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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

Case no: A74/2017

Not reportable

Not of interest to other judges

Revised.

In the matter between:

LUNGA MXOLISI                                                                                          First Appellant

DLIWAYO THULANI                                                                                Second Appellant

and

THE STATE                                                                                                       Respondent

ORDER

On appeal from: The Germiston Regional Court Gauteng.

1. The appeals against sentence by the first and second appellants are upheld.

2. The sentence of twenty five years imprisonment imposed on the first appellant on the charge of robbery with aggravating circumstances is set aside and substituted with a period of twenty years imprisonment in terms of the provisions in section 51(2) (a) (ii) of Act 105 of 1997 as amended.

3. The sentence of twenty five years imprisonment imposed on the second appellant on the charge of robbery with aggravating circumstances is set aside and substituted with a sentence of Fifteen years imprisonment in terms of the provisions in section 51(2)(a)(i) of Act 105 of 1997 as amended.

 

JUDGMENT

 

Matthys AJ:

 

INTRODUCTION

[1] On the 15 December 2014, the two appellants[1] together with another[2] were jointly convicted on a charge of robbery with aggravating circumstances in the Regional Court held at Germiston.

[2] Each of the appellants and their co-accused were sentenced to twenty five years imprisonment. Aggrieved by the conviction and the sentences imposed, the two appellants applied for leave to appeal, which applications were dismissed by the trial court on 30 June 2015.

 

Historical Background

[3] On 20 February 2017 on petition, as provided for in terms of section 309C of Act 51 of 1977 leave to appeal against the sentences only were granted in favour of the appellants. Initially this appeal was enrolled for 20 June 2017 but defence counsel informed the court that the appeal was then postponed sine die since the record of proceedings was found to be incomplete inter alia the appellants record of previous convictions had to be reconstructed.

[4] The matter came before this court on the 15 March 2018, prior to which date it was found and pointed out to the parties, that the record was not completely reconstructed and in particular the reconstruction of the appellants record of previous convictions done by the appeals clerk at Germiston appeared to be incorrect and inconsistent with the Regional Magistrate’s statement in his judgment on sentence to the effect  that ‘all three accused are already serving sentences, including one of 15 years imprisonment where armed robbery is also a part thereof’ [3].

[5] The reconstructed record reflects that only the first appellant and the third co-accused had previous convictions for robbery (not robbery with aggravating circumstances) at the time of sentencing in the trial court. It therefore appeared from the record that the second appellant’s previous convictions were not accurately reflected in the reconstruction. 

[6] In the interests of the effective adjudication of the appeal, this court required the State as a matter of urgency to obtain a recent and complete record of previous convictions of the appellants from the criminal record center for presentation to the court.

[7] On 15 March 2018 it was conceded by the parties that the manner in which the appellants’ record of previous convictions was reconstructed by the appeals clerk alone, was unreliable and not in accordance with the directives according to case law.[4] Counsel for the State advised that the record of previous convictions form SAP 69 in respect of the appellants which he obtained was not up to date. He informed this court that he made efforts to obtain an original charge sheet from the Magistrates Court Alexandra where the first appellant was previously tried. The charge sheet reflects that the first appellant was previously convicted and sentenced on a charge of robbery with aggravating circumstances and not robbery as per the reconstructed record.

[8] State counsel submitted that the original charge sheet was probative material, with the aim of proving the previous conviction against the first appellant. The proposed method of proving the first appellant’s previous convictions by counsel for the State was disallowed by this court as it was not the correct procedure to prove previous convictions. In the absence of the usual method of proving previous convictions by way of form SAP 69, it is settled practice that a form J14 be used.

[9] Obtaining a J14 form occasioned a further delay as the State had to obtain an extract from the charge sheet and court book of the first appellant’s previous conviction by way of the form J14 as required by this court. Having received the J14, the original charge sheet has to be returned by the State to the Alexandra Magistrates Court for filling in the prescribed manner and future reference.

