S v Mqabhi

• Jurisdiction: South Africa
• Judge: Spilg J and Vally J
• Judgment Date: 17 September 2014
• Citation: 2015 (1) SACR 508 (GJ)
• Docket Number: A 424/2012
• Hearing Date: 17 September 2014
• Counsel: K Cosyn for the appellant. RT Mareume for the state.
• Court: Gauteng Local Division, Johannesburg

Spilg J (Vally J concurring): D

Introduction

[1] The appellant faced two charges. The first was for robbery with E aggravating circumstances, read with the minimum sentence provisions of s 51 and part II of sch 2 to the Criminal Law Amendment Act 105 of 1997 (CLAA). He was found guilty and, as a first offender, was sentenced to the minimum prescribed period of 15 years' imprisonment commencing from the date sentence was delivered. The appellant was acquitted on the second charge of attempted murder.

F [2] The court a quo granted leave to appeal in respect of sentence only.

The issues

[3] Ms Cosyn on behalf of the appellant argued that the learned regional G court magistrate misdirected himself in that he should have found substantial and compelling circumstances present under s 51(3)(a)[1] of the CLAA, warranting the imposition of a sentence less than the prescribed minimum. It was also submitted that the sentence induced a sense of shock and was inappropriate.

H [4] It is evident from the record that the magistrate had considered the nature of the crime, the personal circumstances of the appellant and the interests of society, including the impact of the crime on the victim.

[5] The court also referred to the fact that the appellant had been held in I custody for a period of two years prior to sentencing, but on an overall

Spilg J (Vally J concurring)

assessment concluded that there were no substantial and compelling A circumstances justifying a custodial sentence less than the 15 year minimum.

[6] Counsel were requested to deal with how courts treat a lengthy period in custody prior to sentencing, where the minimum sentencing provisions of s 51 of the CLAA apply. The period in custody prior to B sentencing will also be referred to as 'pre-sentence detention' (see S v Radebe and Another2013 (2) SACR 165 (SCA) ([2013] ZASCA 31) in para 13).

In the heads of argument subsequently filed, Ms Cosyn relied on a number of cases, including S v Vilakazi2009 (1) SACR 552 (SCA) C (2012 (6) SA 353; [2008] 4 All SA 396; [2008] ZASCA 87) and S v Kruger2012 (1) SACR 369 (SCA), to support the argument that the two year period in custody should be deducted from the 15 years imposed and the sentence antedated to 29 July 2011, being the date when the magistrate handed down the sentence. It was submitted that a lengthy period in custody constitutes a substantial mitigating factor D warranting a departure from the prescribed minimum sentence.

Mr Mareume for the state also relied on Vilakazi and Kruger. He submitted that these cases supported the proposition that it was only fair to consider the period in custody, particularly if it was lengthy, when determining an appropriate sentence. The sting in the tail was that the E state relied on the fact that the sentencing court had expressly mentioned the lengthy period the appellant had been in custody awaiting trial, and submitted that the court had therefore considered the matter and had properly exercised its discretion.

The state also relied on s 51(4) of the CLAA, which provided that a term F of imprisonment under the minimum sentencing provisions commences from the date of sentencing and no earlier. [2] Although s 51(4) was repealed, the provisions of s 39(1) of the Correctional Services Act 111 of 1998 (CSA) are to similar effect (see below).

[7] In order to consider the issue it is necessary to first set out the main G findings of the trial court by reference to the triad of factors relevant to sentencing [3] and to weigh whether substantial and compelling circumstances were present. In the absence of such factors, the appellant as a first offender would have been correctly sentenced to 15 years' imprisonment.

Nature of the offence H

[8] The trial court found that in the early hours of Thursday 26 November 2009, shortly after 05h00, the appellant in the company of another

Spilg J (Vally J concurring)

A man entered a taxi which was driven by the complainant. They took their seats behind the complainant, ostensibly as fare-paying passengers. The complainant was asked to wait for another person who was joining them. The person arrived and, as he sat down in the front passenger seat, he pulled up the vehicle's handbrake. The appellant drew a firearm and the B driver was then pulled from behind as the assailants attempted to drag him to the back of the vehicle. He tried to resist and the appellant fired a shot which, although not aimed at the driver, was intended to, and did, compel him to submit. This accounts for the appellant being acquitted on the charge of attempted murder, the court also reasoning that the firing of the shot was already taken into account as part of the C aggravating circumstances accompanying the robbery.

