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Tshefu and Another v S (CA208/2013) [2014] ZAECGHC 96 (7 November 2014)

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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

                                                                                    CASE NO: CA 208/2013

                                                                                    DATE HEARD: 03/11/2014

                                                                                    DATE DELIVERED: 07/11/14

NOT REPORTABLE

In the matter between:

MZUKISENI TSHEFU                                                                                     1ST APPELLANT

LUYANDA NGUBELANGA                                                                            2ND APPELLANT

and

THE STATE                                                                                                        RESPONDENT

JUDGMENT

PLASKET J

[1] On 23 September 2010, the appellants and a third man committed a robbery in Queenstown. They made off in a Mazda Drifter bakkie that they stole during the course of the robbery. They were chased by three policemen in two vehicles and fired a number of shots in the direction of these policemen during a high speed chase. Eventually, when they drove into a cul-de-sac they abandoned the vehicle and fled on foot. When the appellants were apprehended shortly thereafter a semi-automatic firearm was found on the person of one of them and another was found in the close proximity of the other. 

[2] As a result of these events, the appellants were charged in the High Court before Sandi J and convicted of robbery with aggravating circumstances, three counts of attempted murder and the unlawful possession of semi-automatic firearms.  In addition, the second appellant was convicted of unlawfully possessing ammunition. They were sentenced to terms of imprisonment of 15 years in respect of both the robbery and unlawful possession of the firearms, to 12 years in respect of each of the attempted murder counts, although these sentences were ordered to run concurrently with each other, and the second appellant was sentenced to a further five years’ imprisonment in respect of the unlawful possession of ammunition.

[3] The first appellant was sentenced to an effective term of imprisonment of 42 years and the second appellant to an effective term of 47 years. Sandi J, acting in terms of s 276B of the Criminal Procedure Act 51 of 1977, fixed a non-parole period of 25 years. 

[4] Leave to appeal against both conviction and sentence was refused by the trial court. The appellants petitioned the Supreme Court of Appeal for leave to appeal. They did so separately. Leach and Petse JJA granted the first appellant leave to appeal to this court against both conviction and sentence. Navsa ADP and Theron JA granted the second appellant leave to appeal, also to this court, against sentence only. 

[5] In her heads of argument Ms Crouse, who appears for the appellants, had taken two points concerning the attempted murder convictions. They were that the State had not established that the first appellant had the necessary mens rea and that there had been an impermissible splitting of charges. She abandoned these arguments before us. It is accordingly not necessary to say more than that the points she took had no merit for the reasons set out in the heads of argument of Mr Henning, who appeared for the State. That, then, disposes of the appeal of the first appellant against conviction.

[6] Ms Crouse raised two issues in respect of sentence. They are, first, that the cumulative effect of the sentences is so severe as to make the sentences imposed shockingly inappropriate and, secondly, that the trial court erred in fixing a non- parole period. She abandoned the basis upon which she had dealt with the second point in her heads of argument but it will nonetheless be necessary to deal with the issue, albeit on a different basis. 

The cumulative effect of the sentences

[7] Section 280(1) of the Criminal Procedure Act 51 of 1977 provides that when an accused is convicted of two or more offences, the trial court ‘may sentence him to such several punishments for such offences. . . as the court is competent to impose’. Section 280(2) provides that sentences of imprisonment shall run consecutively ‘unless the court directs that such sentences of imprisonment shall run concurrently’.

[8] In order to be able to determine whether the sentences imposed are in order or not it is necessary to set out the facts in more detail and to discuss the personal circumstances of the appellants. 

[9] The appellants travelled from Mdantsane to Queenstown to commit the robbery. Both were armed with semi-automatic firearms. Firearms were brandished during the robbery. The robbers trained them on the complainants before searching them and dispossessing them of three cell phones and money totalling R11 930.00. 

[10] During the course of the robbery one of the complainants was struck on his head and back with the butt of a firearm, causing an open wound on his head. All four complainants were ordered to climb into the back of a truck and the canopy door was then closed. The robbers left the scene in a Mazda Drifter, which belonged to the complainants. 

[11] As they left the scene, the first police vehicle arrived and gave chase. During the chase that followed a number of shots were fired at the police vehicles. 

[12] Both appellants were in their mid-40s when the offences were committed.  The first appellant is divorced. He is the father of five children. He supports two of them, at the time of the trial, a [….] year old and a university student. He is a member of a close corporation and through it he tendered for government contracts. He also worked as a taxi driver. 

[13] The second appellant is married. He lives with his mother, a pensioner. He has two children who were [….] and […..] years old at the time of the trial. He too worked as a taxi driver. 