[10] The merits of the appeal on sentence were eventually argued on 16 March 2018.

 

PRELIMINARY ISSUES

[11] Before I address the merits of the appeal, I deem it prudent to deal with certain procedural aspects which are a matter of concern considering the condition in which the appeal record was received and which caused the unnecessary delay in the finalisation of the appeal.

[12] Uniform Rule Rule 50 (3) provides –

‘the ultimate responsibility for ensuring that all copies of the record on appeal are in all respects properly before the court shall rest on the appellant or his or her legal representative: Provided that where the appellant is not represented by a legal representative, such responsibility shall rest on the director of public prosecutions.’

In this matter the appeal was first enrolled and postponed sine die because the record of the trial proceedings was found to be significantly defective and incomplete.

[13]  Since the appeal lies only against sentence, once it became known that the record of something as elementary as the previous convictions of the appellants could not be reconstructed by the presiding officer who has retired and was unavailable, it was expected that defence and state counsel as officers of the court would ensure that the record was timeously and adequately reconstructed.

[14] It serves no good purpose to enroll an appeal with full knowledge that it would require a postponement due to the record being defective. In this matter the appeal hearing was delayed twice for that same reason. Counsel expected this court to decipher exactly what the previous convictions were, so as to ensure the effective adjudication of the appeal. Such sloppy preparation is reprehensible.

[15] In S v Chabedi[5] it was emphasised-

‘On appeal, the record of the proceedings in the trial court is of cardinal importance. After all, that record forms the whole basis of the rehearing by the Court of appeal. If the record is inadequate for a proper consideration of the appeal, it will, as a rule, lead to the conviction and sentence being set aside. However, the requirement is that the record must be adequate for proper consideration of the appeal; not that it must be a perfect recordal of everything that was said at the trial...  The question whether defects in a record are so serious that a proper consideration of the appeal is not possible, cannot be answered in the abstract. It depends, inter alia, on the nature of the defects in the particular record and on the nature of the issues to be decided on appeal’.

[16] Despite the fact that certain parts of the trial record were incomplete, the record which was available was adequate for the court to adjudicate the appeal on sentence, provided that an accurate record of previous convictions proved against the appellants was made available. The latter was necessary especially because it is a long outstanding appeal which was previously postponed.

[17] In this type of case where the minimum sentencing legislation is applicable, the assessment of an appropriate sentence is fundamentally reliant on the previous convictions of the appellants. That is so because the State bears an onus to prove the jurisdictional requirements necessary to trigger sentencing in terms of section 51(2) of the Criminal Law Amendment Act[6] (CLAA).

[18] Therefore it has become increasingly important for the State to ensure that convicted persons’ criminal records are properly registered with the South African Police Service Criminal Record Center to ensure that the detail thereof are accurately presented and proved in the court. I find it reprehensible that the previous conviction of the first appellant took place in the year 2013 and some five years later, it is not reflected in the SAP 69’s obtained from the criminal record center. The unacceptable tardiness can only lead to bringing the administration of justice into disrepute[7].

 

FACTUAL MATRIX

[19] I now revert to the merits of the appeal on sentence. It is necessary for the facts found to be proved to be stated, in order to contextualize the convictions and the resultant assessment of an appropriate sentence.

[20] The trial court found that the evidence proved beyond reasonable doubt that the two appellants and their co-accused, were the perpetrators of a robbery committed with aggravating circumstances, in that they on 16 April 2008 at the Wadeville Nedbank, wielded firearms and violently robbed an amount  R332 000 from an employee of the bank.

