court to
exclude from consideration,
ante
omnia
as it were, any or all of
the many factors traditionally and rightly taken into account by
courts when sentencing offenders
’
.
Read in context, however, that remark did not purport to suggest
that the prescribed sentence should not be imposed unless there
are
weighty considerations justifying a departure from it in the
peculiar circumstances of a given case.
What might constitute weighty considerations? The
answer to the question enjoyed consideration in the compelling
analysis of the
application of the minimum sentence provisions
provided in the SCA’s judgment in
S
v Vilakazi
[2008] ZASCA 87
;
[2008] 4 All SA 396
(SCA);
2009 (1) SACR 552
;
2012 (6) SA 353.
The judgment notes the bluntness
of the statutory provisions read at face value and stresses that it
was only their application
using the so-called ‘determinative
test’ identified in
Malgas
that
saved them from unconstitutionality. In view of the concern
expressed by the judicial officer in the court below for a need
for
guidance it would perhaps be useful to quote the pertinent part of
the judgment in
Vilakaziin extenso
(footnotes omitted and emphasis in the original;
the underlining is mine):
[13] ….
It is not surprising that the
leading writer on the subject of sentencing in this country,
Professor Terblanche, advanced the following
acerbic observation on
the Act ten years after it took effect:
‘
I have criticised the Act
elsewhere and, if anything, have become more critical with time.
There is hardly a provision in sections
51 to 53 that is without
problems. The number of absurdities that have been identified and
which will no doubt be identified in
future is simply astounding. The
Act’s lack of sophistication disappoints from beginning to end.
There are too many examples
of disproportionality between the various
offences and the prescribed sentences.’
[14] It is only by approaching
sentencing under the Act in the manner that was laid down by this
court in
S v Malgas
– which was said by the
Constitutional Court in
S v Dodo
to be ‘undoubtedly
correct’ – that incongruous and disproportionate
sentences are capable of being avoided. Indeed,
that was the basis
upon which the Constitutional Court in
Dodo
found the Act to
be not unconstitutional. For by avoiding sentences that are
disproportionate a court necessarily safeguards against
the risk –
and in my view it is a real risk – that sentences will be
imposed in some case that are so disproportionate
as to be
unconstitutional. In that case the Constitutional Court said that the
approach laid down in
Malgas
, and in particular its
‘determinative test’ for deciding whether a prescribed
sentence may be departed from,
‘
makes plain that the power
of a court to impose a lesser sentence … can be exercised well
before the disproportionality between
the mandated sentence and the
nature of the offence becomes so great that it can be typified as
gross’ [and thus constitutionally
offensive].
That ‘determinative test’
for when the prescribed sentence may be departed from was expressed
as follows in
Malgas
and it deserves to be emphasised:
‘
If the sentencing court
on consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.’
[15] It is clear from the terms in
which the test was framed in
Malgas
and endorsed in
Dodo
that it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all
the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence. The
Constitutional
Court made it clear that what is meant by the ‘offence’
in that context (and that is the sense in which
I will use the term
throughout this judgment unless the context indicates otherwise)
‘
consists of all factors
relevant to the nature and seriousness of the criminal act itself, as
well as all relevant personal and
other circumstances relating to the
offender which could have a bearing on the seriousness of the offence
and the culpability of
the offender.’
If a court is indeed satisfied
that a lesser sentence is called for in a particular case, thus
justifying a departure from the prescribed
sentence, then it hardly
needs saying that the court is bound to impose that lesser sentence.
That was also made clear in
Malgas,
which said that the
relevant provision in the Act
‘
vests the sentencing court
with the power, indeed the obligation, to consider whether the
particular circumstances of the case require
a different sentence to
be imposed. And a different sentence must be imposed if the court is
satisfied that substantial and compelling
circumstances exist which
‘
justify’…
it’.
[16] It was submitted before us
that in
Malgas
this court ‘repeatedly emphasised’
that the prescribed sentences must be imposed as the norm and are to
be departed
from only as an exception. That is not what was said in
Malgas.
The submission was founded upon words selected from
the judgment and advanced out of their context. The court did not
say, for
example, as it was submitted that it did, that the
prescribed sentences ‘should ordinarily be imposed’. What
it said
is that a court must approach the matter ‘
conscious
of the fact that the Legislature has ordained
[the prescribed
sentence] as the sentence which should
ordinarily
and in the
absence of weighty justification
be imposed for the listed crimes
in the specified circumstances’ (the emphasis in bold is mine).