[9] The complainant managed to open the back door of the vehicle and fled. The appellant then jumped into the driver's seat, took control of the vehicle and drove off. He was apprehended by members of the taxi association who spotted the vehicle some time later near a filling station D and gave chase. By this stage the hijackers had already managed to strip some of the parts from the vehicle, including the sound system. The damage caused to the vehicle was assessed at approximately R18 000.

Personal circumstances of the appellant and the interests of E society

[10] The appellant was 35 years old at the time of sentencing. He had a 3-year-old son, was in a steady relationship and also supported his parents. The appellant had been in permanent employment until retrenched, after which he managed to obtain work as a taxi driver until F the arrest.

[11] The trial court referred to the epidemic of violence and the seriousness of crimes which involve firearms. The court also considered the impact of the crime on the complainant, how he was traumatised and the financial loss occasioned as a consequence of the hijackers stripping items from his vehicle. Finally the magistrate took into account that the G crime was carefully planned. One can also add that the appellant did not act alone, the attack being executed by a gang which included two others.

[12] The magistrate said the following in respect of the pre-sentence period in custody:

H 'The only factor I could find in favour of the accused is that he has been in custody for a very long time awaiting finalisation of the matter. He was arrested in the year 2009, it is now 2011. He is a first offender, however this is an offence that is very serious in nature, a firearm has been used, and the offence was carefully planned and carefully I executed.

In my judgment on an overall assessment of . . . the accused I have reached the conclusion after much cognizing (possibly a typing error for ''agonising'') that there is a need for the protection of society in that a sentence that is prescribed not be destructive. I therefore cannot find any substantial and compelling circumstances justifying the imposition J of a lesser sentence.'

Spilg J (Vally J concurring)

[13] In granting leave to appeal against sentence only, the court said: A

'In respect of sentence. The court had considered a number of factors, particularly the accused's personal circumstances . . . I could not even be placed with any compelling and substantial circumstances. I had also taken into account that the applicant had been in custody for almost two years prior to the finalisation of the matter. B

However sentence is a matter of discretion.'

[14] As stated earlier, the court considered the two year period during which the appellant was in custody prior to sentencing and concluded that, overall, there were no substantial and compelling circumstances. C

The issues

[15] If the period in custody is properly a factor to be considered under s 51(3)(a), then the question arises whether the magistrate was obliged to consider the effect it would have on the actual period that the appellant may be subjected to loss of freedom as a consequence of his crime (ie 17 years), and on the period he must wait before being eligible for parole. D

[16] In the present case the magistrate concluded that the lengthy period in custody prior to sentencing did not constitute a substantial and compelling circumstance, either when the mitigating and aggravating factors were viewed in their totality or in isolation (compare the E judgment on sentence with that for leave to appeal). Accordingly, at face value, the period in custody was said to have been considered but was not sufficient to bring the appellant within the purview of s 51(3)(a).

[17] The SCA has dealt with the pre-sentence period in custody and the issues it raises in four relatively recent decisions: S v Vilakazi supra; S v Kruger supra; S v Dlamini2012 (2) SACR 1 (SCA); and S v Radebe supra. F

[18] In Vilakazi the SCA said in para 60: G

'There is one further consideration that must be brought to account. The appellant was arrested on the day the offence was committed and has been incarcerated ever since. At the time he was sentenced he had accordingly been imprisoned for just over two years. While good reason might exist for denying bail to a person who is charged with a serious H crime it seems to me that if he or she is not promptly brought to trial it would be most unjust if the period of imprisonment while awaiting trial is not then brought to account in any custodial sentence that is imposed. In the circumstances I intend ordering that the sentence — which for purposes of considering parole is a sentence of 15 years' imprisonment commencing on the date that the appellant was sentenced — is to expire two years earlier than would ordinarily have been the case.' I

The court made the following order:

'The accused is sentenced to fifteen years' imprisonment from which two years are to be deducted when calculating the date upon which the sentence is to...