 

THE GROUNDS FOR THE APPEAL ON SENTENCE

[21] Based on the principle that direct imprisonment is appropriate on the facts, it was argued on behalf of the two appellants that the terms of imprisonment imposed by the trial court, induced a sense of shock. It was submitted that the trial court did not have regard to the long period of awaiting trial of 6 years and 5 months. The two appellants spent this inordinately long period in custody awaiting the finalisation of their trial. It was also argued that the trial court over emphasised the retributive element of sentencing and did not give due consideration to the important aspects of deterrence and reform.[8] 

[22] In heads of argument defence counsel argued the contents of the reconstructed record (which was found to be unreliable) of previous convictions that the provisions in section 51(2) (a) (ii) of the CLAA[9] is applicable to the sentencing of the first appellant although the record reflected that the conviction was for robbery and not robbery with aggravating circumstances.

[23] It was contended that but for the mere fact that the sentence reflected in the record was fifteen years imprisonment, it can only be assumed that the conviction was for a charge of robbery with aggravating circumstances. In the course of his argument defence counsel conceded that this assumption was without basis. It needs to be reiterated as held in Mokela v S[10] that the state has to prove the required jurisdictional facts for sentencing necessary in terms of section 51(2) (a) (ii) of the CLAA. Robbery[11] and robbery with aggravating circumstances are different.[12]

[24] Regarding the second appellant it was submitted that he is a first offender on a charge of robbery with aggravating circumstances and therefore the provisions in section 51(2)(a)(i) of the CLAA[13] is the requisite benchmark which the trial court ignored.

[25] It was further contended on behalf of both the appellants that the trial court misdirected itself by finding that there were no substantial and compelling circumstances present in the facts of the case and this supports the imposition of lesser terms of imprisonment than the applicable minimum sentences. It was submitted that the two appellant’s personal circumstances, the time spent in custody awaiting trial and the fact that the victims of the robbery were not injured, constitute collective factors weighty enough for a deviation from the prescribed minimum sentence.

[26] In addition defence counsel submitted with reference to inter alia the decisions in S v Maake[14] and S v Mathebula[15] that the trial court did not exercise its sentencing discretion judiciously.

[27] Regarding the first appellant it was submitted that no reasons are provided in the trial court’s judgment for the sentence of twenty five years imprisonment. This sentence is in excess of five years of the minimum sentence of twenty years which is applicable.

[28] In respect of the second appellant it was argued that the trial court misdirected itself by imposing twenty five years imprisonment upon a first offender whilst the proviso to section 51(2) of the CLAA only authorises a Regional Court to impose a maximum term of imprisonment not exceeding the minimum term of imprisonment provided for by five years[16]. Therefore it was argued that the Regional Court cannot exceed the maximum term of imprisonment by 10 years. The trial court was only authorised to impose twenty years imprisonment and not twenty five years on the second appellant in terms of the CLAA.

[29] In essence the State’s arguments were consistent with that on behalf of the appellants. The State did however submit that the trial court correctly found that there were no substantial and compelling circumstances present on the facts of the case which justified the imposition of a lesser prescribed term of imprisonment.

[30] The parties are agreed that the Regional Magistrate did not provide reasons for sentencing the two appellants to terms of imprisonment in excess of the prescribed minimum sentences applicable and that the trial court exercised its sentencing discretion improperly.

 

THE APPROACH TO AN APPEAL ON SENTENCE

[31] The correct approach to an appeal on sentence is succinctly stated in the locus classicus from S v Malgas[17] per Marais JA restating that-

‘A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh.  In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance.  As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court.  It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate’.

[32] In my considered view the manner in which the sentencing proceedings of the appellants were conducted in the trial court illustrates why it is that sentencing has on occasion been referred to as the “Cinderella” of criminal law. The Regional Magistrate’s judgment on sentence comprises a mere forty transcribed lines and the contents thereof are wholly inadequate to show that the sentences were assessed in earnest.

[33] In his judgment the Regional Magistrate adopted a generalised approach, evident by the sweeping statements made regarding the two appellants and their co-accused’s personal circumstances, rather than to have individualised as was required. Such a cursory treatment of the sentencing procedure would inevitably lead to a misdirection on sentence by the Regional Magistrate and indeed it did in in respect of the appellant’s previous convictions and the minimum terms of imprisonment applicable in terms of the CLAA.