In the context of the judgment
as a whole, and in particular the
‘determinative test’ that I referred to earlier, it is
clear that the effect of those
qualifications
is that any
circumstances that would render the prescribed sentence
disproportionate to the offence would constitute the requisite
‘weighty justification’ for the imposition of a lesser
sentence
.
[17] ….. To say that a
court must regard the [prescribed] sentence as being proportionate
à
priori
and apply it other than in an exceptional case runs
altogether counter to both
Malgas
and
Dodo
. Far from
saying that the circumstances in which a court may (and should)
depart from a prescribed sentence will arise only as
an exception
Malgas
said:
‘
Equally erroneous…are
dicta
which suggest
that for circumstances to qualify as substantial and compelling they
must be ‘exceptional’ in the sense
of seldom encountered
or rare. The frequency or infrequency of the existence of a set of
circumstances is logically irrelevant
to the question of whether or
not they are substantial and compelling.’
[18] It is plain from the
determinative test laid down by
Malgas
, consistent with what
was said throughout the judgment, and consistent with what was said
by the Constitutional Court in
Dodo
, that a prescribed
sentence cannot be assumed
à priori
to be proportionate
in a particular case. It cannot even be assumed
à priori
that the sentence is constitutionally permitted. Whether the
prescribed sentence is indeed proportionate, and thus capable of
being imposed, is a matter to be determined upon a consideration of
the circumstances of the particular case. It ought to be apparent
that when the matter is approached in that way it might turn out that
the prescribed sentence is seldom imposed in cases that fall
within
the specified category. If that occurs it will be because the
prescribed sentence is seldom proportionate to the offence.
For the
essence of
Malgas
and of
Dodo
is that disproportionate
sentences are not to be imposed and that courts are not vehicles for
injustice.
[19] In a variation upon the
earlier submission it was also submitted that the prescribed sentence
must be imposed in ‘typical’
cases and may be departed
from only where the case is atypical. We were not told what
constitutes a ‘typical’ case
nor how such a case is to be
identified. All that is typical of cases that fall within a specified
category is that they have the
characteristics of that category. But
for that, no case can be said to be ‘typical’. The
submission finds no support
in
Malgas
or in logic and it has
no merit.
[20] …..I have pointed out
that the essence of the decisions in
Malgas
and in
Dodo
is that a court is not compelled to perpetrate injustice by imposing
a sentence that is disproportionate to the particular offence.
Whether a sentence is proportionate cannot be determined in the
abstract, but only upon a consideration of all material circumstances
of the particular case, though bearing in mind what the legislature
has ordained and the other strictures referred to in
Malgas
.
It was also pointed out in
Malgas
that a prescribed sentence
need not be ‘shockingly unjust’ before it is departed
from for ‘one does not calibrate
injustices in a court of law’.
It is enough for the sentence to be departed from that it would be
unjust to impose it.
The aforegoing thumbnail review of the pertinent
jurisprudence of the top-tier courts affirmsmy view that the
constitutionally
compatible administration of the minimum sentence
legislation is reliant on judicial nuance. That is hardly desirable,
as indeed
certain passages in
Vilikazi
clearly imply. It is a position that is bound in
practice to result in approaches to sentence that are difficult to
reconcile
and appear to be discordant.
4
This is indeed the very problem that probably has
given rise to the court a quo’s plea for the provision of
‘greater
legal clarity’. It seems to me that the nature
of the question defies a more finite answer than that already
afforded in
the judgments in
Malgas
,
Dodo
and
Vilakazi
.
What is clear though is that the criminal law courts have the duty
to approach sentence treating each case on its individual
merits and
mindful of the need to apply the minimum sentence legislation in a
manner that does not result in punishment that
is disproportionate
having regard to the peculiar circumstances of the commission of the
offence and the personal circumstances
of the offender.Punishment
that is disproportionately severe infringes the convicted person’s
right in terms of s 12(1)(e)
of the Constitution not to be
punished in a cruel, inhuman or degrading way. The provisions of the
prescribed minimum sentence
legislation fall to be applied in a
manner that avoids an infringement of the convicted person’s
basic rights in terms
of s 12 of the Bill of Rights.