[14] The first appellant has two previous convictions. The first is for a theft committed in 1985. The second is for a robbery committed in 2002. The second appellant has a previous conviction for the same robbery. Both appellants were sentenced to 17 years’ imprisonment for that robbery. Both had been released on parole and so were parolees when the offences where committed. Their parole has been revoked and the appellants are now serving the remainder of their sentences.  We were informed that they are required to serve about seven more years’ imprisonment in respect of that robbery. 

[15] From the above it is clear that the offences committed by the appellants were serious although it must be noted that, perhaps by luck rather than design, none of the policemen involved in the chase or innocent members of the public were killed or injured. The only person who was injured was one of the complainants in the robbery and that assault was not particularly serious. On the other hand, the use of firearms during the robbery and firing on the police with them in an effort to escape are aggravating factors. Without doubt another weighty aggravating factor is that the offences were committed while the appellants were on parole. The practical effect of that is that they will have to serve the remainder of their sentences in respect of the 2002 robbery before starting to serve their sentences in the present matter. 

[16] A trial court’s function has not been concluded when it has imposed appropriate sentences in relation to each offence of which an accused has been convicted. That is the first step. It is then necessary for it to consider the cumulative effect of those sentences. If it is necessary, in order to avoid an unjust result, to ameliorate the harshness of the aggregate sentence, ‘the sentences on several counts may be arbitrarily reduced to produce a reasonable result when taken together’.[1] The court must, Trollip JA held in S v Young,[2] ask itself: ‘Despite the gravity of the individual offences, is the cumulative effect of these sentences too harsh?’

[17] The effective sentences of 42 and 47 years’ imprisonment that were imposed in this case are undoubtedly extremely long sentences.[3] In S v Muller & another,[4] Leach JA said of a cumulative sentence of 30 years’ imprisonment imposed in respect of three robberies with aggravating circumstances:

An effective sentence of 30 years’ imprisonment is an extremely severe punishment that should be reserved for particularly heinous offences – which these three offences, even viewed in their totality, were not. Although severe, they were not associated with the level of extreme violence or loss of life that unfortunately all too often occurs in armed robberies. And while not insubstantial, the value of what was stolen on each occasion was by no means at the level that is so often the case in many of the robberies which daily entertain the courts. The offences in question therefore cannot be regarded as falling within the upper echelons of the scale of severity.’

[18] The Supreme Court of Appeal has stated in a number of cases that sentences of this magnitude should be reserved for the most heinous of offences precisely because there is a point beyond which a long term of imprisonment is no longer able to serve any significant rehabilitative or deterrent purpose. In S v Skenjana[5] Nicholas JA stated:

A sentence of 20 years’ imprisonment is undoubtedly very severe, and it is not a sentence which I would have imposed had I been sitting as the trial Judge. My personal view is that the public interest is not necessarily best served by the imposition of very long sentences of imprisonment. So far as deterrence is concerned, there is no room to believe that the deterrent effect of a prison sentence is always proportionate to its length. Indeed, it would seem to be likely that in this field there operates a law of diminishing returns: a point is reached after which additions to the length of a sentence produce progressively smaller increases in deterrent effect, so that, for example, the marginal deterrent value of a sentence of 20 years over one of say 15 years may not be significant.’

[19] I am of the view that serious as the offences are of which the appellants were convicted, and poor as their prospects for rehabilitation appear to be, the sentences of 42 and 47 years’ imprisonment are excessive and must be interfered with. It is not suggested that any individual sentence is not appropriate but only that the cumulative effect of all of the sentences is not just.

[20] When the nature and seriousness of the offences, the personal circumstances of the appellants and the interests of society are considered, it appears to me that a cumulative sentence of 22 years’ imprisonment, while lengthy, strikes the correct balance. I do not believe that the moral blameworthiness of the two appellants differs in any respect and so there is no reason to sentence the second appellant to a lengthier period of imprisonment than the first appellant on account of the extra conviction of unlawfully possessing ammunition.

[21] The 15 year sentences for the robbery and the unlawful possession of semi-automatic firearms must, in the case of both appellants run concurrently. In addition, the five year sentence imposed on the second appellant for unlawfully possessing ammunition must also run concurrently with these sentences. I agree with the trial judge that the 12 year sentences for attempted murders should run concurrently with each other but, I believe, it is necessary to order a portion of those sentences to run concurrently with the other sentences. Five years of the 12 year sentences should run concurrently with the other sentences, thus making for effective 22 year sentences in the cases of both appellants.

Fixing a non-parole portion of the sentences?