[34] It appears from the record that the Regional Magistrate improperly attached weight to certain submissions by the State and the defence counsel, to the extent that all three accused before him were serving sentences on convictions for robbery with aggravating circumstances, although no such conviction was proved by the State in respect of the second appellant.

[35] As correctly submitted by the parties the Regional Magistrate failed to provide reasons for the imposition of the terms of imprisonment in excess of the minimum provided for. Absent any such reasons the conclusion becomes inescapable that the decision by the trial court was arbitrary and that the sentencing discretion was not exercised judicially.

[36] Regarding the importance of reasons to be provided for our judgments there are a plethora of authoritive decisions in our jurisprudence which comes to mind. In Mphahlele v First National Bank of SA Ltd^[18] the Constitutional Court held-

‘There is no express constitutional provision which requires Judges to furnish reasons for their decisions. Nonetheless, in terms of s1 of the  Constitution,  the  rule  of  law  is  one  of  the  founding  values  of  our   democratic  state,  and  the  Judiciary  is  bound  by  it. The  rule  of  law undoubtedly  requires  Judges  not  to  act  arbitrarily  and  to  be   accountable. The manner in which they ordinarily account for their decisions is by furnishing reasons. This serves a number of purposes. It  explains  to  the  parties, and  to  the  public  at  large  which  has  an  interest in courts being open and transparent, why a case is decided as it is. It is a discipline which curbs arbitrary judicial decisions. Then, too, it  is essential  for  the appeal process, enabling  the  losing party  to  take  an  informed  decision  as  to  whether  or  not  to  appeal  or,  where  necessary, seek leave to appeal. It assists the appeal Court to decide  whether  or  not  the  order  of  the  lower  court  is  correct. And finally, it provides guidance to the public in respect of similar matters. It may well be, too, that where a decision is subject  to appeal  it would be a  violation  of  the  constitutional  right  of  access  to  courts  if  reasons  for  such a decision were to be withheld by a judicial officer.’

[37] It is for the above reasons that I agree with the submissions by the parties that this court is at liberty to consider the sentences afresh.

 

THE FINDING OF THIS COURT OF APPEAL

[38] The proper approach to arrive at a fitting sentence is guided by the useful principle that the sentence to be arrived at should reflect the blameworthiness of the offender in relation to the gravity of the crime, the personal circumstances and characteristics of the offender, as well as the interests of society in the effective sanctioning of offenders.[19] In addition the unique interests of the victims in relation to the nature of the crime should not be lost sight of.

[39] I also considered that it is in the interests of society for sentences to be of a deterrent; preventative; rehabilitative and retributive nature, obviously with reference to the specific merits of the case.[20]

 

PERSONAL CIRCUMSTANCES OF THE APPELLANTS

[40] According to the charge sheet the first appellant was twenty seven years of age at the time of his arrest on 17 July 2008. He is a married man and the father of two children. His three siblings are dependent on him.  It was placed on record that the first appellant was a street vendor with an income of R200 at the time of his arrest. It is not clear from the record whether the income is per day or otherwise.

[41] It was established that the first appellant was previously convicted on 3 March 2003 on a charge of fraud and sentenced to twelve month’s imprisonment of which half of the term of imprisonment was suspended for a period of 5 years. On 11 October 2013 he was convicted of robbery with aggravating circumstances[21] committed on 27 March 2008 at the Nedbank Midrand. He was sentenced in the latter mentioned instance to fifteen years imprisonment and in terms of section 280 of the Criminal Procedure Act[22] it was ordered that 5 years of the imprisonment imposed was to run concurrently with the sentence he was serving at the time.

[42] The detail of the sentence which the first appellant was serving as referred to in the latter mentioned order is not apparent from the available record. The first appellant was held in custody awaiting the finalisation of this matter for about 6 years 5 months[23]. 