So much for the principles that the court below was required to
apply when determining sentence in the current matter. It is
time to
consider whether the appellant has shown a material misdirection by
the sentencing court in their application.
In prescribing a minimum sentence of 15 years for
robbery when there are aggravating circumstances the legislature
drew no distinction
between robbery in which a firearm was used and
robbery in which a knife was wielded to threaten the victim, or
between cases
in which physical assault was actually perpetrated or
merely threatened. Act 105 of 1997 implicitly adopted the definition
of
‘aggravating circumstances’ in
s 1
of the
Criminal Procedure Act 51 of 1977
,
5
which reads as follows:
“
aggravating circumstances”,
in
relation to—
(
a
)
. . . . . .
(
b
) robbery or attempted robbery, means—
(i) the wielding of a fire-arm or any other dangerous
weapon;
(ii) the infliction of grievous bodily harm; or
(iii) a threat to inflict grievous bodily harm,
by the offender or an accomplice on the occasion when
the offence is committed, whether before or during or after the
commission
of the offence
Regard to the principles rehearsed above, however, makes it clear
that it is appropriate for a sentencing court nevertheless to have
regard to the gradations in the manifestations of the listed offence
in determining an appropriate sentence. The fact that the
complainant
was threatened rather than physically assaulted and injured is a
relevant factor to be taken into account along with
all the other
factors that should be weighed in determining whether a departure
from the prescribed sentence is warranted.
In the current case the appellant threatened the complainant with a
knife on a street on the edge of Cape Town’s central
business
district in broad daylight, and by these means was able to wrest
from her and steal the handbag that she had been carrying.
He had
initially pretended to approach her for the purpose of asking for a
match to light a cigarette. His conduct qualified
as a robbery with
aggravating circumstances on two bases; it involved the wielding of
a dangerous weapon and the tacit threat
to inflict grievous bodily
harm. Quite apart from the matter of technical definition, there can
be no doubting the seriousness
of the offence and the expectation by
the community that the courts should reflect an appreciation of this
in the type of sentence
imposed. That said, the weapon was not used
in a way that caused the complainant any physical injury. The
offence was at the
lower end of the scale of instances of robbery
with aggravating circumstances. This should have been taken into
account in assessment
of a proportionate sentence.
6
It does not appear to have been. Instead, the magistrate would
appear to have adopted the ‘typical case’ approach
discussed and discredited at para 19 of
Vilakazi
, supra.
This constituted a material misdirection.
Having identified a material misdirection by the magistrate, it
falls to this court to consider sentence afresh.
The appellant was three days short of 30 years of age when the
offence was committed. The information placed before the trial
court
was that he was handyman earning a monthly income of approximately
R4000. He had a drug abuse problem. He has several previous
convictions, including convictions for robbery, malicious injury to
property, housebreaking with intent to steal and theft and
common
theft. The impression is that the appellant has repetitively been
guilty of anti-social and criminal behaviour and has
shown no
amenability to rehabilitation or reform. The magistrate correctly
took into account as aggravating factors the appellant’s
criminal record and the fact that he had no pressing financial need
to tempt him to resort to crime.
The appellant had been incarcerated for nine months before he was
sentenced by the trial court. The fact that a convicted offender
has
spent time in prison awaiting trial or for the duration of his trial
is undoubtedly a relevant consideration in determining
sentence. It
is, however, not a consideration that carries any mechanical effect.
The notion expressed in
S v Brophy
2007 (2) SACR 56
(W) that
time in prison before sentence should count as the equivalent of
double the time of post-sentence incarceration has
been disapproved
by the SCA; see
S v Radebe and another
2013 (2) SACR 165
(SCA), at para 8-15. What the magistrate had to ask himself in
respect of the nine months that the appellant had already spent
in
custody was whether its effect, taken together with the prescribed
minimum sentence, would render a sentence so disproportionate
to the
offence of which the accused had been convicted as to amount in the
context of all the relevant factors to substantial
and compelling
circumstances warranting the imposition a lesser sentence. His point
of reference in this regard would be the
prescribed sentence itself.
