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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

 

                                                       Not Reportable

Case No:  CA&R 222/2013

In the matter between:

ETTIENNE BUYS                                                                                                         Appellant

and

THE STATE                                                                                                              Respondent

APPEAL JUDGMENT

REVELAS J

[1] This is an appeal against sentence, with leave of the Judge President.  The [……] year old appellant pleaded guilty to a charge of robbery with aggravating circumstances and was convicted in the regional court in Port Elizabeth on 16 May 2013. His conviction was based on the allegations made in his statement made in terms of section 112(2) of the Criminal Procedure Act, 51 of 1977 (“the CPA”). The appellant was sentenced to fifteen years’ imprisonment.

[2] The appellant’s legal representative advised the regional magistrate that his client was appraised of the relevant provisions of section 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997 (”the CLAA”), which prescribes a minimum sentence of fifteen years’ imprisonment for robbery with aggravating circumstances, as set out in the charge sheet.

[3] Section 51(3) of the CLAA provides that a lesser sentence may be imposed if the court is satisfied that substantial and compelling circumstances exist.   The regional magistrate held that there were no such circumstances.

The Facts

[4] A brief factual overview of this case, as gleaned largely from the charge sheet and the appellant’s statement made in terms of section 112(2) of the CPA, is the following:

[5] On 13 May 2013, the appellant jumped over the wall surrounding the property of Mr M.C., a house in […….]. He gained access to the house, which was operated as a guesthouse, through an open door.  Once inside the house, which he entered with the purpose to rob, he came across Ms E.N., an employee of Mr M.C. and held her up with a toy gun which she believed was a real fire-arm.  Accordingly, she complied with the appellant’s demand to take him to the bedrooms in the house.  According to the appellant, he assured her that she would not be hurt. The appellant took several items from the rooms. These ranged from cellphone chargers and equipment to jewellery and cash.  The total value of the stolen goods, all being luxury items, was R40 000.00.

[6] The appellant placed all the items he had stolen in the house inside the two bags he had taken with him when he came onto the property.  With these he left the property by again jumping over the wall. He was arrested shortly after the robbery by members of the police. They made use of sniffer dogs to find him where he hid in the bushes and one of the dogs bit him.

The Appellant’s Case

[7]    It was submitted on behalf of the appellant that the magistrate overemphasized the seriousness of the offence by not according proper weight to the appellant’s personal circumstances, thus committing a misdirection.  To examine the aforesaid proposition, the appellant’s personal circumstances must be referred to and considered.

[8] The appellant was the youngest of five children. His mother raised them alone after she divorced his father, who has since died.  After failing matric he left school because he could not afford to repeat the year. He still lives with his mother, and his sister and her two children also live with them.  The appellant is the father of a baby boy who lives with his unemployed mother.  The appellant and his mother (who only recently found employment) struggle to make ends meet. The appellant earns money through casual employment as a painter.  He earns R120.00 per day when he works, which occurs infrequently. When he is able to do so, the appellant contributes financially to assist his sister, her two children and his own child.  He also collects government grants on his sister’s behalf so that she need not queue at the relevant pay point. 

[9] The appellant’s legal representative submitted that there were also other factors, apart from his personal circumstances, which the magistrate ought to have considered and accorded more weight to.  These were the following:

[9.1] The appellant was truly remorseful and this was evidenced by the fact that he pleaded guilty and gave evidence in court to that effect, and added that he wished the complainant, Ms Ntengo, was present in court, so that he could apologize to her personally.

[9.2] Ms Ntengo was in no real danger during the commission of the crime because of the toy gun and the appellant’s assurance that he would not hurt her.  No person was injured during the incident, except the appellant himself, who was bitten by a police dog.

[9.3] All the stolen goods were recovered and no damage was done to the property because the appellant gained entry to the house through an open door. 

[10] Relying on the decision in S v Malgas 2001 (1) SACR 469 at 482a, it was submitted on behalf of the appellant that the magistrate ought to have found that all the aforesaid factors cumulatively amounted to substantial and compelling circumstances that justified a departure from the prescribed minimum sentence for armed robbery. The appellant who emphasized that he deeply regretted his actions, requested the magistrate to have mercy on him and to impose a non-custodial sentence (”buitestraf”). 