[43] The second appellant was thirty one years of age at the time of sentence in the trial court. He supported his wife, two children and two sisters prior to his arrest on 17 July 2008. Second appellant was gainfully employed in his father’s butchery. He has a grade 7 level of education.

[44] He was also in custody for about 6 years 5 months pending the finalisation of this matter. It was proved that the second appellant had one previous conviction for the unlawful possession of a firearm for which he was sentenced on 19 April 2004 to 3 years imprisonment.  It was stated on record by the second appellant’s Attorney that he was serving a sentence at the Boksburg Correctional facility, however the detail of the sentence served was not mentioned.  

 

THE GRAVITY OF THE OFFENCE

[45] There can be no doubt that the offence of robbery with aggravating circumstances is omnipresent country wide. It is the type of offence which pesters the people of our democracy like a malignancy. Members of the public need to be forever vigilant of persons like the appellants, who without sparing a thought for the wellbeing, bodily integrity or dignity of others, with premeditation engage in such violent and dishonest conduct for selfish financial gain.

[46] Further thereto the offence no doubt, impacts negatively on the economy of the country and has cast a dark shadow over the confidence of the community in policing, prosecution and the administration of justice. The consequential harm occasioned by armed robberies is well documented in our jurisprudence.[24] 

[47] Despite the discretionary minimum sentences prescribed by the Legislature for convictions of the type at hand and also the reported robust sentences imposed by the courts daily robberies continue to be the order of the day. It is therefore justified for our courts to give recognition to the plight of society in its demands for protection through the imposition of deterrent sentences. Let others of like mind, receive the stern message that our courts will not hesitate to recognize and implement the policy considerations of the Legislature to the extent that this kind of crime is grave and therefore robust sentences are warranted.

[48] In addition having regard to the peculiar facts of this case I am of the considered view that this is not the sort of transgression where sentimental pity for the offender should be allowed to prevail over common sense and community interests.

 

SUBSTANTIAL AND COMPELLING CIRCUMSTANCES[25]

[49] The prescribed minimum sentences is the bench mark and should ordinarily be imposed in the absence of substantial and compelling circumstances which justifies the imposition of lesser terms of imprisonment than that provided for in section 51(2) of the CLAA. In S v Malgas[26] it was held that-

‘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 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.’

[50] It has been authoritatively acknowledged that the concept ‘substantial and compelling circumstance’ in the context of the provisions of CLAA, denote an amalgamation of factors that defies precise definition. In general, the existence of such weighty circumstance will be present when it is found that the case is one in which the prescribed sentence, would be unjust or disproportionate to the crime, the offender and the legitimate needs of society. Should that be the case, a court is entitled to find the individual or combined weighty factors as substantial and compelling and deviate from the sentence prescribe by the Legislature.[27]

[51] In this regard I considered that nowhere in the appeal record is there any reference to the appellants having expressed remorse for the horrendous crime committed. The appellants in fact challenged their confessions which were found to be admissible evidence. Contrition stems from an appreciation and acknowledgement of the extent of one’s error however that is not demonstrated in this case.

[52] Further both the appellants have relevant prior clashes with the law. Their previous convictions impact adversely on their character. It appears that they are slow to rehabilitate and have not been deterred by the previous terms of imprisonment served. It is also significant to mention that the first appellant’s previous conviction in 2013 on a charge of robbery with aggravating circumstances concerns  an offence committed at a Nedbank (akin to the facts in this case) a mere twenty days prior to the commission of this offence.

[53] It is necessary to take into account the time spent by the two appellants in custody, whilst awaiting the finalisation of the trial. This point was raised by defence counsel as a factor which is weighty enough to tip the scale in favour of the appellants and which should move this court to deviate from the minimum sentences prescribed.

[54] However it is clear that the 6 years 5 months was not only spent in prison in relation to awaiting trial for this offence but at the same time they were serving sentences for other crimes. These unique circumstances occasioned the time spent by the appellants in custody awaiting trial in this matter as being of no consequence.

