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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&R297/2013

 

In the matter between:

VUYO MADYO                                                    Appellant

and

THE STATE                                                        Respondent

APPEAL JUDGMENT

REVELAS J:

[1] This appeal, with leave of the trial court, is against sentence only.  The appellant was convicted, despite his plea of not guilty, of housebreaking with intent to steal and theft in the Regional Court in Aliwal North. He was sentenced to ten years’ imprisonment. The case against the appellant was that on the evening of 2 September 2008 and at Steve Tshwete, Lady Grey, he broke into the house of the complainant and stole from her a curtain, a flame stove, a pair of tackies, a pillow case, a candle holder and a candle.

[2] The evidence accepted by the Regional Magistrate upon which he convicted the appellant was briefly the following:

[3] On the evening in question, the complainant was already in bed when she heard the footsteps of someone outside her house.  Initially she thought it was just someone passing by. She soon realized, when she heard someone fiddling with the door, that the person outside her house was attempting to gain access to the house.  She saw the person, who later turned out to be the appellant, through the kitchen window.

[4] She decided to flee from her home, but first had to find her shoes in the bedroom.  When she looked up, the appellant was standing at her bedroom window.  She had to leave her house through another door, only to realize that the appellant was already at that door, trying to get in.  She ran to the toilet to escape through the window there.  As she opened the window, the appellant was already there. She then closed the window, whereupon the appellant smashed it with a stone.  Realizing that he would finally succeed in breaking into the house through this window, she left the toilet and locked its door from the outside. She presumably did this to stall him, giving her an opportunity to escape, which she fortunately managed to do.  When she returned to her home the following morning, having slept at her sister’s house, she established that the items mentioned above had been stolen. These items were later retrieved when the police went to the accused’s house and found them there.

[5] It was submitted on behalf of the appellant that the sentence imposed by the magistrate was harsh and induced a sense of shock, and that the magistrate had misdirected himself by overemphasizing the seriousness of the offence and the appellant’s previous convictions at the expense of the appellant.

[6] The magistrate held that the most aggravating feature of this offence was that the complainant was a female living alone in her house when it was broken into. The magistrate’s approach in this regard is not open to criticism. Undoubtedly the experience must have been a frightening one for her.  Her home, where she was entitled to feel safe, was invaded in a brazen and brutish manner by the appellant as described above.  He made her a fugitive from her own home and violated her right to privacy.

[7] On the face of it, the term of ten years’ imprisonment imposed for a conviction of housebreaking with the intention to steal and theft may seem somewhat severe, but apart from the aggravating features of the offence as set out above, the magistrate also took into account, and properly so, that when the present matter was adjudicated, the appellant was already serving a sentence of three years’ imprisonment for housebreaking imposed on 22 October 2008. The appellant also had four previous convictions for housebreaking with intent to steal and theft of which three were committed in 1988 (when he was only […..] old) and one other in 1990. The appellant also had a previous conviction for housebreaking with intent to commit robbery in 1992. His next conviction was for rape in 2003. In 2005 he was convicted of both common assault and assault to do grievous bodily harm, followed by a conviction for possession of drugs in 2006. In 2008 he was convicted of malicious damage to property, and also of the housebreaking charge in respect of which he was serving the sentence of three years’ imprisonment referred to above.

[8] The magistrate considered the appellant’s lengthy criminal record since 1988, and concluded that he should be removed from society for “a substantial period of time” since he was of the view that the appellant posed a threat to society. The appellant’s personal circumstances, which the magistrate also took into account, were briefly that he was a twenty- six-year old unemployed father of a small child.  However, the magistrate was mistaken about the appellant’s age which was thirty-five years at the time.   