Evaluation

[11] The appellant was not a first offender.  He had a previous conviction for theft committed in October 2011.  The sentence imposed in that matter was to pay a fine of R1000.00 or serve a term of three months’ imprisonment, which sentence was suspended for four years on condition that he is not convicted of theft or attempted theft committed during the period of suspension. The magistrate in that matter also declared the appellant unfit to use a fire-arm in terms of the provisions of section 103 of the Fire Arms Control Act, 60 0f 2000.

[12] The appellant’s request to the magistrate for a non-custodial sentence, in my view, is a strong indication that the appellant had no real appreciation of the seriousness of the offence he had committed.

[13] The absence of violence during the incident was solely attributable to Ms Ntengo’s co-operation which was coerced at gunpoint, and does not in my view, amount to a substantial or compelling circumstance which outweighs the seriousness of the offence.   The fact that the appellant assured her that she would not be hurt is also not a compelling or substantial circumstance. Implicit in his assurance was the threat that if she did not obey him, she would be harmed. The fire-arm must have instilled fear into her, or else she would not have facilitated the theft of the property which the guests left in her care. 

[14] Also, the appellant gained access to this house by climbing over a wall built with the specific purpose to keep the residents safe and harmdoers outside. The guests who lost their possessions in this manner, albeit temporary because the items were retrieved, would hardly be expected to return to this guest house in the future, and that must have potentially harmed the owner’s business.

[15] Luxury items were stolen and their worth (R40 000.00), was substantial. The appellant must have expected a large haul because he took two bags with him. He said that he chose this house because it was large and had a swimming pool. This indicates pre- meditation.

[16] It is significant for purposes of assessing the appropriateness of the sentence under consideration that the appellant had, within the period of suspension of his sentence for theft, committed an armed robbery. This weighed heavily with the magistrate and his reliance thereon in his judgment is not open to criticism. It must be borne in mind that robbery is theft coupled with violence, even if it was only the threat of violence, and this particular robbery also occurred in the context of a home invasion. This, in my view, renders the robbery sufficiently serious to outweigh the appellant’s personal circumstances and the factors upon which he relied as being mitigating.

[17] The appellant’s plea of guilty and the fact that no persons were injured except the appellant, may perhaps have swayed another court, including myself, had I heard the matter as a court of the first instance, to impose a slightly lesser sentence. It is trite though, that the imposition of sentence is pre-eminently the prerogative of the trial court and the exercise of its discretion should not be interfered with simply because the court of appeal would have imposed a different sentence (See; S v Rabie 1975 (4) SA 855 (A) at 857F; S v Shapiro 1994 (1) SACR 112 (A) 118j-120c and S v Sandler 2000 (1) SACR 331 (A) 334i-j).  It should also be borne in mind that sentences imposed in cases of more violent armed robberies, depending on the degree of violence, are generally more severe than the prescribed minimum sentence of fifteen years’ imprisonment.  Therefore, the submission that the sentence in question induces a sense of shock has no merit. 

[18] Also, the appellant was arrested almost immediately and close to the scene of the robbery, with the goods he had stolen from the house still in the two bags in his possession. In these circumstances, his plea of guilty seems to be motivated rather by practical considerations than true remorse.

Conclusion

[19] The appellant did not demonstrate that the magistrate overemphasized the seriousness of the offence at his expense. Armed robbery is a very serious offence and, increasingly, it is becoming more prevalent in the Port Elizabeth area. The magistrate was entitled to take that fact into account. Since the magistrate did not exercise his sentencing discretion unreasonably or improperly, there is no justification for interfering with the sentence imposed by him. Therefore the appeal falls to be dismissed. 

[20] It is ordered that:

[21] The appeal is dismissed.

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E REVELAS

Judge of the High Court

Hartle J:    I agree.

________________

B HARTLE

Judge of the High Court               

Attorney for the Appellant:   Mr O Mtini

                                                Justice Centre

                                                Grahamstown

 

For the Respondent:          Adv D Els

                                                Director of Public Prosecutions

                                                Grahamstown

 

Date Heard:                        12 March 2014

Date Delivered:                   26 March 2014                           

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