[55] This court deems it necessary therefore to take into account the reasons and context for the incarceration of 6 years 5 months pending the finalisation of the trial. The circumstances for the long period of awaiting trial has to be considered in order to determine its proper context before it may be allowed to influence the sentencing court’s discretion as to the length of the term of imprisonment to be imposed.

[56] It was established that the first appellant having been arrested on the 17 July 2008 was subsequently sentenced on 11October 2013 by the Alexandra Regional Court to fifteen years imprisonment of which five years of the imprisonment imposed was ordered to run concurrently with a sentence the first appellant was already serving then.

[57] The only reasonable inference to be drawn from the wording of the sentence is that the first appellant was already serving a term of imprisonment on a conviction for crime committed before 11 October 2013 which was not proved for purposes of sentence in this case. His incarceration between his arrest and finalisation of this case was therefore unavoidable due to his conviction and sanction imposed pertaining to the other convictions unrelated to this case.

[58] As mentioned earlier, it appears from the record that the second appellant’s incarceration between his arrest and the conclusion of this trial was also inevitable by the fact that he was clearly serving a term of imprisonment on a conviction which was not proved by the state in the trial court. 

[59] Having regard to the reasons why the appellants remained in prison between their arrest and the conclusion of this trial, it would be impermissible to afford them any credit for the period spent awaiting trial. In addition no reasons were proffered by the defence as to what occasioned the delay.

[60] Although the facts in Radebe v S[28] are distinguishable from the facts of this case, I am in full agreement with the approach as held therein that:

‘the period in detention pre-sentence is but one of the factor that should be taken into account in determining whether the effective period of imprisonment to be imposed is justified …Such an approach would take into account the conditions affecting the accused in detention and the reason for a prolonged period of detention. And accordingly, in determining in respect of the charge of robbery with aggravating circumstances, whether substantial and compelling circumstances warrant a lesser sentence than that prescribed by the Criminal Law Amendment Act…the test is not whether on its own the period of detention constitute a substantial and compelling circumstance, but whether the effective sentence proposed is proportionate to the crime ….’ [My emphasis]

[61] It is impermissible in cases of serious crime for the personal circumstances of the offender, to ebb into the background. The Supreme Court of Appeal in S v Vilakazi[29]held as follows-

‘Once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether he has two children or three, whether or not he is in employment, are in themselves largely immaterial to what that period should be, and those seem to me to be the kind of ‘flimsy’ grounds that Malgas said should be avoided. But they are nonetheless relevant in another respect. A material consideration is whether the accused can be expected to offend again’. [My emphasis]

[62] This is such a case. The appellants have proved themselves to be a danger to society. Having applied my mind to the distinctive facts of this case, and in adherence to the well know general sentencing principles, I conclude that there are no substantial and compelling factors that justify a deviation from the minimum terms of imprisonment fitting the individual appellants as provided for in section 51(2) of the CLAA.

Accordingly, the appeal against sentence by the first and second appellant is upheld.

The following order is made.

1. The appeals against sentence by the first and second appellants are upheld.

2. The sentence of twenty five years imprisonment imposed on the first appellant on the charge of robbery with aggravating circumstances is set aside and substituted with a period of twenty years imprisonment in terms of the provisions in section 51(2) (a) (ii) of Act 105 of 1997 as amended.

3. The sentence of twenty five years imprisonment imposed on the second appellant on the charge of robbery with aggravating circumstances is set aside and substituted with a sentence of Fifteen years imprisonment in terms of the provisions in section 51(2)(a)(i) of Act 105 of 1997 as amended.

 

 

______________________

Matthys R

Acting Judge of the High Court

Gauteng Local Division

 

I concur,

 

 _______________________

Victor M

Judge of the High Court

Gauteng Local Division

Date: 29 March 2018

 

APPEARNACES

Counsel for the Appellants: Adv Greyling (LASA Johannesburg)

Counsel for the State/Respondent: Adv Ngubane

 

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