S v Fortune

• Jurisdiction: South Africa
• Judgment Date: 22 November 2013
• Citation: 2014 (2) SACR 178 (WCC)

S v Fortune
2014 (2) SACR 178 (WCC)

2014 (2) SACR p178

Citation	2014 (2) SACR 178 (WCC)
Case No	A(R) 48/13
Court	Western Cape Division, Cape Town
Judge	Binns-Ward J and Manca AJ
Heard	November 22, 2013
Judgment	November 22, 2013
Counsel	Counsel details not provided.

Flynote : Sleutelwoorde

Sentence — Prescribed sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — 'Substantial and compelling circumstances' — Constitutionally compatible administration of minimum sentence I legislation reliant on judicial nuance, which is undesirable — Legislation had to be applied in manner that avoids infringement of convicted person's basic rights in terms of s 12 of Bill of Rights.

Robbery — Aggravating circumstances — Sentence — Minimum sentence in terms of s 51 of Criminal Law Amendment Act 105 of 1997 — Appropriate for sentencing court to have regard to gradations in manifestations J of offence — Accused with number of previous convictions threatening

2014 (2) SACR p179

woman in broad daylight in city street with knife and grabbing A handbag — Sentence of 15 years' imprisonment disproportionate to offence and replaced with sentence of eight years' imprisonment.

Headnote : Kopnota

The appellant was convicted in a regional magistrates' court of robbery with aggravating circumstances and was sentenced to the mandatory minimum B sentence of 15 years' imprisonment, the court not having found the existence of any substantial and compelling circumstances justifying a lesser sentence. In granting the appellant's application for leave to appeal, the trial magistrate remarked that he and his regional magistrate colleagues would benefit from a greater degree of clarity in how to approach the issue of substantial and compelling circumstances. On appeal, the court embarked upon a review of the decisions of the top-tier courts relating to the C imposition of minimum sentences and remarked that the constitutionally compatible administration of the minimum sentence legislation was reliant upon judicial nuance. This was hardly desirable and was a position that was bound in practice to result in approaches to sentence that would be difficult to reconcile and appeared to be discordant. What was clear was that the criminal courts have the duty to approach sentence, treating each case on its D individual merits and mindful of the need to apply the minimum sentence legislation, in a manner that did not result in punishment that was disproportionate, having regard to the peculiar circumstances of the commission of the offence and the personal circumstances of the offender. The provisions of the legislation fell to be applied in a manner that avoided any infringement of the convicted person's basic rights in terms of s 12 of the Bill of Rights. (Paragraph [9] at 186e – h.) E

The offence in question was committed by the appellant who threatened the complainant with a knife on a street at 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 she had been carrying. He had initially pretended to approach her for the purpose of asking for a match to light a cigarette. The complainant suffered no injuries. The appellant was 30 years F of age when the offence was committed and was a handyman earning a monthly income of approximately R4000. He had a number of previous convictions, including convictions for robbery, malicious injury to property, housebreaking with intent to steal and theft, and common theft. He had a drug-abuse problem. The court held that regard had to be had to the gradations in the manifestations of the offence of robbery with aggravating circumstances in determining an appropriate sentence. The fact that the G complainant had been threatened rather than physically assaulted and injured was a relevant factor to be taken into account, along with all the other factors that had to be weighed in determining whether a departure from the prescribed sentence was warranted. (Paragraph [11] at 187d – e.)

A sentence of 15 years' imprisonment was disproportionate in the peculiar H circumstances of the commission of the offence in question, and would unjustly equate the punishment of the offence with that imposed under the applicable legislation for far more serious instances of robbery. In the present case the complainant had not been physically injured and the value of the property stolen was relatively small. In the circumstances a sentence of eight years' imprisonment would be appropriate. (Paragraphs [16] at 189a – b and [17] at 189f.) The appeal was upheld and the sentence was set aside and replaced with a sentence of eight years' imprisonment. I

Annotations:

Cases cited

Case law

Director of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others 2009 (2) SACR 361 (SCA) ([2009] 4 All SA 295): discussed J

2014 (2) SACR p180

S v Brophy 2007 (2) SACR 56 (W): not followed A

S v Dlamini 2012 (2) SACR 1 (SCA): compared

S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423; [2001] ZACC 16): discussed

S v Kwanape 2014 (1) SACR 405 (SCA) ([2012] ZASCA 168): referred to

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): discussed B

S v Maselani and Another 2013 (2) SACR 172 (SCA): compared

S v Matyityi 2011 (1) SACR 40 (SCA) ([2010] 2 All SA 424): discussed

S v Monageng [2009] 1 All SA 237 (SCA): compared

S v Nkomo 2007 (2) SACR 198 (SCA) ([2007] 3 All SA 596): compared

S v Nkunkuma and Others 2014 (2) SACR 168 (SCA) ([2013] ZASCA 122): discussed C

S v Radebe and Another 2013 (2) SACR 165 (SCA) ([2013] ZASCA 31): applied

S v RO and Another 2010 (2) SACR 248 (SCA) ([2010] 4 All SA 267): compared

S v SMM 2013 (2) SACR 292 (SCA) ([2012] ZASCA 56): compared

S v Vilakazi 2009 (1) SACR 552 (SCA) (2012 (6) SA 353; [2008] 4 All SA 396; [2008] ZASCA 87): discussed. D

Legislation cited

Statutes

The Criminal Law Amendment Act 105 of 1997: see Juta's Statutes of South Africa E 2012/13 vol 1 at 2-538.

Case Information

Appeal against a sentence imposed in a regional magistrates' court for robbery with aggravating circumstances.

Counsels details not provided.

Order

(1)

The F appeal against sentence is upheld.

(2)

The sentence of 15 years' imprisonment is imposed on the appellant.

(3)

A substituted sentence of eight years' imprisonment is imposed on G the appellant.

(4)

The substituted sentence of imprisonment is antedated to 20 June 2013 in terms of s 282 of the Criminal Procedure Act 51 of 1977.

Judgment

Binns-Ward J (Manca AJ concurring):

H [1] 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 I the Criminal Law Amendment Act 105 of 1997 (the Act) 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 J Western Cape High Court, where a number of people who have been

2014 (2) SACR p181

Binns-Ward J (Manca AJ concurring)

convicted of the same type of offence and the same type of sentences A 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 B degree of legal clarity' in this regard.

[2] 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 the Act is unfortunate, but perhaps not so surprising C 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.

[3] The applicable principles were clearly stated in the seminal judgment in S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; D [2001] 3 All SA 220; [2001] ZASCA 30). [1] That statement of principle received the affirmation of the Constitutional Court in S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423; [2001] ZACC 16). 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 E 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 F 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) ([2009] 4 All SA 295) in para 12 they were referred to as 'enduring and uncomplicated'. The difficulty has lain in their application. What appear to be incommensurate sentences are in G 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...