[10] The powers of a court of appeal to interfere with a sentence imposed by the trial court are narrowly circumscribed.  Various tests have been formulated as to when a trial court may interfere.  These would include: 

“Whether the reasoning of the trial court is vitiated by misdirection or whether the sentence imposed can be said to be startlingly inappropriate or to induce a sense of shock or whether there is a striking disparity between the sentence imposed and the sentence the Court of appeal would have imposed.  All these formulations however are aimed at determining the same thing; viz whether there was a proper and reasonable exercise of the discretion bestowed upon the court imposing sentence . . . . . either the discretion was properly and reasonably exercised or it was not.  If it was a Court of appeal has no power to interfere[1]”.

[11] The magistrate, in my view, properly and reasonably exercised his sentencing discretion in this case and the sentence of ten years’ imprisonment imposed by him should be confirmed. The appeal should, however, partially succeed in respect of one aspect.  The magistrate ought to have ordered the sentence imposed in the present matter to run concurrently with the sentence of three years’ imprisonment imposed in 2008 which the appellant was serving at the time.

[12] The magistrate furnished no reasons as to why he did not order the two sentences to run concurrently in terms of section 280 of the Criminal Procedure Act, 51 of 1977 (“The Act”).  I assume he either viewed the appellant’s substantial criminal record as too serious, particularly his previous convictions for housebreaking, or it was an oversight. 

[13] The provisions of section 280 (1) and (2) read as follows:

“(1)    When a person is at any trial convicted of two or more offences or when a person under sentence or undergoing sentence is convicted of another offence, the court may sentence him to such several punishments for such offences or, as the case may be, to the punishment for such other offence, as the court is competent to impose.

(2)      Such punishments, when consisting of imprisonment, shall commence the one after the expiration, setting aside or remission of the other, in such order as the court may direct, unless the court directs that such sentences of imprisonment shall run concurrently”. 

[14] Section 280 (2) of the Act provides a sentencing court with a discretion (when sentencing an accused already serving a sentence or where there are multiple convictions), to make an order that such sentences run concurrently.  In the absence of such an order, the sentences will run consecutively.  There are a number of reasons which a sentencing court can legitimately take into account in this regard.  One such ground is the cumulative effect of such sentences and whether it is proportional to the offence committed.  Only if the court a quo committed a misdirection or exercised its discretion improperly or injudiciously can a court of appeal interfere a court’s decision not to order the sentences to run concurrently.  (S v Mokela 2012 (1) SACR 431 paragraph [10], at 435i-436b).

[15] The magistrate was entitled to regard the appellant’s considerable criminal record as an aggravating circumstance, but it must be pointed out that most of the appellant’s previous convictions for housebreaking date back to more than ten years. In addition, during the period between 1992 and 2003 (eleven years), the appellant was not convicted of any crimes. It may be that the appellant was incarcerated during that period, but there was no evidence to that effect before the magistrate.  These aspects of the appellant’s criminal record were not properly considered and simply never raised.  In my view, the cumulative effect of the two sentences imposed (thirteen years) is disproportional to the offence the appellant was convicted of and therefore too harsh. An order that the sentences in question run concurrently ought to have been made in the aforesaid circumstances.  

[16] In the result, the following order is made:

1.     The sentence of ten (10) years’ imprisonment imposed by the magistrate is confirmed and is amplified by an additional order which reads:

“The sentence of ten (10) years’ imprisonment imposed in this matter is to be served concurrently with the sentence of three (3) years’ imprisonment imposed on 22 October 2008, which is presently being served by the accused”.

2.     The sentence hereby substituted, is antedated to 29 October 2009.      

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E REVELAS

Judge of the High Court

 

 

Hartle J:     I agree.

 

 

______________

B HARTLE

Judge of the High Court

 

 

 

Counsel for the Appellant:         Adv MM Xozwa

                                                        Justice Centre

                                                        Grahamstown

 

 

Counsel for the Respondent:     Adv SS Mtsila

                                                        Director of Public Prosecutions

                                                        Grahamstown

 

Date Heard:                               12 March 2014

 

Date Delivered:                          26 March 2014

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