The magistrate did not in his sentence judgment deal expressly with
the nine months that the appellant
had spent in custody. He was,
however, clearly cognisant of it because he mentioned it in relation
to accused 1 in the trial,
who had been arrested on the same day as
the appellant. It is evident that the magistrate was not persuaded
that the period that
the appellant had been incarcerated prior to
sentence being imposed was a sufficiently weighty reason,by
itself,in the circumstances
to depart from the prescribed sentence.
I am not persuaded that he was guilty of any misdirection in this
regard. After all,
if time spent in custody were to be mechanically
deducted in any case in which the prescribed minimum sentence was
applicable,
there would hardly be a matter in which the minimum
sentence would actually be imposed. Relative to the 15 year sentence
that
was prescribed, the nine months spent by the appellant in
prison prior to the imposition of sentence was not a sufficiently
weighty
consideration in the context of all the other circumstances
to impel a deviation from the prescribed sentence. The period spent
in custody would, however, fall for further consideration in
determining an appropriate sentence if the trial court were on an
overall consideration of the other relevant factors convinced that a
departure from the prescribed 15 year sentence was appropriate.(Of
course, owing to the misdirection identified earlier, the trial
court could not reach the potential latter stage of enquiry.)
In my judgment, a sentence of 15 years’ imprisonment is
disproportionate in the peculiar circumstances of the commission
of
the offence. A sentence of 15 years’ imprisonment would
unjustly equate the punishment of the offence with that imposed
under the applicable legislation for far more serious instances of
the crime of which the appellant had been convicted. In the
current
case the complainant was not physically injured and the value of the
property stolen (a handbag containing credit/debit
cards, R800 in
cash, a camera and personal documentation and house keys) was
relatively small. There is also the consideration
that the
brazenness of the appellant’s conduct lends support to his
claim to have been disinhibited to some extent by the
use of drugs.
Although this affords no excuse and, because the widespread
occurrence of crime committed under the influenceof
drugs is a
scourge that merits a standardised severe response, it is to an
extent an aggravating feature, it does nonetheless
also pointon a
subjective assessment to reduced moral blameworthiness on the part
of the appellant. These conclusions constitute
sufficiently weighty
reasons in the overall conspectus of the case to find the existence
of substantial and compelling circumstances
to depart from the
prescribed minimum sentence.
Appropriate weight must, however, also be given to the aggravating
features of the case. It must also be remembered that, even
if the
prescribed minimum sentence is not applied, the effect of the
legislation is that it is not ‘business as usual’
and
the sentence actually imposed must thus acknowledge some
relationship to that which the legislature has prescribed. Adopting
that approach, but also being mindful that the appellant had spent
nine months in prison before he was sentenced and that he
eventually
showed a measure of regret or remorse by pleading guilty, I consider
that a sentence of eight years’ imprisonment
would be
appropriate.
In the result –
The appeal against sentence is upheld.
The sentence of 15 (fifteen) years’ imprisonment imposed by
the trial court is set aside.
A substituted sentence of eight (8) years’ imprisonment is
imposed on the appellant.
The substituted sentence of imprisonment is antedated to 20 June
2013 in terms of
s 282
of the
Criminal Procedure Act 51 of
1977
.
A.G. BINNS-WARD
Judge of the High Court
I agree.
B. J. MANCA
Acting Judge of the High Court
1
See
especially the summary at para 25 of the judgment.
2
In
its judgment in
Nkunkuma
supra, the SCA misdirectedly
criticised the trial judge for using the expression ‘
predictable
outcomes
’ with reference to
Matyityi
, stating
inaccurately (at para 10) ‘
The
phrase ‘predictable outcomes’ does not appear in
Matyityi
.’
3
See
Malgas
supra, at para 8.
4
Compare,
for example, the majority and minority judgments in
S v Nkomo
[2007] 3 All SA 596
(SCA); S
v Opperman and Another
2010 (2)
SACR 248
(SCA);
[2010] 4 All SA 267
; and in
S v Monageng
[2009] 1 All SA 237
(SCA)
5
Cf.
S v Dhlamini
2012 (2) SACR 1
(SCA) at para 13.
6
Cf.
e.g.
S v Maselani and Another
2013 (2) SACR 172
(SCA),
especially at para 26-29 and
S v SMM
2013 (2) SACR 292
(SCA).