[22] Section 276B of the Criminal Procedure Act provides:

(1) (a) If a court sentences a person convicted of an offence to imprisonment for a period of two years or longer, the court may as part of the sentence, fix a period during which the person shall not be placed on parole.

(b) Such period shall be referred to as the non-parole-period, and may not exceed two thirds of the term of imprisonment imposed or 25 years, whichever is the shorter.

(2) If a person who is convicted of two or more offences is sentenced to imprisonment and the court directs that the sentences of imprisonment shall run concurrently, the court shall, subject to subsection (1)(b), fix the non-parole-period in respect of the effective period of imprisonment.’

[23] As this judgment will reduce the appellants’ sentences to 22 years’ imprisonment, the non-parole period of 25 years will fall away automatically and this court will then be at large to decide whether to fix a non-parole period and, if so, the length of it.  

[24] Section 276B is a controversial section. It raises problems of the institutional competence of courts to take decisions best taken by specialist functionaries of the Department of Correctional Services – and thus raises squarely separation of powers concerns. It also requires a court to take a decision on parole at the time of sentencing, rather than when the decision should be taken namely, at some time after sentencing when the accused’s conduct and prospects of rehabilitation can more properly be assessed. It is for these reasons that the Supreme Court of Appeal, in S v Stander,[6] made it clear that despite the legislature deciding to empower the judiciary to enter the terrain of the executive when it comes to fixing non-parole periods, ‘it remains generally desirable for a court not to exercise that power’[7] and that an order in terms of s 276B should ‘only be made in exceptional circumstances, when there are facts before the sentencing court that would continue, after sentence, to result in a negative outcome for any future decision about parole’.[8]

[25] Serious as the offences committed by the appellants were, particularly when they were committed while the appellants were on parole, I do not consider this to be a case that is exceptional and so require a non-parole period to be fixed.[9]

The order

[26] To sum up, there is no merit in the first appellant’s appeal against conviction and that will be dismissed, the cumulative effect of the sentences imposed on the appellants is excessive and must be interfered with and there is no reason to determine a non-parole period in the circumstances of this case. There is also no need to back-date the sentences because the appellants will only begin to serve them when they have completed serving their sentences for the 2002 robbery.

[27] I accordingly make the following order.

(a) The first appellant’s appeal against conviction is dismissed.

(b) The appeals of both appellants against sentence succeed to the extent set out below.

(i) Subject to paragraphs (ii), (iii) and (iv), the sentences imposed on the appellants by the court below are confirmed.

(ii) In respect of the first appellant, the sentences of 15 years’ imprisonment in counts 1 (robbery with aggravating circumstances) and 5 (unlawful possession of a semi-automatic firearm) are ordered to run concurrently and five years of the sentences of 12 years’ imprisonment, running concurrently with each other, in counts 2, 3 and 4 are ordered to run concurrently with the sentences in counts 1 and 5.

(iii) In respect of the second appellant, the sentences of 15 years’ imprisonment in counts 1 (robbery with aggravating circumstances) and 5 (unlawful possession of a semi-automatic firearm) and the sentence of five years’ imprisonment in count 6 (unlawful possession of ammunition) are ordered to run concurrently and five years of the sentences of 12 years’ imprisonment, running concurrently with each other, in counts 2, 3 and 4 are ordered to run concurrently with the sentences in counts 1, 5 and 6.

(iv) The non-parole period fixed by the trial court is set aside.

_____________________

C Plasket

Judge of the High Court



I agree.



_______________________

D Chetty

Judge of the High Court

 

I agree.



________________________

R Brooks

Acting Judge of the High Court



APPEARANCES

Appellants: L Crouse, Justice Centre, Port Elizabeth

Respondent: N Henning, office of the Director of Public Prosecutions, Grahamstown



[1] R v Abdullah 1956 (2) SA 295 (A) at 300A.

[2] S v Young 1977 (1) SA 602 (A) at 611C-D. See too S v Johaar & ‘n ander 2010 (1) SACR 23 (SCA) para 14; S v Moswathupa 2012 (1) SACR 259 (SCA) para 8; S v Muller & another 2012 (2) SACR 545 (SCA) para 9.

[3] See S v V 1972 (3) SA 611 (A) at 614H.

[4] Note 2 para 10.

[5] S v Skenjana 1985 (3) SA 51 (A) at 54I-55E; S v Moswathupa (note 2) para 10; S v Muller & another (note 2) para 10.

[6] S v Stander 2012 (1) SACR 537 (SCA).

[7] Para 12.

[8] Para 16.

[9] For an exceptional case in which the fixing of a non-parole period was justified, see S v Mshumpa & another 2008 (1) SACR 126 (E) paras 78-87. See S v Stander (note 6) paras 10 and 16.